[G.R. No. 116437. March 3, 1997.

]
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. PABLITO ANDAN y HERNANDEZ @
BOBBY, Accused-Appellant.
The Solicitor General for Plaintiff-Appellee.
Miguel P. Pineda for Accused-Appellant.
SYLLABUS
1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT OF THE ACCUSED UNDER CUSTODIAL INVESTIGATION;
RATIONALE FOR THE EXCLUSION RULE THEREON. Any person under investigation for the commission of
an offense shall have the right (1) to remain silent; (2) to have competent and independent counsel
preferably of his own choice; and (3) to be informed of such rights. These rights cannot be waived except in
writing and in the presence of counsel. Any confession or admission obtained in violation of this provision is
inadmissible in evidence against him. The exclusionary rule is premised on the presumption that the
defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation
procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent. The
incommunicado character of custodial interrogation or investigation also obscure a later judicial
determination of what really transpired.
2. ID.; ID.; ID.; BEGINS WHEN THE INVESTIGATION STARTS TO FOCUS ON A PARTICULAR PERSON AS A
SUSPECT. It should be stressed that the rights under Section 12 are accorded to" [a]ny person under
investigation for the commission of an offense." An investigation begins when it is no longer a general
inquiry into an unsolved crime but starts to focus on a particular person as a suspect, i.e., when the police
investigator starts interrogating or exacting a confession from the suspect in connection with an alleged
offense. As intended by the 1971 Constitutional Convention, this covers "investigation conducted by police
authorities which will include investigations conducted by the municipal police, the PC and the NBI and such
other police agencies in our government."
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3. ID.; ID.; ID.; EXCLUSIONARY RULE; NOT APPLICABLE TO THE SPONTANEOUS STATEMENT MADE BY THE
ACCUSED WHICH WERE NOT ELICITED THROUGH QUESTIONING BY THE AUTHORITIES; CASE AT BAR.
Under the circumstances in this case, it cannot be successfully claimed that appellants confession before the
mayor is inadmissible. It is true that a municipal mayor has "operational supervision and control" over the
local police and may arguably be deemed a law enforcement officer for purposes of applying Section 12 (1)
and (3) of Article III of the Constitution. However, appellants confession to the mayor was not made in
response to any interrogation by the latter. In fact, the mayor did not question appellant at all. No police
authority ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and
voluntarily sought the mayor for a private meeting. The mayor did not know that appellant was going to
confess his guilt to him. When appellant talked with the mayor as a confidant and not as a law enforcement
officer, his uncounseled confession to him did not violate his constitutional rights. Thus, it has been held that
the constitutional procedures on custodial investigation do not apply to a spontaneous statement, not
elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally
admitted having committed the crime. What the Constitution bars is the compulsory disclosure of
incriminating facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use
of coercion by the state as would lead the accused to admit something false, not to prevent him from freely
and voluntarily telling the truth. Hence, we hold that appellants confession to the mayor was correctly
admitted by the trial court.
4. ID.; ID.; ID.; ID.; NOT APPLICABLE TO CONFESSIONS MADE BY THE ACCUSED IN RESPONSE TO
QUESTIONS BY NEWS REPORTERS; CASE AT BAR. Appellants confessions to the media were likewise
properly admitted. The confessions were made in response to questions by news reporters, not by the police
or any other investigating officer. We have held that statements spontaneously made by a suspect to news
reporters on a televised interview are deemed voluntary and are admissible in evidence. Clearly, appellants
confessions to the news reporters were given free from any undue influence from the police authorities. The
news reporters acted as news reporters when they interviewed appellant. They were not acting under the
direction and control of the police. They were there to check appellants confession to the mayor. They did
not force appellant to grant them an interview and reenact the commission of the crime. In fact, they asked
his permission before interviewing him. They interviewed him on separate days not once did appellant

protest his innocence. Instead, he repeatedly confessed his guilt to them. He even supplied all the details in
the commission of the crime, and consented to its reenactment. All his confessions to the news reporters
were witnessed by his family and other relatives. There was no coercive atmosphere in the interview of
appellant by the news reporters.
5. ID.; ID.; ID.; ID.; ID.; RATIONALE. We rule that appellants verbal confessions to the newsmen are not
covered by Section 12 (1) and (3) of Article III of the Constitution. The Bill of Rights does not concern itself
with the relation between a private individual and another individual. It governs the relationship between the
individual and the State. The prohibitions therein are primarily addressed to the State and its agents. They
confirm that certain rights of the individual exist without need of any governmental grant, rights that may
not be taken away by government, rights that government has the duty to protect. Governmental power is
not unlimited and the Bill of Rights lays down these limitations to protect the individual against aggression
and unwarranted interference by any department of government and its agencies.
6. CRIMINAL LAW; RAPE; ABSENCE OF SPERMATOZOA DOES NOT NEGATE THE COMMISSION THEREOF.
We have also ruled in the past that the absence of spermatozoa in the vagina does not negate the
commission of rape nor does the lack of complete penetration or rupture of the hymen. What is essential is
that there be penetration of the female organ no matter how slight.
DECISION
PER CURIAM:
Accused-appellant Pablito Andan y Hernandez alias "Bobby" was accused of the crime of rape with homicide
committed as follows:
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"That on or about the 19th day of February 1994, in the municipality of Baliuag, province of Bulacan,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd design,
by means of violence and intimidation, did then and there wilfully, unlawfully and feloniously have carnal
knowledge of one Marianne Guevarra y Reyes against her will and without her consent; and the abovenamed accused in order to suppress evidence against him and delay (sic) the identity of the victim, did then
and there wilfully, unlawfully and feloniously, with intent to kill the said Marianne Guevarra y Reyes, attack,
assault and hit said victim with concrete hollow blocks in her face and in different parts of her body, thereby
inflicting upon her mortal wounds which directly caused her death.
Contrary to Law." 1
The prosecution established that on February 19, 1994 at about 4:00 P.M., in Concepcion Subdivision,
Baliuag, Bulacan, Marianne Guevarra, twenty years of age and a second-year student at the Fatima School
of Nursing, left her home for her school dormitory in Valenzuela, Metro Manila. She was to prepare for her
final examinations on February 21, 1994. Marianne wore a striped blouse and faded denim pants and
brought with her two bags containing her school uniforms, some personal effects and more than P2,000.00
in cash.
Marianne was walking along the subdivision when appellant invited her inside his house. He used the pretext
that the blood pressure of his wifes grandmother should be taken. Marianne agreed to take her blood
pressure as the old woman was her distant relative. She did not know that nobody was inside the house.
Appellant then punched her in the abdomen, brought her to the kitchen and raped her. His lust sated,
appellant dragged the unconscious girl to an old toilet at the back of the house and left her there until dark.
Night came and appellant pulled Marianne, who was still unconscious, to their backyard. The yard had a
pigpen bordered on one side by a six-foot high concrete fence. On the other side was a vacant lot. Appellant
stood on a bench beside the pigpen and then lifted and draped the girls body over the fence to transfer it to
the vacant lot. When the girl moved, he hit her head with a piece of concrete block. He heard her moan and
hit her again on the face. After silence reigned, he pulled her body to the other side of the fence, dragged it
towards a shallow portion of the lot and abandoned it. 2
At 11:00 A.M. of the following day, February 20, 1994, the body of Marianne was discovered. She was naked
from the chest down with her brassiere and T-shirt pulled toward her neck. Nearby was found a panty with a
sanitary napkin.

The autopsy conducted by Dr. Alberto Bondoc revealed that Marianne died of "traumatic injuries" sustained
as follows:
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"1. Abrasions:

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1.1 chest and abdomen, multiple, superficial, linear, generally oblique from right to left.
2. Abrasions/contusions:

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2.1 temple, right.

2.2 cheek, right.
2.3 upper and lower jaws, right.
2.4 breast, upper inner quadrant, right.
2.5 breast, upper outer quadrant, left.
2.6 abdomen, just above the umbilicus, rectangular, approximate 3 inches in width, from right MCL to left
AAL.
2.7. elbow joint, posterior, bilateral.
3. Hematoma:

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3.1 upper and lower eyelids, bilateral.

3.2 temple, lateral to the outer edge of eyebrow, right.
3.3 upper and lower jaws, right.
4. Lacerated wounds:

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4.1 eyebrow, lateral border, right, 1/2 inch.

4.2 face, from right cheek below the zygoma to midline lower jaw, 4 inches.
5. Fractures:

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5.1 maxillary bone, right.

5.2 mandible, multiple, complete, right, with avulsion of 1st and 2nd incisors.
6. Cerebral contusions, inferior surface, temporal and frontal lobes, right.
7. External genitalia
7.1 minimal blood present.
7.2 no signs of recent physical injuries noted on both labia, introitus and exposed vaginal wall.
8. Laboratory examination of smear samples from the vaginal cavity showed negative for spermatozoa
(Bulacan Provincial Hospital, February 22, 1994, by Dr. Wilfredo S. de Vera).
CAUSE OF DEATH: Cardiorespiratory Arrest due to Cerebral Contusions due to Traumatic Injuries, Face." 3
Mariannes gruesome death drew public attention and prompted Mayor Cornelio Trinidad of Baliuag to form a
crack team of police officers to look for the criminal. Searching the place where Mariannes body was found,
the policemen recovered a broken piece of concrete block stained with what appeared to be blood. They also
found a pair of denim pants and a pair of shoes which were identified as Mariannes. 4

Appellants nearby house was also searched by the police who found bloodstains on the wall of the pigpen in
the backyard. They interviewed the occupants of the house and learned from Romano Calma, the
stepbrother of appellants wife, that accused-appellant also lived there but that he, his wife and son left
without a word. Calma surrendered to the police several articles consisting of pornographic pictures, a pair
of wet short pants with some reddish brown stain, a towel also with the stain, and a wet T-shirt. The clothes
were found in the laundry hamper inside the house and allegedly belonged to appellant. 5
The police tried to locate appellant and learned that his parents live in Barangay Tangos, Baliuag, Bulacan.
On February 24 at 11:00 P.M., a police team led by Mayor Trinidad traced appellant in his parents house.
They took him aboard the patrol jeep and brought him to the police headquarters where he was
interrogated. Initially, appellant denied any knowledge of Mariannes death. However, when the police
confronted him with the concrete block, the victims clothes and the bloodstains found in the pigpen,
appellant relented and said that his neighbors, Gilbert Larin and Reynaldo Dizon, killed Marianne and that he
was merely a lookout. He also said that he knew where Larin and Dizon hid the two bags of Marianne. 6
Immediately, the police took appellant to his house. Larin and Dizon, who were rounded up earlier, were
likewise brought there by the police. Appellant went to an old toilet at the back of the house, leaned over a
flower pot and retrieved from a canal under the pot, two bags which were later identified as belonging to
Marianne. Thereafter, photographs were taken of appellant and the two other suspects holding the bags. 7
Appellant and the two suspects were brought back to the police headquarters. The following day, February
25, a physical examination was conducted on the suspects by the Municipal Health Officer, Dr. Orpha
Patawaran. 8 Appellant was found to sustain:
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"HEENT: with multiple scratches on the neck Rt side. Chest and back: with abrasions (scratches at the back).
Extremities: freshly-healed wound along index finger 1.5 cm. in size Lt." 9
By this time, people and media representatives were already gathered at the police headquarters awaiting
the results of the investigation. Mayor Trinidad arrived and proceeded to the investigation room. Upon seeing
the mayor, appellant approached him and whispered a request that they talk privately. The mayor led
appellant to the office of the Chief of Police and there, appellant broke down and said "Mayor, patawarin mo
ako! I will tell you the truth. I am the one who killed Marianne." The mayor opened the door of the room to
let the public and media representatives witness the confession. The mayor first asked for a lawyer to assist
appellant but since no lawyer was available he ordered the proceedings photographed and videotaped. 10 In
the presence of the mayor, the police, representatives of the media and appellants own wife and son,
appellant confessed his guilt. He disclosed how he killed Marianne and volunteered to show them the place
where he hid her bags. He asked for forgiveness from Larin and Dizon whom he falsely implicated saying he
did it because of ill-feelings against them. 11 He also said that the devil entered his mind because of the
pornographic magazines and tabloid he read almost everyday. 12 After his confession, appellant hugged his
wife and son and asked the mayor to help him. 13 His confession was captured on videotape and covered by
the media nationwide. 14
Appellant was detained at the police headquarters. The next two days, February 26 and 27, more
newspaper, radio and television reporters came. Appellant was again interviewed and he affirmed his
confession to the mayor and reenacted the crime. 15
On arraignment, however, appellant entered a plea of "not guilty." He testified that in the afternoon of
February 19, 1994 he was at his parents house in Barangay Tangos attending the birthday party of his
nephew. He, his wife and son went home after 5:00 P.M. His wife cooked dinner while he watched their oneyear old son. They all slept at 8:00 P.M. and woke up the next day at 6:00 in the morning. His wife went to
Manila to collect some debts while he and his son went to his parents house where he helped his father
cement the floor of the house. His wife joined them in the afternoon and they stayed there until February
24, 1994 when he was picked up by the police. 16
Appellant was brought by the police to a hotel at Bagong Nayon, Baliuag. In one of the rooms, the
policemen covered his face with a bedsheet and kicked him repeatedly. They coerced him to confess that he
raped and killed Marianne. When he refused, they pushed his head into a toilet bowl and injected something
into his buttocks. Weakened, appellant confessed to the crime. Thereafter, appellant was taken to his house
where he saw two of his neighbors, Larin and Dizon. He was ordered by the police to go to the old toilet at
the back of the house and get two bags from under the flower pot. Fearing for his life, appellant did as he
was told. 17
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In a decision dated August 4, 1994, the trial court convicted appellant and sentenced him to death pursuant
to Republic Act No. 7659. The trial court also ordered appellant to pay the victims heirs P50,000.00 as
death indemnity, P71,000.00 as actual burial expenses and P100,000.00 as moral damages, thus:
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"WHEREFORE, in view of the foregoing, Pablito Andan y Hernandez alias "Bobby" is found guilty by proof
beyond a scintilla of doubt of the crime charged in the Information (Rape with Homicide) and penalized in
accordance with R.A. No. 7659 (Death Penalty Law) Sec. 11, Par. 8, classifying this offense as one of the
heinous crimes and hereby sentences him to suffer the penalty of DEATH; to indemnify the family of
Marianne Guevarra the amount of P50,000.00 for the death of Marianne Guevarra and P71,000.00 as actual
burial and incidental expenses and P100,000.00 as moral damages. After automatic review of this case and
the decision becomes final and executory, the sentence be carried out.
SO ORDERED." 18
This case is before us on automatic review in accordance with Section 22 of Republic Act No. 7659 amending
Article 47 of the Revised Penal Code.
Appellant contends that:

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"I THE LOWER COURT ERRED IN ADMITTING AND USING AS BASIS OF JUDGMENT OF CONVICTION THE
TESTIMONIES OF THE POLICE INVESTIGATORS, REPORTERS AND THE MAYOR ON THE ALLEGED ADMISSION
OF THE ACCUSED DURING THE CUSTODIAL INVESTIGATION, THE ACCUSED NOT BEING ASSISTED BY
COUNSEL IN VIOLATION OF THE CONSTITUTION;
II THE LOWER COURT ERRED IN FINDING THAT THERE WAS RAPE WHEN THERE IS NO EVIDENCE OF ANY
KIND TO SUPPORT IT;
III THE LOWER COURT ERRED IN MAKING A FINDING OF CONVICTION WHEN THE EVIDENCE IN ITS
TOTALITY SHOWS THAT THE PROSECUTION FAILED TO PROVE BEYOND REASONABLE DOUBT THE GUILT OF
THE ACCUSED." 19
The trial court based its decision convicting appellant on the testimonies of the three policemen of the
investigating team, the mayor of Baliuag and four news reporters to whom appellant gave his extrajudicial
oral confessions. It was also based on photographs and video footages of appellants confessions and
reenactments of the commission of the crime.
Accused-appellant assails the admission of the testimonies of the policemen, the mayor and the news
reporters because they were made during custodial investigation without the assistance of counsel. Section
12, paragraphs (1) and (3) of Article III of the Constitution provides:
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"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) . . .
(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in
evidence against him.
(4) . . ."

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Plainly, any person under investigation for the commission of an offense shall have the right (1) to remain
silent; (2) to have competent and independent counsel preferably of his own choice; and (3) to be informed
of such rights. These rights cannot be waived except in writing and in the presence of counsel. 20 Any
confession or admission obtained in violation of this provision is inadmissible in evidence against him. 21
The exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar
atmosphere and runs through menacing police interrogation procedures where the potentiality for
compulsion, physical and psychological, is forcefully apparent. 22 The incommunicado character of custodial
interrogation or investigation also obscures a later judicial determination of what really transpired. 23
It should be stressed that the rights under Section 12 are accorded to" [a]ny person under investigation for

the commission of an offense." An investigation begins when it is no longer a general inquiry into an
unsolved crime but starts to focus on a particular person as a suspect, i.e., when the police investigator
starts interrogating or exacting a confession from the suspect in connection with an alleged offense. 24 As
intended by the 1971 Constitutional Convention, this covers "investigation conducted by police authorities
which will include investigations conducted by the municipal police, the PC and the NBI and such other police
agencies in our government."25
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When the police arrested appellant, they were no longer engaged in a general inquiry about the death of
Marianne. Indeed, appellant was already a prime suspect even before the police found him at his parents
house. This is clear from the testimony of SPO4 Danilo S. Bugay, the police chief investigator of the crime,
viz:
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"COURT How did you come about in concluding that it was accused who did this act?
WITNESS First, the place where Marianne was last found is at the backyard of the house of the accused.
Second, there were blood stains at the pigpen, and third, when we asked Romano Calma who were his other
companions in the house, he said that, it was Pablito Andan who cannot be found at that time and whose
whereabouts were unknown, sir.
Q So you had a possible suspect?
A Yes, sir.
Q You went looking for Pablito Andan?
A Yes, sir.
Q And then, what else did you do?
A We tried to find out where we can find him and from information we learned that his parents live in
Barangay Tangos in Baliuag. We went there, found him there and investigated him and in fact during the
investigation he admitted that he was the culprit." 26
Appellant was already under custodial investigation when he confessed to the police. It is admitted that the
police failed to inform appellant of his constitutional rights when he was investigated and interrogated. 27
His confession is therefore inadmissible in evidence. So too were the two bags recovered from appellants
house. SPO2 Cesar Canoza, a member of the investigating team testified:
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"Atty. Valmores: You told the court that you were able to recover these bags marked as Exhs. B and B-1
because accused pointed to them, where did he point these bags?
A At the police station, sir, he told us that he hid the two (2) bags beneath the canal of the toilet.
Q In other words, you were given information where these two (2) bags were located?
A Yes, sir.
Q And upon being informed where the two (2) bags could be located what did you do?
A We proceeded to the place together with the accused so that we would know where the two (2) bags were
hidden, sir.
Q And did you see actually those two (2) bags before the accused pointed to the place where the bags were
located?
A After he removed the broken pots with which he covered the canal, he really showed where the bags were
hidden underneath the canal, sir." 28
The victims bags were the fruits of appellants uncounselled confession to the police. They are tainted
evidence, hence also inadmissible. 29
The police detained appellant after his initial confession. The following day, Mayor Trinidad visited the

appellant. Appellant approached the mayor and requested for a private talk. They went inside a room and
appellant confessed that he alone committed the crime. He pleaded for forgiveness. Mayor Trinidad testified,
viz:
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"Mayor Trinidad: . . . During the investigation when there were already many people from the media, Andan
whispered something to me and requested that he be able to talk to me alone, so what I did was that, I
brought him inside the office of the chief of police.
Private Prosecutor Principe: And so what happened inside the office of the Chief of Police, mayor?
A While inside the office of the headquarters he told me "Mayor patawarin mo ako,! I will tell you the truth. I
am the one who killed Marianne." So when he was telling this to me, I told him to wait a while, then I
opened the door to allow the media to hear what he was going to say and I asked him again whether he was
the one who did it, he admitted it, sir. This was even covered by a television camera." 30
x

Q During that time that Pablito Andan whispered to you that he will tell you something and then you
responded by bringing him inside the office of the Chief of Police and you stated that he admitted that he
killed Marianne . . .
Court: He said to you the following words . . .
Atty. Principe: He said to you the following words "Mayor, patawarin mo ako! Ako ang pumatay kay
Marianne," was that the only admission that he told you?
A The admission was made twice. The first one was, when we were alone and the second one was before the
media people, sir.
Q What else did he tell you when you were inside the room of the Chief of Police?
A These were the only things that he told me, sir. I stopped him from making further admissions because I
wanted the media people to hear what he was going to say, sir." 31
Under these circumstances, it cannot be successfully claimed that appellants confession before the mayor is
inadmissible. It is true that a municipal mayor has "operational supervision and control" over the local police
32 and may arguably be deemed a law enforcement officer for purposes of applying Section 12 (1) and (3)
of Article III of the Constitution. However, appellants confession to the mayor was not made in response to
any interrogation by the latter. 33 In fact, the mayor did not question appellant at all. No police authority
ordered appellant to talk to the mayor. It was appellant himself who spontaneously, freely and voluntarily
sought the mayor for a private meeting. The mayor did not know that appellant was going to confess his
guilt to him. When appellant talked with the mayor as a confidant and not as a law enforcement officer, his
uncounselled confession to him did not violate his constitutional rights. 34 Thus, it has been held that the
constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited
through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted
having committed the crime. 35 What the Constitution bars is the compulsory disclosure of incriminating
facts or confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by
the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily
telling the truth. 36 Hence we hold that appellants confession to the mayor was correctly admitted by the
trial court.
Appellants confessions to the media were likewise properly admitted. The confessions were made in
response to questions by news reporters, not by the police or any other investigating officer. We have held
that statements spontaneously made by a suspect to news reporters on a televised interview are deemed
voluntary and are admissible in evidence. 37
The records show that Alex Marcelino, a television reporter for "Eye to Eye" on Channel 7, interviewed
appellant on February 27, 1994. The interview was recorded on video and showed that appellant made his
confession willingly, openly and publicly in the presence of his wife, child and other relatives. 38 Orlan
Mauricio, a reporter for "Tell the People" on Channel 9 also interviewed appellant on February 25, 1994. He
testified that:
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"Atty. Principe: You mentioned awhile ago that you were able to reach the place where the body of Marianne
was found, where did you start your interview, in what particular place?
Mr. Mauricio: Actually, I started my news gathering and interview inside the police station of Baliuag and I
identified myself to the accused as I have mentioned earlier, sir. At first, I asked him whether he was the
one who raped and killed the victim and I also learned from him that the victim was his cousin.
Q And what was the response of Pablito Andan?
A His response was he is a cousin of the victim and that he was responsible for raping and killing the victim,
sir. And then I asked him whether his admission was voluntary or that there was a threat, intimidation or
violence that was committed on his person because I knew that there were five other suspects in this case
and he said that he was admitting it voluntarily to the policemen. I asked him whether he was under the
influence of drugs but he said no, and "nakainom lang," sir.
Q You mentioned earlier that the uncle of the accused was present, was the uncle beside him at the time
that you asked the question?
A The uncle was there including the barangay captain whose name I cannot recall anymore. A barangay
captain of the place, I dont know if it is the place of the crime scene or in the place where Marianne
Guevarra resides but . . . All throughout the scene inside the office of the Station Commander, there was no
air of any force or any threatening nature of investigation that was being done on the suspect, that is why, I
was able to talk to him freely and in a voluntary manner he admitted to me that he was the one who raped
and killed, so we went to the next stage of accompanying me to the scene of the crime where the
reenactment and everything that transpired during the killing of Marianne Guevarra.
Q Before you started that interview, did you inform or ask permission from the accused Pablito Andan that
you were going to interview him?
A Yes, sir.
x

Q You mentioned that after interviewing the accused at the office of the Baliuag PNP, you also went to the
scene of the crime?
A Yes, sir.
Q Who accompanied you?
A I was accompanied by some Baliuag policemen including Mayor Trinidad and some of the relatives of the
accused.
Q At this time, did you see the wife of the accused, Pablito Andan?
A Yes, sir, I saw her at the place where the body of Guevarra was recovered.
Q How many relatives of accused Pablito Andan were present, more or less?
A There were many, sir, because there were many wailing, weeping and crying at that time when he was
already taken in the patrol jeep of the Baliuag police, sir.
Q Now, Mr. Mauricio, upon reaching the scene of the crime in Concepcion, Baliuag, Bulacan, what transpired?
A I started my work as a reporter by trying to dig deeper on how the crime was committed by the accused,
so we started inside the pigpen of that old house where I tried to accompany the accused and asked him to
narrate to me and show me how he carried out the rape and killing of Marianne Guevarra, sir.
Q Did he voluntarily comply?

A Yes, sir, in fact, I have it on my videotape.

Q It is clear, Mr. Mauricio, that from the start of your interview at the PNP Baliuag up to the scene of the
crime, all the stages were videotaped by you?
A Yes, sir. 39
Journalist Berteni Causing of "Peoples Journal Tonite" likewise covered the proceedings for three successive
days. 40 His testimony is as follows:
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"Atty. Principe: You mentioned that you had your own inquiries?
A We asked first permission from the mayor to interrupt their own investigation so that we can have a direct
interview with the suspect.
Q Were there people?
A The people present before the crowd that included the mayor, the deputy chief of police, several of the
policemen, the group of Inday Badiday and several other persons. I asked the suspect after the mayor
presented the suspect to us and after the suspect admitted that he was the one who killed Marianne. I
reiterated the question to the suspect. Are you aware that this offense which is murder with . . . rape with
murder is a capital offense? And you could be sentenced to death of this? And he said, Yes. So do you really
admit that you were the one who did it and he repeated it, I mean, say the affirmative answer.
Q And that was in the presence of the crowd that you mentioned a while ago?
A Yes, yes, sir. And if I remember it right, as I took my camera to take some pictures of the suspect, the
mayor, the policemen and several others, I heard the group of Inday Badiday asking the same questions
from the suspect and the suspect answered the same.
Q Also in the presence of so many people that you mentioned?
A The same group of people who were there, sir.
Q You mentioned that the answer was just the same as the accused answered you affirmatively, what was
the answer, please be definite?
Court: Use the vernacular.
A I asked him the question, after asking him the question," Ikaw ba talaga and gumawa ng pagpatay at
pag-rape sa kay Marianne? Ang sagot nya, "Oo." "Alam mo ba itong kasalanang ito, kamatayan ang hatol,
inaamin mo pa ba na ikaw ang gumawa sa pagpatay at pag-rape kay Marianne?" Sagot pa rin siya ng "Oo."

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Q Did you ask him, why did you kill Marianne?

A I asked him, your Honor and the reason he told me was because a devil gripped his mind and because of
that according to him, your Honor, were the pornographic magazines, pornographic tabloids which he,
according to him, reads almost everyday before the crime.
Atty. Principe: At the time of your interview, Mr. Reporter, will you tell the court and the public what was the
physical condition of accused Pablito Andan?
A As I observed him that time there was no sign on his body that he was really down physically and I think
he was in good condition.
Court: So he was not happy about the incident?
A He even admitted it, your Honor.

Court: He was happy?

A He admitted it. He was not happy after doing it.
Court: Was he crying?
A As I observed, your Honor, the tears were only apparent but there was no tear that fell on his face.
Court: Was he feeling remorseful?
A As I observed it, it was only slightly, your Honor.
x

x" 41

Another journalist, Rey Domingo, of "Bandera" interviewed appellant on February 26, 1994. 42 He also
testified that:
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"Atty. Principe: Now, Mr. Witness, did the accused Pablito Andan give you the permission that you asked
from him?
A Yes, sir.
Q And when he allowed you to interview him, who were present?
A The first person that I saw there was Mayor Trinidad, policemen from Baliuag, the chief investigator, SPO4
Bugay, and since Katipunan, the chief of police was suspended, it was the deputy who was there, sir.
Q Were they the only persons who were present when you interviewed the accused?
A There were many people there, sir. The place was crowded with people. There were people from the PNP
and people from Baliuag, sir.
Q How about the other representatives from the media?
A Roy Reyes, Orlan Mauricio arrived but he arrived late and there were people from the radio and from TV
Channel 9.
Q How about Channel 7?
A They came late. I was the one who got the scoop first, sir.
Q You stated that the accused allowed you to interview him, was his wife also present?
A Yes, sir, and even the son was there but I am not very sure if she was really the wife but they were
hugging each other and she was crying and from the questions that I asked from the people there they told
me that she is the wife, sir.
Q How about the other members of the family of the accused, were they around?
A I do not know the others, sir, but there were many people there, sir.
Q Now, according to you, you made a news item about the interview. May we know what question did you
ask and the answer.
A My first question was, is he Pablito Andan and his answer was "Yes."

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Q What was the next question?

A I asked him how he did the crime and he said that, he saw the victim aboard a tricycle. He called her up.
She entered the house and he boxed her on the stomach.
Q What was the next question that you asked him?

A He also said that he raped her and he said that the reason why he killed the victim was because he was
afraid that the incident might be discovered, sir.
Q Now, after the interview, are we correct to say that you made a news item on that?
A Yes, sir, based on what he told me. Thats what I did.
Q Were there other questions propounded by you?
A Yes, sir.
Q "Ano iyon?"
A He said that he threw the cadaver to the other side of the fence, sir.
Q Did he mention how he threw the cadaver of Marianne to the other side of the fence?
A I cannot remember the others, sir.
Q But can you produce the news item based on that interview?
A I have a xerox copy here, sir.
x

x" 43

Clearly, appellants confessions to the news reporters were given free from any undue influence from the
police authorities. The news reporters acted as news reporters when they interviewed appellant. 44 They
were not acting under the direction and control of the police. They were there to check appellants
confession to the mayor. They did not force appellant to grant them an interview and reenact the
commission of the crime. 45 In fact, they asked his permission before interviewing him. They interviewed
him on separate days not once did appellant protest his innocence. Instead, he repeatedly confessed his
guilt to them. He even supplied all the details in the commission of the crime, and consented to its
reenactment. All his confessions to the news reporters were witnessed by his family and other relatives.
There was no coercive atmosphere in the interview of appellant by the news reporters.
We rule that appellants verbal confessions to the newsmen are not covered by Section 12 (1) and (3) of
Article III of the Constitution. The Bill of Rights does not concern itself with the relation between a private
individual and another individual. 46 It governs the relationship between the individual and the State. The
prohibitions therein are primarily addressed to the State and its agents. They confirm that certain rights of
the individual exist without need of any governmental grant, rights that may not be taken away by
government, rights that government has the duty to protect. 47 Governmental power is not unlimited and
the Bill of Rights lays down these limitations to protect the individual against aggression and unwarranted
interference by any department of government and its agencies. 48
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In his second assigned error, appellant questions the sufficiency of the medical evidence against him. Dr.
Alberto Bondoc, a Medical Specialist with the Provincial Health Office, conducted the first autopsy and found
no spermatozoa and no recent physical injuries in the hymen. 49 Allegedly, the minimal blood found in her
vagina could have been caused by her menstruation. 50
We are unpersuaded. A second autopsy was conducted on March 1, 1994 by Dr. Dominic L. Aguda, a
medico-legal officer of the National Bureau of Investigation. His findings affirmed the absence of
spermatozoa but revealed that the victims hymen had lacerations, thus:
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"Hymen contracted, tall, thin with fresh lacerations with clotted blood at 6 and 3 oclock positions
corresponding to the walls of the clock." 51
Dr. Aguda testified that the lacerations were fresh and that they may have been caused by an object forcibly
inserted into the vagina when the victim was still alive, indicating the possibility of penetration. 52 His
testimony is as follows:
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"Witness: When I exposed the hymen, I found lacerations in this 3 oclock and 6 oclock position

corresponding to the walls of the clock. . . .

Court: Include the descriptive word, fresh.
Witness: I put it in writing that this is fresh because within the edges of the lacerations, I found blood clot,
that is why I put it into writing as fresh.
Atty. Valmonte: Now, Doctor, you told the Court that what you did on the cadaver was merely a re-autopsy,
that means, doctor the body was autopsied first before you did you re-autopsy?
A Yes, sir.
Q Could it not be, doctor, that these injuries you found in the vagina could have been sustained on account
of the dilation of the previous autopsy?
A Well, we presumed that if the first doctor conducted the autopsy on the victim which was already dead, no
amount of injury or no amount of lacerated wounds could produce blood because there is no more
circulation, the circulation had already stopped. So, I presumed that when the doctor examined the victim
with the use of forceps or retractor, vaginal retractor, then I assumed that the victim was already dead. So it
is impossible that the lacerated wounds on the hymen were caused by those instruments because the victim
was already dead and usually in a dead person we do not produce any bleeding.
Q What you would like to tell the Court is this: that the lacerations with clotted blood at 6 and 3 oclock
positions corresponding to the walls of the clock could have been inflicted or could have been sustained
while the victim was alive?
A Yes, sir.
Q This clotted blood, according to you, found at the edges of the lacerated wounds, now will you kindly go
over the sketch you have just drawn and indicate the edges of the lacerated wounds where you found the
clotted blood?
A This is the lacerated wound at 3 oclock and this is the lacerated wound at 6 oclock. I found the blood clot
at this stage. The clotted blood are found on the edges of the lacerated wounds, sir.
Q What could have caused those lacerations?
A Well, it could have been caused by an object that is forcibly inserted into that small opening of the hymen
causing lacerations on the edges of the hymen, sir.
Q If the victim had sexual intercourse, could she sustain those lacerations?
A It is possible, sir. 53
We have also ruled in the past that the absence of spermatozoa in the vagina does not negate the
commission rape 54 nor does the lack of complete penetration or rupture of the hymen. 55 What is essential
is that there be penetration of the female organ no matter how slight. 56 Dr. Aguda testified that the fact of
penetration is proved by the lacerations found in the victims vagina. The lacerations were fresh and could
not have been caused by any injury in the first autopsy.
Dr. Agudas finding and the allegation that the victim was raped by appellant are supported by other
evidence, real and testimonial, obtained from an investigation of the witnesses and the crime scene, viz:

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(1) The victim, Marianne, was last seen walking along the subdivision road near appellants house; 57
(2) At that time, appellants wife and her step brother and grandmother were not in their house; 58
(3) A bloodstained concrete block was found over the fence of appellants house, a meter away from the
wall. Bloodstains were also found on the grass nearby and at the pigpen at the back of appellants house;
59
(4) The victim sustained bruises and scars indicating that her body had been dragged over a flat rough

surface. 60 This supports the thesis that she was thrown over the fence and dragged to where her body was
found;
(5) Appellants bloodstained clothes and towel were found in the laundry hamper in his house;
(6) The reddish brown stains in the towel and T-shirt of appellant were found positive for the presence of
blood type "B," the probable blood type of the victim. 61 Mariannes exact blood type was not determined
but her parents had type "A" and type "AB." 62 The victims pants had bloodstains which were found to be
type "O," appellants blood type; 63
(7) Appellant had scratch marks and bruises in his body which he failed to explain; 64
(8) For no reason, appellant and his wife left their residence after the incident and were later found at his
parents house in Barangay Tangos, Baliuag, Bulacan; 65
In fine, appellants extrajudicial confessions together with the other circumstantial evidence justify the
conviction of Appellant.
Appellants defense of alibi cannot overcome the prosecution evidence. His alibi cannot even stand the test
of physical improbability at the time of the commission of the crime. Barangay Tangos is only a few
kilometers away from Concepcion Subdivision and can be traversed in less than half an hour. 66
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 15, Malolos, Bulacan in Criminal Case
No. 1109-M-94 is affirmed and accused-appellant Pablito Andan y Hernandez is found guilty of the special
complex crime of rape with homicide under Section 11 of Republic Act No. 7659 amending Article 335 of the
Revised Penal Code and is sentenced to the penalty of death, with two (2) members of the Court, however,
voting to impose reclusion perpetua. Accused-appellant is also ordered to indemnify the heirs of the victim,
Marianne Guevarra, the sum of P50,000.00 as civil indemnity for her death and P71,000.00 as actual
damages.
In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised Penal Code, upon
finality of this decision, let the records of this case be forthwith forwarded to the Office of the President for
possible exercise of the pardoning power.

[G.R. No. 135862. May 2, 2002.]

THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. RAFAEL PRINCIPE y MOLINA,Accused-

Appellant.
DECISION
PER CURIAM:
This case is here for review pursuant to Rule 122, Sec. 3, par. (d), and Sec. 10 of the Revised Rules of
Criminal Procedure in view of the decision, 1 dated September 18, 1998, of the Regional Trial Court, Branch
27, Cabanatuan City, imposing on accused-appellant Rafael Principe y Molina the penalty of death for the
rape-slaying of a 6-year old child, Arlene Ipurong, in Cabanatuan City on August 9, 1998.
cralaw : re d

The information against accused-appellant alleged:

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"That on or about the 9th day of August, 1998, in the City of Cabanatuan, Republic of the Philippines and
within the jurisdiction of this Honorable Court, the above-named accused, with lewd design and by means of
force and intimidation, did then and there, willfully, unlawfully and feloniously have carnal knowledge of one
ARLENE IPURONG y GONZALES, who was then 6 years of age and by reason of (or) on the occasion thereof,
said ARLENE IPURONG y GONZALES was killed." 2
Upon arraignment, during which the information was read, interpreted, and explained to accused-appellant
and the consequences of a plea of guilt explained to him, Accused-appellant, assisted by counsel, pleaded
guilty 3 to the charge, whereupon the trial court ordered the prosecution to present evidence to prove the
guilt of accused-appellant and the precise degree of his culpability. Accordingly, the prosecution presented
five witnesses, namely: Lerma Morales, 4 Frederick Agrigado, 5 Miguel Bernabe, 6 Alfredo Apan, 7 and
Danilo Ipurong. 8 Their testimonies established the following facts:
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Accused-appellant, an elementary graduate and then 19 years old, had a drinking spree with eight friends at
the birthday party of Freddie Saragpon, held in the latters house on Perigola Street, Valdefuente,
Cabanatuan City on August 9, 1998, starting 9:00 a.m. At about 4:00 p.m., Accused-appellant went to buy
some "pulutan" at the Best-Line Eatery located along the national highway. Accused-appellant had only
maroon shorts on and was wearing slippers. As it was raining, he brought an umbrella with him.
On the way, he passed by the victim, 6-year old Arlene Ipurong, who asked if she could share his umbrella.
Arlene was his niece, her paternal grandmother being the sister of accused-appellants mother. Accusedappellant carried Arlene on his back and went to Best-Line Eatery to buy the "pulutan." 9 They were seen by
witness Alfredo Apan as they passed by the church between 3:00 to 4:00 p.m. Apan was in the church
attending an activity of the Singles for Christ. 10
At the restaurant, Accused-appellant was served by witness Lerma Morales. Lerma noticed the child with
him, whom accused-appellant introduced as his niece. After getting the "pulutan," accused-appellant took
the hand of Arlene, and the two went in the direction of an abandoned house, approximately 10 meters from
the restaurant. 11
Accused-appellant took Arlene to the abandoned house, which was owned by a certain Jet Magno.
There, Accused-appellant ordered Arlene to undress. Although Arlene complied, she told him that she was
going to tell somebody about it. This angered accused-appellant, who picked up a big rock and hit the child
with it three times on the forehead. When Arlene fell unconscious, Accused-appellant pulled down his shorts
to his knees and raped her. Accused-appellant then brought her to the toilet and dumped her into the bowl.
12
At about 5:30 p.m., Accused-appellant went back to Saragpons house. He was still without any shirt on. He
was wet from the rain and was no longer wearing his slippers. As accused-appellant was gone for about one
and a half hours, some of his drinking buddies got tired of waiting for him and already fell asleep. After
giving the "pulutan" to his friends, Accused-appellant left. 13
In the meantime, at about 5:00 p.m. of the same day, Arlenes father, Danilo Ipurong, a tricycle driver,
arrived home from work and, realizing that her daughter was not in their house, started searching for her.
He came upon a group playing "tong-its" but Arlene was not there. 14 Danilo continued his search, now
joined by several people, including Alfredo Apan. Then Apan saw accused-appellant and asked him, "Hindi
ba ikaw ang may dala-dala noong bata sa balikat mo nang pagitan ng 3-4 ng hapon na iyon?" ("Wasnt it

you who was carrying the child sometime between 3 and 4 oclock in the afternoon?") Accused-appellant
denied he was with the child, saying "Si kuya naman, hindi ko dinala ang bata." ("No, I didnt bring the child
with me.") Apan began to suspect that accused-appellant had something to do with the disappearance of
Arlene. He informed the Chief of the Bantay Bayan, Miguel Bernabe, of his suspicions. 15 For this reason,
Bernabe invited accused-appellant for questioning, but the latter denied having anything to do with the
disappearance of the child. 16
At around 8:00 p.m., Alfredo Apan and Danilo Ipurong found the body of Arlene in the toilet bowl in the
abandoned house. Danilo was shocked and he screamed. 17
On August 10, 1998, the body of Arlene was taken to the City Health Office of Cabanatuan City. Upon the
request of PO2 Romeo Lopez, the investigating officer, Dr. Jun B. Concepcion, the medico-legal officer,
conducted an autopsy. His findings are as follows:
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"HT: 100 cm. in length.

(+) Abrasions, multiple, with hematoma and lacerated wounds, (2) linear on the midfrontal area. Abrasions
measuring to 6-5 cms. in diameter extending down to (L) peri-orbital area. This involving the
subconjunctival area, laterally.
(+) Skull fractures, multiple, depressed, frontal area.
(+) Hematomas, both upper arm, medially.
GENITALIA:

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(+) Abrasions, opening of the vagina, 3 OCLOCK, with bleeding.

(+) Abrasions, 12 oclock, fresh, vaginal canal
(+) Vaginal discharges, creamy-white in character flowing out of the vagina. Extracted 0.5 ml for sperm
analysis then submitted to PNP-CRIME LAB, CAPITOL COMPOUND, NE. on same day and place in a
disposable syringe with marking of: X - I.
CAUSE OF DEATH:

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INTRA-CRANIAL INJURIES, SEVERE, SECONDARY TO EXTRA-CRANIAL INJURIES, SEVERE." 18

Dr. Concepcion issued a death certificate indicating the cause of death as:

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"Immediate cause: a. intracranial injuries severe

Antecedent cause: b. Extra cranial injuries severe" 19
Dr. Concepcion testified that Arlene sustained severe fractures on the forehead, which could have been
caused by a hammer, a hollow block, or a hard piece of wood. Likewise, there were hematomas on her
upper arms which were possibly caused by a strong grip from the assailant. In addition, Arlene also
sustained abrasions on the external opening of her genital organ and an abrasion along the vaginal canal,
which could have been caused by the penetration of a penis or some other object. There was fresh blood
coming out of the abrasions. Dr. Concepcion found secretions in the vagina, which could be vaginal
secretions or semen from the assailant. From the vaginal bleeding, Dr. Concepcion concluded that the rape
of Arlene occurred before she died. The victims death was caused by the severe injuries sustained on the
head. 20
An investigation was conducted by the police in the evening of August 9, 1998. Several witnesses pointed to
accused-appellant as the person who was last seen with the victim Arlene.
Accused-appellant was subsequently taken into custody by the police, and an information was filed against
him on August 10, 1998. 21 On August 17, 1998, Accused-appellant was interrogated by the police, to
whom, after reading his rights in Tagalog and in the presence of accused-appellants father and of his
counsel Atty. Cesar Villar, he admitted hitting Arlene with a large rock until she was unconscious and
subsequently raping her. Accused-appellant claimed that he was drunk at that time. 22

On September 18, 1998, the trial court rendered its decision, the dispositive part of which reads:

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"WHEREFORE, premises considered, the Court hereby finds, and so holds, the accused GUILTY, beyond
reasonable doubt, of the crime of Rape with Homicide, and hereby sentences him to suffer the penalty of
DEATH.
The accused is further ordered to indemnify the heirs of the deceased offended party in the sum of
P50,000.00, and the additional sum of P21,307.00 representing funeral expenses.
SO ORDERED." 23
Hence, this appeal. Accused-appellants sole assignment of error is that
"THE COURT A QUO MANIFESTLY ERRED IN CONVICTING THE ACCUSED OF THE CRIME CHARGED DESPITE
HIS IMPROVIDENT PLEA OF GUILT."
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Accused-appellant contends that the trial court failed to ascertain whether accused-appellant was fully
apprised of the legal consequences of his plea, considering that he finished only up to the sixth grade of the
elementary school.
Accused-appellant is correct. When an accused enters a plea of guilt to a capital offense, Section 3 of Rule
116 of the Rules of Criminal Procedure provides that it is the duty of the trial court to observe the following
rules: (1) it must conduct a searching inquiry into the voluntariness and full comprehension of the
consequences of his plea; (2) it must require the prosecution to present evidence to prove the guilt of the
accused and the precise degree of his culpability; and (3) it must ask the accused if he desires to present
evidence in his behalf and allow him to do so if he desires. 24 This is because a plea of guilt must be based
on a free and informed judgment. Thus, the inquiry must focus on the voluntariness of the plea and the full
comprehension of the consequences of the plea.25
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In this case, the trial court failed to comply fully with the requirement to conduct a searching inquiry to
determine whether accused-appellants plea was voluntary and done with full comprehension of the
consequences thereof. Before the hearing, the trial court asked accused-appellant:
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"COURT:

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Are you still willing to present evidence for your defense or you want the prosecution (to) present evidence
and you still insist on admitting what you did to Arlene Ipurong y Gonzales?
R. PRINCIPE:

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I will now admit the same, I will not present any other evidence, sir.
COURT:

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Do you know that because you admit the guilt, you may be sentenced to death like Echegaray?
R. PRINCIPE:

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Yes, sir." 26
Thus, in determining whether accused-appellant was aware of the full consequences of his plea of guilt, the
trial court simply asked him whether he knew that he "may" be sentenced to death, implying that it was
possible that the death penalty might not be imposed on him. But Art. 266-B of the Revised Penal Code
provides for the mandatory imposition of the death penalty if the crime of rape is committed against a child
below seven years old. In fact, even if the victim is not a child below seven years of age but homicide is
committed by reason of or on the occasion of the rape, the imposable penalty is death. Indeed, as noted in
People v. Nadera, 27 a mere warning that the accused faces the supreme penalty of death is insufficient.
More often than not, an accused pleads guilty because he hopes for a lenient treatment or a lighter penalty.
Thus, in the case at bar, when the trial court again asked accused-appellant his final plea, Accused-appellant
answered:
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"COURT:

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Mr. Principe, for the last time, the court would like to ask you your final plea before the case is submitted for
resolution.
ACCUSED PRINCIPE:

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A As narrated I have admitted my guilt, sir, in connection with this case. My only plea is, if possible, kindly
give me the minimum penalty that the Court can impose.
COURT:

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Q In other words you admit your guilt because you did it. Only, what you want is leniency from the Court?
A Yes, sir.
Q I want to tell you that what you stated in open court are recorded and it is finally for the Supreme Court
to give you leniency.
A Yes, sir." 28
Although accused-appellant said he was admitting guilt "because [he] did it," there is doubt whether that
was his only reason for pleading guilty because he also said he "wanted leniency from the court." This
makes it doubtful whether his plea was voluntary.
While accused-appellants improvident plea should be disregarded, nevertheless his conviction cannot be set
aside as there is, in addition to his plea, other sufficient and credible evidence on which the judgment of the
trial court rests. 29 This evidence consists of accused-appellants extrajudicial confession, his testimony in
open court, and the testimony of the other witnesses.
With respect to accused-appellants extrajudicial confession, the Constitution, 30 R.A. No. 7438, 31 and
caselaw 32 lay down four fundamental requirements for the admissibility of extrajudicial confessions in
general, to wit: (a) the confession must be voluntary; (b) it must be made with the assistance of competent
and independent counsel; (c) the confession must be express; and (d) it must be in writing. In this case,
after accused-appellant was read his rights in Tagalog, he signified his intention to confess his participation
in the rape and killing of Arlene. He did this in the presence of his father and with the assistance of Atty.
Cesar Villar, who had been chosen by his father for him. In his confession, he stated categorically that he
took Arlene to an abandoned house near Best-Line Eatery, where he struck her on the head with a rock,
raped her, and afterwards dumped her body into the toilet bowl in order to hide it. Accused-appellants
confession was placed in writing and it was signed by him, his counsel, and the administering officer.
Accused-appellant acknowledged his extrajudicial confession in court. The court asked him if he executed
the extrajudicial confession voluntarily and in the presence of counsel, and he answered in the affirmative.
Accused-appellant testified with some relatives present in the courtroom, including his grandmother. In
addition, he was assisted by his counsel de oficio, Atty. Victor Galang.
Finally, the testimonies of witnesses for the prosecution confirm accused-appellants testimony that he
committed the crime. One of his drinking companions, Frederick Agrigado, testified that accused-appellant
left them at about 4 p.m. to buy "pulutan" from the Best-Line Eatery. Another witness, Alfredo Apan, said he
saw accused-appellant with the victim Arlene on his back walking towards the highway at about the same
time. After the disappearance of the victim, Alfredo Apan confronted accused-appellant, telling him that he
was the last person seen with the child. Accused-appellants vehement denial aroused Apans suspicions as
he was the one who saw accused-appellant with Arlene. At the restaurant, Accused-appellant was served by
Lerma Morales, who noticed that he was with a 6-year old child, whom accused-appellant introduced as his
niece. After accused-appellant was given his order, he took the childs hand and led her to the abandoned
house. When he returned to his drinking companions, they noted it was already about 5:30 p.m. and that he
had been gone for one and a half hours. Arlenes body was found missing at past 5 p.m. of that same day.
All the above witnesses placed accused-appellant at the scene of the crime at the time it took place.
The conviction of an accused may be based on circumstantial evidence provided the following requisites
must concur: (1) there is more than one circumstance; (2) the facts from which the inferences are derived
are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond

reasonable doubt. 33 Thus, while there is no eyewitness account as to who raped and killed Arlene, the
above circumstances strongly point to no other person than accused-appellant as the perpetrator of the
crime. This conclusion becomes all the more certain and inevitable when the circumstantial evidence is
considered together with accused-appellants extrajudicial confession and his own testimony in open court.
The trial court correctly imposed the penalty of death. Art. 266-B of the Revised Penal Code provides for the
imposition of the death penalty when, by reason or on the occasion of the rape, homicide is committed. In
this case, Accused-appellant knocked Arlene unconscious to facilitate his dastardly design. The severity of
the blows caused her death. Thus, the imposable penalty is death. 34 The fact that Arlene was below seven
years old at the time of the rape cannot be taken into account against accused-appellant as, although her
age was alleged in the information, it was not proven during the trial.
The trial court erred, however, in fixing the civil indemnity at P50,000.00. In People v. Robles, Jr. 35 and in
subsequent cases, 36 this Court ruled that where homicide is committed by reason or on the occasion of the
rape, the civil indemnity shall be not less than P100,000.00.
The trial court likewise erred in granting the heirs of the deceased victim an additional amount of
P21,307.00 representing funeral expenses. Under Art. 2199 of the Civil Code, a party is entitled to
compensation only for such pecuniary loss suffered by him as proven. 37 The recovery thereof must be
premised upon competent proof and the best evidence obtainable, such as receipts, by the injured party
showing the actual expenses incurred in connection with the death, wake, or burial of the victim. The list of
expenses incurred for the wake, funeral, and burial of the victim amounting to P21,307.00 38 submitted by
Arlenes father is self-serving and not proved. 39 Thus, the trial courts award of P21,307.00 for funeral
expenses cannot be affirmed.
However, the reason Arlenes father was unable to present the receipt for the funeral parlor was because the
latters representative refused to issue a receipt until he had fully paid the entire amount, which he had not
done at the time of the trial. Under Art. 2224 of the Civil Code, temperate damages may be recovered if it is
shown that such party suffered some pecuniary loss but the amount cannot, from the nature of the case, be
proved with certainty. 40 As there is no doubt the heirs of the victim incurred funeral expenses, although the
amount thereof has not been proven, it is appropriate to award P15,000.00 by way of temperate damages
to the heirs of the victim.
In addition, the heirs are entitled to moral damages in the amount of P50,000.00 in accordance with Art.
2219 of the Civil Code for the physical suffering, mental anguish, serious anxiety, and moral shock caused
by the manner by which Arlene was raped and killed. 41
WHEREFORE, the judgment of the Regional Trial Court, Branch 27, Cabanatuan City is AFFIRMED with the
MODIFICATION that accused-appellant is ordered to pay the heirs of the victim, Arlene Ipurong,
P100,000.00 as civil indemnity, P15,000.00 as temperate damages, and P50,000.00 as moral damages.
Upon finality of this decision, let the Records of this case be forthwith forwarded to the Office of the
President for the possible exercise of her pardoning power.
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[G.R. Nos. 133570-71. January 15, 2002.]

PEOPLE OF THE PHILIPPINES, Appellee, v. NERIO SUELA y HEMBRA, EDGAR SUELA y HEMBRA
and EDGARDO BATOCAN, Appellants.

DECISION
PANGANIBAN, J.:
In this Decision, the Court visits and applies existing jurisprudence on the right to competent and
independent counsel of persons under custodial investigation. It also reiterates the long-standing judicial
policy that procedural laws which are favorable to the accused shall be given retroactive effect. Inasmuch as
the aggravating circumstance of disguise was not alleged in the Information, it cannot now be appreciated to
increase the penalty to death, notwithstanding the fact that the new rule requiring such allegation was
promulgated only after the crime was committed and after the trial court has already rendered its Decision.

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virtua1 1aw 1ibrary

The Case
For automatic review by this Court is the Decision 1 dated January 26, 1998 of the Regional Trial Court of
Quezon City, (Branch 95), finding appellants guilty beyond reasonable doubt of robbery with homicide and
simple robbery. The decretal portion of the Decision reads as follows:
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"WHEREFORE, judgment is hereby rendered in the following:

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"1. In Crim. Cases Nos. Q-96-64616 and Q-96-65071, the Court finds the accused Nerio Suela y Hembra
and Edgar Suela y Hembra and Edgardo Batocan GUILTY beyond reasonable doubt of the crime of Robbery
with Homicide defined in and penalized by paragraph I, Article 294 of the Revised Penal Code, as amended
by R.A. 7659, and, there being one aggravating circumstance of disguise (par. 14. Art. 14, Revised Penal
Code) and no mitigating circumstance to offset the same, each of them is hereby sentenced to suffer the
penalty of DEATH and are ordered to indemnify the heirs of the late Geronimo Gabilo y Hostallero the
amount of P50,000.00, as death indemnity; P20,000.00 as exemplary damages; P125,250.00, as actual and
compensatory damages; and P2,8[8]0,000.00, as loss of earnings based on the formula (2/3 x (80-44) or
24 years life expectancy by P120,000.00 reasonable average net annual earnings.
"The three accused are further ordered to return to Director Nilo Rosas the three (3) cameras worth
P25,000.00; assorted jewelry worth P120,000.00 and cash money in the amount of P500,000.00. If the
three (3) cameras and the assorted jewelry can no longer be returned, the three (3) accused are hereby
ordered to instead pay the value thereof in the total amount of P145,000.00;
"2. In Crim. Case No. Q-96-64618, the Court finds the accused Edgar Suela y Hembra GUILTY beyond
reasonable doubt of the crime of Simple Robbery defined in and penalized by paragraph 5, Article 294, of
the Revised Penal Code and is hereby sentenced to suffer the indeterminate penalty of from six (6) months
and one (1) day of prision correccional minimum, as the minimum penalty to four (4) years, two (2) months
and one (1) day of prision correccional maximum, as the maximum penalty; and
"3. In Crim. Cases Nos. Q-96-64617 and Q-96-65072, the Court finds the accused Nerio Suela y Hembra,
Edgar Suela y Hembra and Edgardo Batocan NOT GUILTY of the Crime of Carnapping as defined in and
penalized by Rep. Act. 6539, as amended by Rep. Act 7659, and hereby ACQUITS them for failure of the
prosecution to prove the guilt of the accused beyond reasonable doubt.
"The Sony TV set (Exh.E) and the Citizen gold wrist watch (Exh. T-1) are hereby ordered returned to
Director Nilo Rosas upon the final disposition of the cases.
"The motorcycle (Exh.FF) under the name of the accused Edgardo Batocan shall be kept by the Court until
the final disposition of the cases.
"All the three (3) accused are ordered to pay the costs.
"IT IS SO ORDERED." 2
The Information 3 against Nerio Suela and Edgar Suela in Criminal Case No. Q-96-64616 reads as
follows:
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"That on or about the 26th day of July, 1995, in Quezon City, Philippines, the above-named accused,
conspiring, and confederating with another person whose true name, identity and whereabouts have not as
yet been ascertained and mutually helping one another, by means of force upon things, did then and there
wilfully, unlawfully and feloniously rob one GERONIMO GABILO Y HOSTALLERO in the following manner to
wit: on the date and place aforementioned said accused managed to enter the house of complaint located at
No. 95 B-5 A. Melchor St., Xavierville Subd., Loyola Heights, this City, by barging into the door of said house
and once inside took, robbed and carried away the following, to wit:
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one (1) 14" Sony Trinitron

colored TV P12,000.00
three (3) cameras 25,000.00
assorted jewelries 120,000.00
cash money 500,000.00
all in the total amount of P657,000.00, Philippine Currency, and on the occasion of said Robbery, the said
accused pursuant to their conspiracy, with intent to kill, attacked, assaulted and employed personal violence
upon the person of said GERONIMO GABILO Y HOSTALLERO, by stabbing him, thereby inflicting upon him
serious and mortal wounds which were the direct and immediate cause of his untimely death, to the damage
and prejudice of the heirs of said Geronimo Gabilo y Hostallero, in the total amount aforementioned."
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The Information 4 against Edgardo Batocan in Criminal Case No. Q-96-65071 reads as follows:

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That on or about the 26th day of July, 1995, in Quezon City; Philippines, the above-named accused,
conspiring and confederating with NERIO SUALA Y HEMBRA and EDGAR SUELA Y HEMBRA who are being
charged with the same offense at Regional Trial Court Branch 79 and docketed as Criminal Case No. Q64616, and mutually helping one another, by means of force upon things, did then and there wilfully,
unlawfully and feloniously rob one NILO ROSAS Y LANETE in the following manner, to wit on the date and
place afor[e]mentioned said accused entered the house of complainant located at 95 Melchor St. Xavierville
Subd., Loyola Heights, this City, by barging into the door of said house and inside took, robbed and carried
away the following, to wit:
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one (1) 14" Sony Trinitron

colored TV P12,000.00
three (3) cameras 25,000.00
assorted jewelries 120,000.00
cash money 500,000.00
all in the total amount of P657,000.00, Philippine Currency, to the damage and prejudice of Nilo Rosas y
Lanete in the aforementioned amount of P657,00.00, and on the occasion of said Robbery the said accused
pursuant to their conspiracy, with intent to kill, attacked, assaulted and employed personal violence upon
the person of said GERONIMO GABILO Y HOSTALLERO, by stabbing him, thereby inflicting upon him serious
and mortal wounds which were the direct and immediate cause of his untimely death, to the damage and
prejudice of the heirs of said Geronimo Gabilo y Hostallero."
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The Information 5 against Edgar Suela in Criminal Case No. Q-96-64618 reads as follows:

jgc:chanrobles.com .ph

"That on or about the 18th day of January 1996, in Quezon City, Philippines, the said accused, with intent to
gain, and by means of intimidation against person, did then and there wilfully, unlawfully and feloniously
rob/extort one NILO ROSAS Y LANETE in the manner as follows: on the date and place aforementioned, the
said accused called up by phone the Executive Secretary of said complainant and demanded the amount of
P200,000.00, Philippine Currency, in exchange for the information regarding the robbery case and slaying of
Geronimo Gabilo on July 26, 1995, as in fact said accused, took, robbed and carried away the aforesaid
amount of P200.000.00, Philippine Currency, to the damage and prejudice of the said offended party."
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When arraigned on September 24, 1996, appellants, with the assistance of counsel, pleaded "not guilty." 6
In due course, they were tried and found guilty by the court a quo.
The Facts
Version of the Prosecution
The Office of the Solicitor General summarized the evidence for the prosecution in this wise: 7
"On July 26, 1995, between 11:00 P.M. and 12:00 midnight, private complainant Director Nilo L. Rosas was
at the masters bedroom located at the second floor of his townhouse residence at #95 B-5 A. Melchor
Street, Xavierville Subdivision, Loyola Heights, Quezon City. He was watching television thereat, together
with his adopted son. Norman Rosas, and his former co-teacher and good friend, Geronimo Gerry Gabilo,
who at that time was engaged in the real estate business. Suddenly, three persons sporting ski masks,
bonnets and gloves, brandishing handguns and a knife, barged into the room. The tallest of the three, with a
height of about five feet and five inches, reached for the light switch and turned it off. The three intruders
then shouted dapa, dapa. So Director Rosas, Gerry Gabilo, and Norman Rosas dropped to the floor with
their faces facing the bed. Two of the malefactors turned off the television set, and tied their hands at their
backs, with the use of hankies and telephone cord. The room remained illuminated by the light coming from
a walk-in closet and from the lamp post outside fronting the room, and from the lights of the neighboring
townhouses.
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"The shortest of the three malefactors, about five feet tall, poked the barrel of his gun on the chin of
Director Rosas, then inside Rosas mouth. At the same time, using his free hand, the same malefactor poked
a knife on the right side of Rosas neck. The other man, who was the second to the tallest, with a height of
about five feet three inches, while holding a penlight in one hand, and a gun on the other, threateningly told
Rosas, Nakikita mo ba iyan? Nararamdaman mo ba iyan?, to which Director Rosas replied Opo, opo. The
two then ordered Rosas to ilabas ang iyong mga pera. All that time, while the two were with Director Rosas,
the other man, the tallest of them, stood in front of the mirror by the side of the door, facing and
brandishing a gun towards Norman Rosas. Director Rosas did not heed the order to bring out the money
even though Gabilo advised him, saying Nilo ilabas mo na. However, Gabilo stood up, and even with his
hands tied at the back, went towards the second compartment of the television rack and reached for an
envelope containing his money. He handed the envelope to the shortest of the three fellows, who, upon
seeing the money inside the envelope, closed it. Director Rosas knew that the envelope contained
P200,000.00 as Gabilo had informed him of the amount earlier that evening. Forced to reveal that his
money was in the walk-in closet, the second tallest of the three malefactors poked a gun on Director Rosas
neck, forced him to get up, kicked and pushed him towards the closet. When the fellow could not open the
closet, he asked Rosas for the key. When he was informed that the key was inside his wallet which was on
top of the drawer beside his bed, the fellow opened the wallet and took all the money he found in it: two (2)
$100.00 bills and ten (10) P1,000.00 bills. With the key, he thereafter opened the closet. He then asked
where the money was. When Director Rosas told him that it was inside his suitcase, the fellow tried opening
it but failed. So he ordered Director Rosas to open it but the latter also failed as he had difficulty doing so
since his hands were still tied at his back. The fellow, however, subsequently opened the suit case himself
and got all the money in it amounting to P300,000.00. He also took the valuables he found inside the suit
case, viz., a gold-plated Citizen wristwatch engraved at the back with N.L. Rosas and some rings and
bracelet valued at P20,000.00, more or less. The malefactors also took with them three (3) automatic
cameras valued at P25,000.00 each, and bottles of cologne costing about P10,000.00. While leaving Director
Rosas lying on the floor near the closet, the second tallest of the three, together with the shortest fellow,
went to Gabilo and dragged and pushed him. They demanded that Gabilo give them his car key, which he
did. They then dragged Gabilo out of the room and proceeded downstairs. The second tallest fellow went
back to Director Rosas and said Mabait ka, mabait ka but warned him not to follow them downstairs
because puputok ang granada sa daanan mo. He then placed a gag inside Director Rosas mouth, tying it
with a piece of cloth. Upon sensing that the three were already downstairs, Director Rosas tried to follow
them but his adopted son, Norman Rosas, pleaded Daddy, daddy, huwag kang sumunod, baka patayin ka
nila. After about two (2) minutes, a long moaning sound was heard coming from downstairs, which sound
resembled Gabilos voice. After a while, he heard the engine of Gabilos car, a Nissan Sentra car with plate
no. TEB-258, running and he later found out that they had also carted away his Sony Trinitron colored
television set. Sensing that the malefactors had left, he went downstairs and saw Gabilo slump[ed] on the
floor in his blood. When he saw that Gabilo was motionless, he went back to the second floor and told his
son to rouse their housemaid, Pinky Maalac, who was asleep on the third floor of their townhouse. They
then sought help from their neighbors. The first to assist them was a medical doctor who, upon examining

Gabilo, informed them that the latter was already dead. At the Quezon City Medical Center where Gabilo was
subsequently brought, he was pronounced dead-on-arrival.
"Early morning, the following day, July 27, 1995, upon receiving the report from the Quezon City Medical
Center regarding the stabbing incident which resulted to the death of Gerry Gabilo, Captain Alejandro
Casanova, SPO3 Jesus Patriarca, and SPO2 Reynato Resurreccion, all of the Quirino District Police Station,
Station 9, Anonas Road, Quezon City, proceeded to the crime scene. SPO3 Jesus Patriarca was assigned as
lead investigator of the case. The autopsy conducted on Gabilo showed that he died of hemorrhage due to
multiple (five) stab wounds. To shed light on the incident, several persons, including private complainant
Director Rosas, his adopted son, Norman Rosas, his brother, Romulo Rosas, their housemaid, Pinky Maalac,
William Hostillero, Ruben Pacuntad, Joven Maalac and Rodito Gabilo, were summoned and interviewed by
the police. The same, however, did not result to any breakthrough for the case. When they were subjected
to a lie detector test by the NBI, the results were negative.
"Gabilos Nissan Sentra vehicle was recovered by the operatives of the Western Police District as it was found
abandoned at P. Florentino Street, Sta. Cruz, Manila. At the back seat floor of the car, a black bonnet was
found.
"After almost five (5) months of no leads towards solving the case, on January 15, 1996, Araceli Tubaga,
Director Rosas executive secretary at his DECS office at Misamis Street, Bago Bantay, Quezon City, received
a call from a male person who requested to speak with Director Rosas. When Tubaga requested to get his
message as the director could not go to the phone, he told her to relay to Rosas that he has information as
to the identity and whereabouts of those responsible for the death of his friend, Gabilo. He told her that he
is willing to give the information in writing in exchange for P200,000.00. He then said that he will call again
for Rosas response to his offer. In reaction, Director Rosas accompanied by Tubaga, went to the Quirino
District Police Station to inform Capt. Casanova about the call. Capt. Casanova came up with the plan to
entrap the caller. At noon the following day (January 16, 1996), the unidentified caller called again. When
told that Director Rosas was accepting his offer, he instructed Tubaga to meet him the following day
(January 17, 1996) at noon at the Ninoy Aquino Park, Quezon Avenue, Quezon City. He told her to bring
with her the amount of P200,000.00 which should be placed in a plastic bag, and to bring flowers with her
so he could easily identify her. Director Rosas informed Capt. Casanova about the conversation.
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"On January 17, 1996, about 10:00 A.M. Tubaga went to the Maxs Restaurant at the Quezon City Circle and
met Capt. Casanova and the other policemen, in preparation for the entrapment. Carrying with her the
boodle money in a Unilane Food Mart plastic bag, she proceeded to the Ninoy Aquino Park and waited but
the caller did not appear. About 5:00 P.M. that afternoon, the caller called her at the office and informed her
that he will meet her the following day (January 18, 1996) at the same time and place. Thus, the following
day, she waited for him at the designated spot. Shortly after, a male person approached her and asked if she
was the one with whom he talked with over the phone. When she answered in the affirmative, he handed
her an envelope while she handed him the plastic bag containing the boodle money. While he was untying
the plastic bag to check its contents, the police officers who were posted in the vicinity pounced on him and
effected his arrest. He was brought to Police Station 9. This person was later identified as appellant Edgar
Suela.
While on board the vehicle on their way to the police station, in the presence of appellant Edgar Suela, Capt.
Casanova, and the other policemen, SPO3 Patriarca opened the envelope which Tubaga had earlier received
from appellant Edgar Suela. It contained a handwritten note which reads:
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1. Nerio Suela ang utak nang pag-paslang

2. TV color and ibedensia nasa bahay niya. Ang tunay na pangalan National ngayon ay pinalitan nang
Panasonic.
3. Ang knife na ginamit nasa bahay niya 8 (sic).
When he asked Edgar Suela who wrote it, he answered Ako po, sir. When he further asked as to who is
Nerio Suela, Edgar answered that he is his brother and is the driver of Director Rosas.
"With that information, appellant Nerio Suela was immediately arrested at Director Rosas office. When Nerio
confirmed the contents of his brother Edgars letter, Capt. Casanova directed SPO1 Carlos Nicolas and PO2
Orlin Comia to accompany Nerio to his residence at Kaibigan Street Kalayaan B. Barangay Batasan Hills,
Quezon City. Thereat they recovered the Sony Trinitron TV, and a knife with a wooden scabbard.

"While under detention, the Suelas expressed their desire to give an extra-judicial confession. Hence, on
January 19, 1996, between 4:00 to 5:00 oclock in the afternoon, SPO3 Patriarca, together with Capt.
Casanova and another police officer, brought the Suelas to the office of the Integrated Bar of the Philippines
(IBP), located at the second floor, Hall of Justice, Quezon City. When they arrived there, Atty. Confesor
Sansano and Atty. Florimond Rous were manning the IBP office. When the police informed them of their
purpose, Atty. Sansano separately interviewed each of the Suelas first, informed them of their constitutional
rights, insured that they understood the import of their confession, physically examined them for any sign of
maltreatment or force, and after satisfying himself that the suspects intention was voluntary on their part
and that it was his legal assistance that they were willing to secure, he allowed the police to take down their
individual extra-judicial confessions. Atty. Sansano was present all throughout the time that the Suelas were
individually propounded with questions. Thereafter, both were brought before the Assistant City Prosecutor
where they affirmed their confessions under oath in the presence of Atty. Sansano who assisted them. The
following morning, January 20, 1996, the Suelas were again brought before Assistant City Prosecutor Ibuyan
for inquest investigation where they again affirmed under oath the contents of their extra-judicial
confessions.
"In their extra-judicial confessions, the Suelas mentioned appellant Edgardo Batocan, their townmate, as a
participant in the crime. Thus, his name was included in the criminal informations, and a warrant of arrest
was issued against him.
"Sometime in the second week of March 1996, a team composed of SPO3 Patriarca, Capt. Nestor Abalos.
and SPO2 Jesus Casica, together with the father of the Suela brothers, went to Jaro, Leyte, to serve the
warrant of arrest on appellant Batocan. In coordination with Sr./Insp. Benjamin Labadia, the Chief of Police
in Jaro, Leyte, the arrest of appellant Batocan was effected. He was immediately brought to Manila and was
detained at the Quezon City Police Station 9. The operatives were able to recover the gold-plated Citizen
watch of Rosas from Batocans girlfriend at Barangay San Agustin, Jaro, Leyte. The brand-new Honda
motorcycle registered in appellant Batocans name was shipped from Leyte to Quezon City as Batocan had
admitted that he had bought it sometime in July 1995 with his share from the loot of the robbery. While in
police custody, appellant Batocan also indicated his desire to give an extra-judicial confession. Thus, on
March 31, 1996. about 3:30 P.M., he was brought by SPO2 Reynato Resurreccion to the same IBP office and
gave his confession in the presence and with the assistant of Atty. Flormind [sic] Rous, which statement he
subscribed before an Assistant City Prosecutor and later re-affirmed before an inquest Fiscal." (Citations
omitted)
Version of the Defense
On the other hand, the Public Attorneys Office (PAO) summarized appellants version of the incident as
follows: 8
"On July 26, 1995, Edgardo Batocan was in his hometown in Jaro, Leyte where he worked as a farmer.
Sometime in March 1996, and while on board his motorcycle, he was arrested by the police. He bought the
motorcycle from an uncle with the money that his sister gave him. No citizen gold wristwatch was seized
from him upon his arrest.
"After his arrest he was brought to Quezon City and investigated. He had no knowledge nor any participation
in the crime that occurred on July 26, 1995, at the residence of Director Nilo Rosas. He was forced and
threatened by the police officers to admit and confess to the crimes. He was also forced to sign a
typewritten extrajudicial confession, the contents of which he did not know as he was not allowed to read it
nor was it read to him. No lawyer was present at that time and he only met Atty. Rous for the first time in
court. He recalled however, that during his brief visit at the IBP-Quezon City Chapter office, in the afternoon
of March 13, 1996, he saw, but did not talk to Atty. Rous, the one who limps, whom he recognized when the
latter testified in Court. He was brought before the Assistant City Prosecutor for inquest but the fiscal did not
explain to him the contents of his written statement. He was not adept at reading because he only reached
first year high school. No copy of his supposed statement was given him. He did not complain to the fiscal
nor to any government agency about the alleged coercion and threats of the police. He only told his lawyer,
Atty. Tabang and his brother Jimmy Batocan about it. He is not angry at the Suelas for falsely implicating
him. In jail, he confronted the brothers and was told that they were merely forced by the police officers so
that they could be freed. The Suelas had many friends but they pointed to him because they thought that
the police will no longer bother to pursue him because he lived in a very far place in Leyte. He knew the
Suela brothers because they were his barriomates in San Agustin, Jaro, Leyte. Although he came to Manila
in 1992 to work until 1994, he did not visit the Suelas or any of his friends from his barrio. He could not

recall his exact Manila address.

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"Nerio Suela worked as a driver of Director Nilo Rosas at DECS 1993 up to 1995. Geronimo Gabilo was
formerly his co-employee thereat as the latter was the one responsible for his employment with Director
Rosas. In the months of June and July 1995, he was mostly at home because he was recuperating from an
operation (for appendectomy). He was on leave and reported back to work only on July 30, 1995. It was
then that he learned about the untimely demise of Gerry Gabilo. The police and the NBI did not investigate
him, not until after his arrest on January 18, 1996 by the Quezon City police.
He had no knowledge nor participation in the killing of Gerry Gabilo nor in the robbery that occurred at the
residence of Director Nilo Rosas on the night of July 26, 1995. After his arrest, he was brought to Danarra
Hotel where he was manhandled and boxed and his head submerged in the toilet bowl. He was forced to
sign a piece of paper. He also met his brother Edgar at the same hotel. He was not allowed to read the paper
which he was forced to sign. He found out later on that this was the statement or his supposed extra-judicial
confession. From the hotel, he was brought to his house where the police took away his television set (TV)
and a knife with scabbard. Director Rosas gave him the tv set after Gabilos death. At that time, he did not
notice why the Sony brand name was scrapped and replaced by the name National. The next day, he was
brought to the City Hall where he was given a lawyer whom he does not know and whose name he could not
even recall. The lawyer showed him a paper and asked him if the signature thereon was his. The lawyer did
not ask him anything more. The former did not explain to him that said paper was his alleged admission to
the crimes for which he was arrested and detained. He met Atty. Sansano for the first time in the court room
during the hearing of these cases and not on January 19, 1996. He could not recall if Atty. Sansano was the
same one who was presented to him when he was brought to the City Hall after his arrest. After this, he was
brought before the Assistant City Prosecutor.
"He sustained hematomas (pasa) from the man-handling by his police captors but he did not show them to
the Assistant City Prosecutor or the lawyer at the IBP. Quezon City office nor did he file any complaint
against the police. He recanted his confession in his counter-affidavit
"He knew Edgardo Batocan well because they grew up together in the same town in Leyte. On July 26,
1995, he was at home at Batasan Hills, Quezon City, the whole time. He was playing chess with his neighbor
Mang Tancio during the time of the incident.
"While inside the prison cell, he was convinced by his officemates at the DECS-NCR and by Capt. Casanova
to write Director Rosas a letter on January 31, 1996. The contents of this letter was merely dictated to him
by the police.
"Edgar Suela admits to having called up the office of Director Nilo Rosas and in proposing a trade off of
P200,000.00 in exchange for the information he would give about the identities and whereabouts of the
robbers. He learned from his brother Nerio that Director Rosas placed a reward money for whoever can
provide such an information. At the agreed time and date of the trade off, the police apprehended him and
changed the original note he gave with another written note the contents of which, the police forced and
dictated to him. During his investigation, the police employed threats, intimidation and physical force to
make him admit to the crime, and to sign a statement or confession. Together with his brother, he was
brought to the office of the IBP in Quezon City, a lawyer talked to him and he identified this person in court
as Atty. Sansano. At the IBP office, he was asked to sign his supposed extrajudicial confession. Later on, he
executed a Counter-Affidavit wherein he assailed the voluntariness of his forced confession and recanted the
contents thereof.
"He has no knowledge about the killing of Gerry Gabilo nor about the robbers who invaded Director Rosas
house.
"On July 26, 1995, he was on his tour of duty as security guard of Hoctagon Security Agency at his assigned
post at Northridge Elementary School, along Mother Ignacia Street, Timog Avenue, Quezon City. Edgardo
Batocan was his acquaintance since childhood and the last time he saw the latter was in 1990 at Jaro, Leyte.
He did not see Batocan in his hometown when he got married in November 1995. He did not implicate
Batocan. He learned about the death of Gerry Gabilo when he came back to Manila after his wedding.
"Joselito Jacinto testified that Nerio Suela wanted him to repair the latters television set. The defect of said
tv, pertain only to the channeling. He asked Suela for money to buy the spare parts. On August 19, 1995, he
met Nerio Suela and his boss, Director Rosas at the SM parking lot. Rosas gave Nerio some money which the
latter in turn gave him for the TV spare parts and repair.

"Dionesio Ador had seen Edgardo Batocan in Jaro, Leyte on July 26, 1995. The motorbike of Batocan is an
old red Honda. He saw Batocan used a new motorbike in December 1995 in their barrio. He does not know
the Suela brothers. Batocan had been in their barrio all his life and had not left their place." (Citations
omitted)
Ruling of the Trial Court
The court a quo ruled that appellants had been assisted by competent and independent counsel during the
execution of their extrajudicial confessions. It gave credence to the testimonies of Atty. Sansano and the
police officers and thus admitted in evidence the said confessions.
The letter of Nerio Suela addressed to Director Rosas asking for forgiveness as well as the discovery of the
stolen TV set and knife in the formers house, further convinced the trial court of appellants guilt. Finding the
presence of one aggravating circumstance (disguise) with no mitigating circumstance to offset it, the trial
court sentenced them to death.
Hence, this automatic review before us. 9
Assignment of Errors
In his Brief, Appellant Edgardo Batocan describes to the trial court the following alleged errors: 10
"I. The trial court gravely erred in considering Edgardo Batocans extra judicial confession as admissible
evidence against him.
"II. The trial court erred in admitting and appreciating the wristwatch as evidence against Edgardo Batocan.
"III. The trial court erred in convicting Appellant Batocan of robbery with homicide."

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Appellants Nerio and Edgar Suela, on the other hand, fault the trial court with the following supposed errors:
11
"I. The court a quo erred in considering the extr[a]-judicial confessions of Edgar Suela and Nerio Suel[a] are
admissible against them:
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"II. The court a quo erred in considering the letter of Nerio Suela to Director Nilo Rosas as evidence against
him;
"III. The court a quo erred in convicting Edgar Suela for simple robbery under Art. 294, no. 5, of the Revised
Penal Code.
"IV. The court a quo erred in convicting Edgar Suela and Nerio Suela [of] robbery with homicide."

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Basically, the assigned errors boil down to four: (1) whether the extrajudicial confessions of appellants are
admissible in evidence; (2) whether the wristwatch and the letter (of Nerio Suela) are admissible in
evidence; in evidence; (3) whether appellants can be convicted of robbery with homicide; and (4) whether
Edgar Suela is guilty of robbery demanding P200,000 as payment for information on the robbery-slay case.
The Courts Ruling
The appeal is partly meritorious.
First Issue:

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Admissibility of Extrajudicial Confessions

Section 12 of Article III of the 1987 Constitution provides:

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"(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, incomunicado, or other similar forms of detention are
prohibited.
"(3) Any confession or admission obtained in violation of this or the preceding section shall be inadmissible
in evidence against him.
"x

x."

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In People v. Labtan, 12 we explained that" [t]he right to counsel is a fundamental right and contemplates
not a mere presence of the lawyer beside the accused." Furthermore, an effect and vigilant counsel
necessarily and logically [requires] that the lawyer be present and able to advise and assist his client from
the time the confessant answers the first question asked by the investigating officer until the signing of the
extrajudicial confession. Moreover, the lawyer should ascertain that the confession is made voluntarily and
that the person under investigation fully understands the nature and the consequence of his extrajudicial
confession in relation to his constitutional rights. A contrary rule would undoubtedly be antagonistic to the
constitutional rights to remain silent, to counsel and to be presumed innocent." 13
True, counsel does not necessarily have to dissuade the version under investigation from confessing. But his
bounden duty is to properly and fully advise his client on the nature and consequences of an extrajudicial
confession.
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In People v. Deniega, 14 the Court explained:

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"The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer
merely gives perfunctory advice as opposed to a meaningful advocacy of the rights of the person undergoing
questioning. If the advice given is so cursory as to be useless, voluntariness is impaired. If the lawyers role
is reduced to being that of a mere witness to the signing of a pre-prepared document albeit indicating
therein compliance with the accuseds constitutional rights, the constitutional standard guaranteed by Article
III, Section 12(1) is not met. The process above-described fulfills the prophylactic purpose of the
constitutional provision by avoiding the pernicious practice of extorting false or coerced admissions or
confessions from the lips of the person undergoing interrogation for the commission of the offense and
ensuring that the accuseds waiver of his right to self incrimination during the investigation is an informed
one in all aspects."
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The modifier competent and independent in the 1987 Constitution is not an empty rhetoric. It stresses the
need to accord the accused, under the uniquely stressful conditions of a custodial investigation, an informed
judgment on the choices explained to him by a diligent and capable lawyer. 15
With respect to Edgardo Batocan, we hold that his extrajudicial confession was obtained in violation of his
constitutional rights. This appellant did not finish first year high school. 16 Yet Atty. Rous, who is touted by
the prosecution as a competent and independent counsel, interviewed Batocan before the latter gave his
confession for only around "five minutes." 17 After this initial interview, Atty. Rous just listened
nonchalantly to the questions propounded by the police and to the answers given by Batocan. Counsel was
not even sure that he had explained to appellant the consequences of his extrajudicial confession.
Furthermore, Atty. Rous attention was divided while attending the custodial investigation as he was also
looking over another paper work on his desk. 18
In view of these proven circumstances, we are not convinced that counsel had fully explained to Batocan his
constitutional rights and what they entailed or the nature and the consequences of an extrajudicial
confession explanations that would have enabled him to make an informed judgment on whether to
confess; and if so, on what matters. There is no showing that Atty. Rous properly explained the choices or
options open to appellant, a duty expected of any counsel under the circumstances. In sum, he did not turn
out to be the competent and independent counsel envisioned by the Constitution.
We now to go the extrajudicial confessions of Edgar and Nerio Suela. Atty. Sansano supposedly stood as
counsel for the Suela brother during their custodial investigation. He testified on how he discharged his
duties as follows:
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"Q: Did you also inform them of the nature of the charge against them and the circumstances s[u]rrounding
the taking of their statement?
A: I did not have the opportunity to inform them about the nature of their charge because at that time,
when they introduced to me, I have not yet informed them what they are going to do and what being took
their statement.
Q: In other words, Mr. Witness, you did not inform the[m] that the [imposable] penalty in this crime is
death?
A: Well, during my personal interview as I said, at that time, I dont even know that they are charged for
Murder and Homicide.
Q: But anyway, Mr. Witness, when this case was brought to you by the police officer, you really informed
that the crime charged was robbery-homicide, Carnapping and extortion?
A: Nobody informed me about the nature of the charge as they stated. They were just brought before me
there. I was asked to provide the free legal assistance other than the investigation conducted by the police
officer.
Q: Did you not ask the police why these people were brought to you?
A: They told me that they are going to be asked questions, to be investigated in connection with that
incident in Dr. Rosas home.
Q: And did you not ask the police what was that Incident?
A: The police told me already that the two boys were going to give statement in connection with that
incident in Dr. Rosas house where one was killed in the house of Dr. Rosas. 19
x

Q: But, nevertheless, Mr. Witness, it was the policeman who choose you to be the lawyer to assist?
A: No, sir, the police only thru their duties, to suggest or provide where counsel can be sought, now, it
happened that under our agreement, with the police, if the two boys were going to give their statement and
if the declarant got no lawyer that they will bring them to the IBP because we even provide the assistance
that are needed in order to be able to conduct an investigation. 20 (Emphasis supplied)
x

Q: Anyway, you already knew that the incident of robbery and killing of a person was involved, is that right?
A: Yes sir, after the investigation.
Q: So when you already knew the possible charge based on the testimony of the two declarants?
A: Yes sir, it was robbery with homicide.
Q: You said a while ago that your duty as assisting counsel was only to advise the suspects one of which is
to advise them that they can if they do not want to answer those questions that they would think damaging
then they can do that?
A: Yes sir, and the best evidence is the evidence that they gave in their statements.
Q: Now, since you advised them about damaging testimonies, did you not advise them that to make a
confession would be damaging to themselves as assisting counsel?
A: The confession became clearly damaging only after the answers were given following the question but as
I said, at that stage I did not stop the declarant from giving his answer because if I objected then that would

be an obstruction in the investigation itself." 21

Evidently, Atty. Sansano did not understand the exact nature of appellants rights to counsel and to remain
silent during their custodial investigations. He viewed a refusal to answer as an obstruction in the
investigation. This shows that he was in capable or unwilling to advise appellants that remaining silent was a
right they could freely exercise without fear of any untoward consequence. As counsel, he could have
stopped his clients from answering the propounded questions and advised them of their right to remain
silent, if they preferred to do so. That the process of investigation could have been "obstructed" should not
have concerned him because his duty was to his clients and not to the prosecution or to the police
investigators.
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Moreover, when he interviewed appellants, he did not even bother to find out the gist of their proposed
statements in order to be able to inform them properly of the nature and consequences of their extrajudicial
confessions. Clearly and sadly, appellants were not accorded competent and independent counsel whom
they could rely on to look after their interests.
"In People v. dela Cruz, we stated that a confession made in an atmosphere characterized by deficiencies in
informing the accused of all rights to which he is entitled would be rendered valueless and inadmissible,
perforated, as it is, by non-compliance with the procedural and substantive safeguards to which an accused
is entitled under the Bill of Rights and as now further implemented and ramified by statutory law." 22
Where the prosecution failed to discharge the States burden of proving with clear and convincing evidence
that the accused had enjoyed effective and vigilant counsel before he extrajudicially admitted his guilt, the
extrajudicial confession cannot be given any probative value. 23
The extrajudicial confessions of all three appellants are thus inadmissible in evidence.
Second Issue:

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Admissibility of Wristwatch and Letter

Wristwatch
Edgardo Batocan allegedly confessed in Leyte that the stolen Citizen wristwatch had been given to his
girlfriend. When he rendered this confession, he did not execute any written waiver of his right to remain
silent or of his right to counsel. "Any admission wrung from the accused in violation of his constitutional
rights is inadmissible in evidence against him." 24 Therefore, his alleged statement as to the location of the
wristwatch is inadmissible.
Furthermore, the prosecutions claim that the wristwatch was recovered from his girlfriend is hearsay and
hence, has limited probative value. 25 The prosecution did not present anyone who had actually witnessed
the alleged recovery of the wristwatch from the girl. S/Insp. Benjamin Labadia recounted the incident in this
plainly insufficient manner:
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"Q: Alright Mr. Witness, you said that a wrist watch was also a part of the loot and that Batocan told your
team that it was in the custody of his sweetheart. When so informed that this wrist watch was in the custody
of his sweetheart, what did the police operatives do?
A: The police operatives together with Edgardo Batocan went to the place and when they came back, I did
not go with them, the wrist watch was already in the possession of the Quezon City Police operative, Sir.
Q: Did you actually see, Mr. Witness when the team proceeded to the place where the sweetheart of accused
Edgardo Batocan was staying, give this wrist watch to the Quezon City Police operatives?
A: I said, Sir. I did not accompany them." 26
As for the wristwatch itself, we agree with appellant that its seizure, if it was really taken from Batocans
girlfriend, was irregular. As succinctly explained in Batocans Brief:
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. . . Clearly, the watch was taken without a search warrant and not as an incident of a valid arrest. The
seizure was irregular. There is also no evidence on record that it was taken under any of the exempting
circumstances where a warrantless seizure is permissible. It was not shown if the girlfriend voluntarily and

validly consented to the taking . . . Lacking such evidence, no presumption of regularity can be assumed.
Where the search was conducted with irregularity, i.e. without a warrant, the Court cannot appreciate
consent based merely on the presumption of regularity of the performance of duty. (People v. Encinada, 280
SCRA 72).
"The wristwatch is clearly a fruit of a fruit of a poisonous tree. As such, it should not have been admitted
and appreciated against the accused. "27
Letter
Nerio Suela also contends that his January 31, 1996 letter to Director Rosas is inadmissible in evidence. The
letter reads as follows:
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"Jan-31-96
"Dearest Sir DIR. NILO ROSAS
"Sir matagal kona sana ito ipagtapat sa iyo dahil tuwing kitay nakikita na lumoloha ka parang hindi ako
maka hinga ng sisikip and aking dibdib. Tuwing tayoy nasa simbahan homihinge ako ng tawad sa panginoon
ang nagawa kong ito nararamdaman ko na parabang hinde niya tinatanggap.
"Sir napakalaki ng nagawa kong kasalanan sa iyo at sana bigyan mo pa ako ng isang pagkakataon
pagsisihan ko lahat ang pagkakasala sa iyo babagohin ko na ang buhay ko maglilingkod ako sa diyos.
"Sir nandito ako sa likod ng bakal na rihas halos lahat ng oras ng dadasal ako bigyan mo pa ako ng isang
pagkakataon patawaring mo ako.
"Sir alam ng diyos na hindi ako ang kriminal may kinalaman lang ako inamin ko na lang. Para naman
magkaroon ng lonas yong problima mo hindi narin ako makatiis hindi pa makatolog. Lalo na nakikita kita na
ng hihirap ang inyong katawan lalo na ang in kalooban sana sir bigyan mo pa ako ng isang pagkakataon
patawarin mo ako isa rin ako na anak ng diyos na naligaw ng langdas ngayon pinagsisihan ko lahat ang
nagawa kong kasalanan sir ayaw ko pang mamatay maliliit ang aking mga anak mahal ako ng aking asawa.
"Sir. Edgardo Batokan ang pumatay kay Sir JERRY sangayon nandoon siya sa Jaro Leyte Bo. San Agostin. Sir
hinde ko maggawang pomatay ng tao somama lang ako dahil baka kayo ang patayin nang doon lang ako sa
may pito. Yung kapatid ko namana siya ang may baril siya and nanotok si Edgardo Batokan siya ang
komoha ng pira tapos omalis na kami ako ang ng drive ng kotse. Tapos inewan namin sa Ricto tapos ng
hiwalay hiwa na kame yon tike. Dian ng kapatid ko.
"Sir patawarin mo na ako hinde naman akong masamang tao na pasama lang ako.
"Sana po & sir babaan mo naman ang aking sintinesia ayaw ko pang mamatay.
Nerio Suela
(signed)
Quezon City Jail
Sir. Sagotin mo naman
itong sulat ko,
(signed)" 28
This letter was properly identified. Nerio was no longer under custodial investigation when he wrote it. In
open court, he admitted having written it. Thus, contrary to his contention, the fact that he was not assisted
by counsel when he wrote it will not make the letter inadmissible in evidence. Constitutional procedures on
custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the
authorities. 29 Hence, the letter is admissible in evidence.
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Third Issue:

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Liability for Robbery with Homicide

Without the wristwatch and the uncounseled extrajudicial confession, are the remaining pieces of evidence
still sufficient to prove appellants guilt beyond reasonable doubt? Fortunately for the prosecution, our
answer is "Yes."
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Excluding the wristwatch and the written extrajudicial confessions, the material evidence on record are as
follows:
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1) The testimony of the medico legal officer in conjunction with the medico legal report 30 which proved the
existence of five stab wounds on the cadaver of Geronimo Gabilo;
2) The stolen colored Sony television set and the knife used in stabbing Geronimo Gabilo, which were
recovered from the house of Nerio Suela;
3) The handwritten letter of Nerio Suela asking for forgiveness and admitting his participation in the crime;
4) The handwritten tip on the identity of the malefactors voluntarily handed by Edgar Suela to Araceli
Tubaga, which in open court he admitted having written. It states:
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1. Nerio Suela ang utak ng pagpaslang

2. TV color and evidencia nasa bahay niya ang tunay na pangalan national ngayon ay pinalitan ng Panasonic
3. Ang knife na ginamit nasa bahay niya 8 inc.
5) The testimony of Director Rosas who narrated how three hooded men brandishing guns and a knife
barged into his room on the night of January 18, 1996, and hogtied him, Gabilo and Norman. 31 They were
then threatened and intimidated into giving the location of their money and valuables, which the criminals
eventually took. 32 The malefactors then dragged Gabilo downstairs. 33 Shortly, thereafter, he followed
them and found Gabilo in a pool of his own blood. 34 He observed that the height and built of the three
malefactors were the same as those of the appellants; 35
6) The oral admissions made by Nerio Suela and Edgardo Batocan to Director Rosas and his officemates.
Rosas testified as follows:
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"Q: After Nerio Suela was told that somebody will be talking with him thru the phone, what happened next,
if any?
A: Nerio Suela pale faced, admitted the commission of the crime and he was very apologetic to me and he
said: "Sir, patawarin mo po ako sa aking nagawa. nagkamali lang po ako, tulungan naman po ninyo ako",
those were the statements of Mr. Nerio Suela as he was being interrogated by Mr. Patriarca.
Q: What else did he tell you?
A: Those were the only statements that I actually heard from Nerio Suela. 36
x

Q: Again, do you know a person by the name of Edgardo Batocan?

A: I learned about him only from the letter of Nerio Suela and also when I met him on March 13, 1996, sir.
Q: Where did you meet this Edgardo Batocan for the first time, Mr. Witness?
A: I met him in the second floor of station 9 along Anonas Street.
Q: Under what circumstances were you able to meet him?

A: Upon his arrest on March 13, 1996 at around 3:00 in the afternoon, I was called by the Station
Commander of Station 9 to meet Mr. Edgardo Batocan and present also during that time were the relatives
of Gerry Gabilo, sir.
Q: What transpired when you met Edgardo Batocan in the office of the Station Commander of Station 9?
A: We talked about the crime and he mentioned to us that it was Nerio Suela who planned the whole thing
at their place and the plan was hatched three days before the commission of the crime on July 26, 1995.
Q: What else did he tell you, Mr. Witness, at that time?
x

A: He insisted that it was actually Mr. Nerio Suela who masterminded because on the way down from the
second floor, Mr. Gerry Gabilo was pleading with him for them not to harm him and felt quite remorseful
when he was already about to stab my friend but it was Nerio Suela who pushed him to kill Gerry and then
one of my staff even asked him "how many times did you stab, Mr. Gabilo?"
x

Q: What did Edgar Batocan answer to one of your staff?

A: He answered that he hit him five times, sir.
COURT:

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Q: You were present when your staff member asked Edgardo about the question?
A: Yes, I was there.
Q: You were also present when Edgardo Batocan gave the answer?
A: Yes. Your Honor.
x

Q: Was there any investigation being conducted by the police at that time you were talking with Edgardo
Batocan?
A: There was none. Your Honor.
Q: Or you were alone with Edgardo Batocan together with your staff member?
A: We were left alone at the second floor with some of my staff member together with the family of Gerry
Gabilo, so we were asking him the circumstances on how he did it and so forth and so on.
Q: Did he ask for forgiveness?
A: No, he did not Your Honor. 37
Edgardo Batocans confession to Rosas who is not a police officer is admissible in evidence 38 The Rules
state that "the declaration of an accused acknowledging his guilt of the offense charged, or of any offense
necessarily included therein, may be given in evidence against him." 39 Batocans verbal declarations are
not covered by Sections 12 (1) and (3) of Article III of the Constitution, 40 because they were not extracted
while he was under custodial investigation.
In People v. Tawat, 41 the Court declared:

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"The rule is that any person, otherwise competent as a witness, who heard the confession, is competent to

testify as to the substance of what he heard is he heard and understood all of it. An oral confession need not
be repeated verbatim, but in such case it must be given in its substance.
"Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who
testifies that he was present, heard, understood, and remembers the substance of the conversation or
statement made by the accused."
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These pieces of evidence sufficiently prove beyond reasonable doubt the commission of the crime of robbery
with homicide.
Identities of Appellants As Malefactors
Edgardo Batocans oral admission to Rosas that he stabbed Gabilo five times dovetails on material points
with the letter of Nerio. In turn, Nerios letter to Rosas asking for forgiveness and admitting his participation
in the crime, taken together with the recovery from his house of the stolen TV and knife used in killing
Gabilo; plus the oral admission of Batocan and the written tip of Edgar Suela pointing to him as the
mastermind prove beyond reasonable doubt his identity as one of the malefactors.
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The evidence showing the identity of Edgar Suela are circumstantial in character. It is basic that an accused
may be convicted on the basis of circumstantial evidence alone, provided that: (a) there is more than one
circumstance, (b) the facts from which the inferences are derived are proven, and (c) the combination of all
the circumstances is such as to produce a conviction beyond reasonable doubt. 42 In the present case, all
these requirements are satisfied.
These circumstances may be summarized, thus: (1) Edgars intimate personal knowledge of the details of
the crime which he wrote down as tips; (2) as a security guard, he possessed a gun on the night of the
incident; (3) he was the brother of one of the malefactors and a friend of the other; (4) the interlocking
admissions to Director Rosas of Batocan and his brother Nerio point to Edgar as their cohort; (5) Rosas also
identified him as one of the malefactors. These are duly proven circumstances which sufficiently establish
beyond reasonable doubt his identity as one of the malefactors.
Conspiracy
The three malefactors arrived together at the house of director Rosas. They were all wearing ski masks and
were all sporting weapons. While one was threatening Rosas, the other was intimidating Gabilo and the third
was pointing his weapon on Norman. After getting the money and valuables of Gabilo and Rosas, all three
went downstairs together, two of them dragging Gabilo with them. Upon the instruction of Nerio, Batocan
stabbed Gabilo five times. They finally left together in the same car, with Nerio driving. These acts of the
three appellants before, during and after the crime clearly indicate a joint purpose, concerted action and
concurrence of sentiments. Where the acts of the accused collectively and individually demonstrate the
existence of a common design towards the accomplishment of the same unlawful purpose, conspiracy is
evident, and all the perpetrators will be liable as principals. 43
Hence, although Nerio and Edgar Suela did not themselves stab Gerry Gabilo, they are still liable for his
death as principals because the existence of conspiracy makes the act of one the act of all. 44 Moreover,
whenever the complex crime of robbery with homicide is proven to have been committed, all those who took
part in the robbery are liable as principals even though they did not actually take part in the killing. 45
Proper Penalty
The current Rules on Criminal Procedure require that even generic aggravating circumstances must be
alleged in the Information. Thus Section 9 of the new Rule 110 states:
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"Sec. 9. Cause of the accusation. The acts or omissions complained of as constituting the offense and the
qualifying and aggravating circumstances must be stated in ordinary and concise language and 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 as well as its qualifying and aggravating circumstances
and for the court to pronounce judgment.
In People v. Mauricio, 46 the Court elucidated:

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"The use of the word must indicates that the requirement is mandatory, therefore failure to comply with

Sec. 9, Rule 110, means that generic aggravating circumstances, although proven at the trial, cannot be
appreciated against the accused if such circumstances are not stated in the information. It is a cardinal rule
that rules of criminal procedure are given retroactive application insofar as they benefit the accused."
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In the present case, the aggravating circumstance of disguise which was appreciated by the court a quo was
not alleged in the Information against appellants. Following the above-cited new rule and current
jurisprudence, we cannot appreciate the aggravating circumstance of disguise against appellants. The
special complex crime of robbery with homicide carries the penalty of reclusion perpetua to death. There
being no appreciable aggravating circumstance, the proper penalty to be imposed is reclusion perpetua.
Furthermore, in People v. Catubig, 47 we held that while a non-alleged but proven aggravating circumstance
cannot be used to increase the penalty, nonetheless it can be the source of civil awards. Hence we retain the
trial courts civil grants in this regard.
Fourth Issue:

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Robbery
On the trial courts sentence of robbery in Criminal Case No. Q-96-64618, we agree with the
recommendation of the Office of the Solicitor General that Edgar Suela should be acquitted. The OSG
explained:
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"Simple robbery is committed by means of violence against or intimidation of persons as distinguished from
the use of force upon things, but the extent of the violence or intimidation does not fall under pars. 1 to 4 of
Article 294 (Revised Penal Code) [p. 175, Criminal Law, Book 11, Vol. IV, Ambrosio Padilla, 1990].
"Unfortunately, in the case at bar, the prosecution failed to prove that appellant, Edgar Suela employed force
or intimidation on private complainant Rosas by instilling fear in his mind so as to compel the latter to cough
out the amount of P200,000.00. Instead, what was established was that he had agreed to give the
P200,000.00 in exchange for information regarding the identity and whereabouts of those who robbed him
and killed his friend (TSN, November 4, 1996, p. 7; TSN. November 5, 1996, pp. 4-9). There was no
showing that appellant Edgar Suela had exerted intimidation on him so as to leave him no choice but to give
the money. Instead, what is clear was that the giving of the money was done not out of fear but because it
was a choice private complainant opted because he wanted to get the information being offered to him for
the consideration of P200,000.00 (TSN, November 4. 1996. pp. 5-17; ibid., Decision, p. 15), In fact, the
money was delivered not due to fear but for the purpose of possibly having a lead in solving the case and to
possibly bring the culprit to justice (ibid.). As such, the elements of simple robbery have not been
established in the instant case, hence, appellant Edgar Suela should be acquitted of that charge." 48
WHEREFORE, the appeal is hereby PARTIALLY GRANTED and the appealed Decision MODIFIED. We AFFIRM
the judgment insofar as it refers to Criminal Case Nos. Q-96-64616 and Q-96-65071 but REDUCE the
penalty to reclusion perpetua. The award of civil indemnities is also AFFIRMED. In Criminal Case No. Q-9664618 for simple robbery, Edgar Suela y Hembra is ACQUITTED.
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No pronouncement as to costs.

[G.R. NO. 133188 : July 23, 2004]

PEOPLE OF THE PHILIPPINES, Appellee, v. ELIZAR TOMAQUIN, Appellant.

DECISION

AUSTRIA-MARTINEZ, J.:
Once again, the Court is confronted with the issue of the admissibility of an extrajudicial confession. This
appeal particularly involves the question of whether a barangay captain who is a lawyer can be considered
an independent counsel within the purview of Section 12, Article III of the 1987 Constitution.
On December 17, 1996, the Cebu City Prosecutor filed an Information charging appellant with Murder,
committed as follows:
That on or about the 15th day of December, 1996, about 2:30 a.m., in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, the said accused, armed with a bladed instrument (tres
cantos), with deliberate intent, with intent to kill, with treachery and evident premeditation, did then and
there suddenly and unexpectedly attack, assault and use personal violence upon one Jaquelyn Luchavez
Tatoy, by stabbing her with said bladed instrument, hitting her on the vital parts of her body, thereby
inflicting upon her physical injuries causing:
"CARDIO RESPIRATORY ARREST DUE TO SHOCK & HEMORRHAGE SEC. TO STAB WOUNDS TO THE TRUNK
(POSTERIOR ASPECT)"
as a consequence of which, Jaquelyn Luchavez Tatoy died almost instantaneously.
CONTRARY TO LAW.1
On arraignment, appellant pleaded "not guilty" to the charge, 2 and trial thereafter ensued.
There were no eyewitnesses to the incident, and the prosecution's evidence, aside from appellant's
extrajudicial confession, was mainly circumstantial.
As presented by the prosecution, the facts are as follows:
At around 11:00 in the evening of December 14, 1996, appellant Elizar Tomaquin @ Hapon, together with
Rico and Romy Magdasal, Noel Labay, and a certain Cardo, were drinking "Red Horse" beer in Itom Yuta,
Lorega, Cebu City. Appellant left the group at around 1:00 in the morning,
saying he has a headache. At the behest of Rico Magdasal, the group transferred to Lorega proper. A few
minutes later, they heard Rustica Isogan shouting for help as the latter heard Jaquelyn 3 Tatoy, her
goddaughter, asking for help. Isogan got two flashlights and they proceeded upstairs to Jaquelyn's house.
The first to go up was a certain Moises, followed by the brothers Rico and Romy Magdasal, while Noel and
Cardo remained downstairs. Rico noticed that the hinge and the "walling" of the main door were damaged,
as if it were kicked open, and only the light in the kitchen was turned on. Rico also saw a black shoe on the
stairs and another in the sala, which he claims belong to appellant. When they went into the kitchen, they
saw Jaquelyn bloodied and sprawled face-up on the floor, with her head inside a plastic container. Jaquelyn
was brought to the hospital, where she expired. A neighbor later found a tres cantos with blood on it by the
stairs, which Rico also identified to be appellant's.4 A certain Rey got the black pair of shoes and tres
cantos for safekeeping which were later turned over to Policeman Tariao of the Homicide Section, Ramos
Police Station. The person who turned over the objects to Policeman Tariao was not identified. 5
At around 12:00 in the afternoon of December 15, 1996, barangay tanods Julius Yosores and Armando
Zabate of Lorega, Cebu City, searched for appellant because of the information given by Rico Magdasal that

the shoes and tres cantos found in the scene of the crime belonged to appellant. Together with Rico, they
went to the house of Wilson Magdasal where appellant was temporarily staying, and found him sleeping.
Appellant was wearing a bloodstained maong shorts. The tanods told appellant that he is a suspect in the
killing of Jaquelyn, and brought him to the house of barangaycaptain Atty. Fortunato Parawan. There,
appellant was asked about the shirt he was wearing and he told them that it was in Wilson Magdasal's
house. It was Edgar Magdasal who found his shirt, wet and bloodstained, among the soiled clothes. Atty.
Parawan then told his tanods to take appellant to the police station. 6
In the morning of the next day, December 16, 1996, appellant was investigated by SPO2 Mario Monilar of
the Homicide Section, Ramos Police Station in Cebu City. After being apprised of his constitutional rights,
appellant told SPO2 Monilar that he was willing to confess and asked for Atty. Parawan,
the barangay captain, to assist him. SPO2 Monilar called Atty. Parawan but the latter told him that he will be
available in the afternoon. When Atty. Parawan arrived at 2:00 in the afternoon, he conferred with appellant
for around fifteen minutes. Atty. Parawan then called SPO2 Monilar and told him that appellant was ready to
give his statement.7 Appellant's extrajudicial confession, which was taken down completely in the Cebuano
dialect,8 reads:
Pasiuna: Mr. ELIZAR TOMAQUIN, pahibaloon ko ikaw nga ubos sa atong batakang balaod (Constitution)
aduna kay katungod nga pahibaloon sa imong mga katungod, sama sa imong katungod sa pagpakahilum,
ingon man duna kay katungod sa pagdamgop/pagpilig sa abogado o manlalaban aron motabang kanimo
niining maong imbestighasyon nga may kalabutan sa kamatayon ni Jaqueline Tatoy niadtong mga alas 2:30
sa kaadlawon kapin kongkulang niadtong petsa 15 sa bulan sa Disyembra 1996, didto sa Brgy Lorega
proper, Siyudad sa Sugbo. Kong ugaling dili ka maka-abot pagbayad o pagpangitago abogado aron
motabang kanimo karon, ako isip negrepresenttar sa Estado mohatag akong abogado kanimo. Nasabtan ba
kini nimo?
chanroble svirtualawlibrary

Tubag: OO, nasabtan ka ang akong katungod?

chanroblesvirtualawlibrary

Pangutana: Pahabloon ko usab ikaw nga sumala usab sa atong Batakang Balaod, anfg tanan nga imong
isulti karon dinhi, mahimong magamit ebedensya pabor o batok kanimo sa bisan asaing husgado sa atong
nasud. Nasabtan be usab kini nimo?
chanroblesvirtualawlibrary

Tubag: OO, nasabtan ko usab kanang taan.

Pangutana: Tinuod ba gayod nga nasabtan pag-ayo nimo anf mao nimong mga katungod ug anadam ka ba
nga moperma karon dinhi timailhan sa imong tina-aw nga nga pagsabut? ingon man andam ka ba sa
pagsulti sa matuod walay lain kon kili ang matuod lamang gayud?
chanroblesvirtualawlibrary

Tubag: O
Tubag: Oo, andam ako nga mpemar Sir ug ania karon dinhi ai Atty Parawan ang among Brgy Captain nga
maoy akong giisip nga abogado nga akong pinili nga maoy motabang kanako karon. Aron sa pagmatuod,
ako kining pirmahan ning ika petsa 16 sa bulan sa Disyembre 1996.
...
Pangutana: Sunlion ko, andama bas a pagsulti sa matuod Elizar Tomaquin kon dili ang matuod lamang
gayud? Ingon man andam ka ba nga modawat sa resulta o linugdangan niini?
chanroblesvirtualawlibrary

Tubag: Oo, andam gyud ako.

Pangutana: Palihog isulti ang imong ngalan inong man ang tanan nga circumstacia o rmay kalambigitan sa
imong pagkatawo, sa imong grado, imong trabaho, imong pinuy-anan ug uban pa?
chanroblesvirtualawlibrary

Tubag: Ako si Elizar Tomaquin kinsa nagdala sa bansagon o apelyedo sa akong mama sanglit dili man
kasado and akong mama ug papa. Ang apelyedo sa akong papa, Cabagui ug and akon angga Hapon. Ako 19
anyos ang panuigon, ulitawo ug kasamtangan nga nagpuyo sa Brgy Lorega proper duol sa kapilaya San
Roque apan ako lumad nga taga Bo. Tunga, Moalboal, Cebu diin didto ano nakatungha sa grade six.

Pangutana: Niadtong kaadlawon sa petsa 15 sa bulan sa Disyembre 1996, diin ka man?

chanroblesvirtualawlibrary

Tubag: Sa sinugdanan nianang mga ala una kapin kon kulang kauba ko sa pag-inom si Rico Magdasal didito
sa Brgy Lorega Proper ug taodtaod niadto nilakaw ako libot sa sitio Itom Tuta ug dayon nakong saka sa
balay nila ni Jaqueline Tatoy sa Brgy Lorega nianang pagka mga alas 2:20 sa maong petsa/kadlawon agii sa
aberto nga bentana sa akong tuyo sa pagkawat sa ilang colored nga TV.
Pangutana: Nganong nakahiabwo ka man na duna silay TV nga colored?

chanroble svirtualawlibrary

Tubag: Suweto man ko kay permi ko magtan-awan sa ilang colored TV.

Pangutana: Niadtong niagi ka sa ilang bentana aron pagkawat sa ilang TV, diin ka man punta deretso.
Tubag: Deretso ako sa may lamesa sa ilang sala diin didto gibutang ilang TV.
Pangutana: Nakuha ba gayod nimo anf maong TV?

chanroble svirtualawlibrary

Tubag: Wala, kay sa akong pag-alsa sa among TV nisyagit man si Jaqueline Tatoy nga naghidga sa ilang
may terrace ug nidagan siya padulong sa kusina nila ug diha-diha akong siyang ginsunod, gilayog ug
gidunggab makadaghan pinaagi sa akong tres kantps nga hinagiban (Gidtudo ni Eliza rang Tres Kantos nga
nakit-an didto sa patyang lawas nga Jaqueline Tatoy).
Pangutana: Kapila nimo dunggaba ug diin maigo si Jaqueline Totay?

chanroble svirtualawlibrary

Tubag: Dili na ko nakahinumdom, ingon man dili sba ko makahinumdom kon diin to siya maigo. Basta
manadaghan to nako siya dunggaba ginamit ko ang akong Tres kantos.
Pangutana: Gawas nga imo to siyang gidunggab, wala ba nimo pahimudsi and iyang pagkapbabye o wala ka
bay plano sa pag rape kaniya niadtong higayona?
chanroble svirtualawlibrary

Tubag: Wala gyud to nako siya pahimudsi og wala gyud koy tuyo sa pag rape niya. Ang ako ra gyud nga
tuyo mao ra gyud and pagkawat sa ilang TV apan kay nisiyagit man siyang nakaila man kayo siya nako,
nahadlok kong mahibaw-an sa ako untang pagkawat sa ilang TV, hinungdan nga ako siyang gilayog ug
gidunggab makadaghan.
Pangutana: Nganog nakahibawo or nakaila ka man nga si Jaqueline Tatoy tong naisiyagit ug imong
gidunggab?
chanroble svirtualawlibrary

Tubag: Duna ma hayag nga suga sa elektresidad sa ilang may kusina.

Pangutana: Kaila ba nimong daan si Jaqueline Tatoy?

chanroble svirtualawlibrary

Tubag: Oo, Sir ka saw ala pa ang among hitabo permi man kong nagtan-awan sa ilang TV.
Pangutana: Human nim dunggaba si Jaqueline Tatoy unsa may sunod nimonh gibuhat?

chanroblesvirtualawlibrary

Tubag: Dihang sa akong pagtoo nga patay na siya, ako naidagan agi sa pultahan nga akong gisikaran dayon
kanaog subay sa hagdan didto nabiyaan nako ang akong sapatos.
Pangutana: Diin ka man paduiong dagan?

chanroblesvirtualawlibrary

Tubag: Didto ako padulong sa akong gipuya-an sa ilang Wilson Magdasal sa maong Brgy.
Pangutana: Unya unsa may sunod nimonh gibuhat og nahibaw-an?

chanroble svirtualawlibrary

Tubag: Niadtong hapon sa petsa 15 sa bulan sa Disyembre 1996, didtoy mga Brgy Tanods sa balay ni Wilson
Magdasal diin ila akong gipangutaan tali sa maong hitabo og igo lan ako nitudlo sa akong white Slave shirt
nga akong gihumulan ug tubig sa planggana sa tumong nga makuha ang mansa sa dugo nga pinisik sa
akong paggdunggab patay ni Jaqueline Tatoy.
Pangutana: Ngano ug unsa may diay kalabutan niadtong maong slaveless white shirt nimo?

chanroblesvirtualawlibrary

Tubag: Mao na ang akong gisul-ob dihang akog kawaton unta ang TV nila ni Jaqueline ug sa iyang pagsiyagit
ako siyang gidunggab-dunggab patay. (Elizar Yomaquin postivo nga nitudlo ug niangkon sa maong whitel
sleve less shirt)
Pangutana: Kinign nia karon dinhi nga sapatos itom nga nakuha didto so hagdan sa balay nila ni Jaqueline
Tatoy human siya nakit-i nga patay, unsa may imong ikasulti niini?
chanroble svirtualawlibrary

Tubag: Mao kana ang akong sapatos nga nabiyaan didto sa ilang hagdan human sa hitabo ug gain sa akong
pagdagan akong napatiran kadtong ilang container.
Pangutana: Sa pagkakaron, wala na akoy ipangutana kanimo. Ikay aduna ka pa bay ikasul ti o bakwion ba
hinoon sa mao nimong gipamahayag nga naglangkob sa duha ka pahina lakip niining maong pahina?
chanroblesvirtualawlibrary

Tubag: Wala na akoy ikadugang pagsulti ni bakwion ba hinnon. Nao kana ang tanan.
Pangutana: Andam ka ba pagperme niini sa pagmatuod nga wlay tawo nga nagpugos, naghulga, nagsaad ug
gnate o nag hadlok ba hinoon kon dili sa imong kaugalingon nga kabubut-on lamang.
Tubag: Oo, andam ako pageram. Aron matuoron kining tanan kini akong permaahn ning petsa 16 sa
Diusyembre 1996, Siyudad Sugbo, Pilipinas. 9
On the witness stand, appellant did not deny that he had a drinking spree with Rico Magdasal and three
other persons. His version of the incident is that it was Rico who committed the crime and not him.
Appellant testified that Rico asked his help in stealing the television set from the Tatoy's residence. When
Jacquelyn saw them, she ran towards the kitchen but she did not reach it as Rico had stabbed her on the
back with the tres cantos. Appellant claims that it was Rico who owns the tres cantos, as well as the pair of
shoes, left inside Tatoy's house. Afraid of what happened, appellant went home to Wilson Magdasal's house
and slept there. He was awakened the next morning bybarangay tanod Julius Yosores who kicked him.
Yosores also boxed and poked a gun at him. Appellant claims that Rico and Edgar Magdasal maltreated him
in the presence of barangay captain Atty. Fortunato Parawan when he was brought to the latter's house. He
was made to admit committing the crime because Rico has a family while he is single. 10
Appellant also repudiated his extrajudicial confession, saying that Atty. Parawan merely asked him to sign a
blank sheet of paper and in exchange, Atty. Parawan promised to assist and help him with his expenses. 11
After trial, the Regional Trial Court of Cebu City (Branch 18) (RTC for brevity) rendered its decision on
October 24, 1997, convicting appellant of the crime of Murder, to wit:
WHEREFORE, in view of all the foregoing considerations, accused Elizar Tomaquin is found guilty beyond
reasonable doubt of the crime of Murder and is hereby imposed the penalty of RECLUSION PERPERTUA, with
the accessory penalties of the law; to indemnify the heirs of Jaquelyn Tatoy in the sum of P50,000.00 and to
pay the costs. The accused is, however, credited in full during the whole period of his detention provided he
will signify in writing that he will abide by all the rules and regulations of the penitentiary.
SO ORDERED.12
Hence, this appeal.
In his Brief, appellant raises the following Assignment of Errors:

1. THE TRIAL COURT ERRED WHEN SHE (SIC) CONVICTED ACCUSED-APPELLANT BASED ON HIS
UNCOUNSELLED CONFESSION;
2. THE TRIAL COURT LIKEWISE ERRED WHEN SHE (SIC) GAVE FULL CREDENCE AND FULL FAITH ON THE
TESTIMONY OF THE PROSECUTION WITNESSES;13
Appellant's extrajudicial confession was taken and transcribed entirely in the Cebuano dialect. Rule 132,
Section 33 of the Revised Rules on Evidence provides:
Sec. 33. Documentary evidence in an unofficial language. - - Documents written in an unofficial language
shall not be admitted as evidence, unless accompanied with a translation into English or Filipino. To avoid
interruption of proceedings, parties or their attorneys are directed to have such translation prepared before
trial.
The rule is that when there is presented in evidence an exhibit written in any language other than the official
language (Filipino or English), if there is an appeal, that exhibit should be translated by the official
interpreter of the court, or a translation should be agreed upon by the parties, and both original and
translation sent to this court.14 In this case, there is no official translation of appellant's extrajudicial
confession in the Filipino or English language. If the Court were to strictly follow the rule, then appellant's
extrajudicial confession should not have been admitted by the trial court as evidence for the prosecution.
Nevertheless, considering that appellant did not interpose any objection thereto, and the parties and the
judicial authorities or personnel concerned appeared to be familiar with or knowledgeable of Cebuano in
which the document was written,15 such extrajudicial confession was appropriately considered by the trial
court as evidence for the prosecution.
As stated at the outset, the crucial issue in this case is whether or not the extrajudicial confession executed
by appellant, with the assistance of Atty. Fortunato Parawan, is admissible in evidence against him. There is
no need at this point to secure an official translation of the confession to English.
Section 12, Article III of the 1987 Constitution provides:
(1) Any person under investigation for the commission of an offense shall have the right to be informed of
his right to remain silent and to have competent and independent counsel preferably of his own choice. If
the person cannot afford the services of counsel, he must be provided with one. These rights cannot be
waived except in writing and in the presence of counsel.
The words "competent and independent counsel" in the constitutional provision is not an empty rhetoric. It
stresses the need to accord the accused, under the uniquely stressful conditions of a custodial investigation,
an informed judgment on the choices explained to him by a diligent and capable lawyer.16
As heretofore stated, Atty. Fortunato Parawan, at that time, was the barangay captain of Barangay Lorega,
Cebu City. Under the 1991 Local Government Code, a barangay captain performs the following duties and
functions:
(a) The punong barangay, as the chief executive of the barangay government, shall exercise such powers
and perform such duties and functions, as provided by this Code and other laws.
(b) For efficient, effective and economical governance, the purpose of which is the general welfare of the
barangay and its inhabitants pursuant to Section 16 of this Code, the punong barangay shall:
(1) Enforce all laws and ordinances which are applicable within the barangay;
...
(3) Maintain public order in the barangay and, in pursuance thereof, assist the city or municipal mayor and
the sanggunian members in the performance of their duties and functions; . . . 17

Simply put, Atty. Parawan, as barangay captain, is called upon to enforce the law and ordinances in
his barangay and ensure peace and order at all times.
In fact, as barangay captain, Atty. Parawan is deemed a person in authority under Article 152 of the Revised
Penal Code, to wit:
ART. 152. Persons in authority and agents of persons in authority. - Who shall be deemed as such. - In
applying the provisions of the preceding and other articles of this Code, any person directly vested with
jurisdiction, whether as an individual or as a member of some court or government corporation, board, or
commission, shall be deemed a person in authority. A barrio captain and a barangay chairman shall also be
deemed a person in authority.
On these bases, it is not legally possible to consider Atty. Parawan as an independent counsel of appellant.
In People v. Culala,18 the Court reiterated the rule that a municipal attorney cannot be an independent
counsel because as a legal officer of the municipality, he provides legal assistance and support to the mayor
and the municipality in carrying out the delivery of basic services to the people,including the maintenance of
peace and order, and it was seriously doubted whether he can effectively undertake the defense of the
accused without running into conflict of interests. Thus, the Court held that he is no better than a fiscal or a
prosecutor who cannot represent the accused during custodial investigations. 19
This is reiterated in People v. Taliman,20and People v. Velarde,21where we further ruled that a municipal
mayor cannot likewise be an independent counsel as required by the Constitution.
Similarly in this case, considering that Atty. Parawan's role as a barangay captain, was a peacekeeping
officer of his barangay and therefore in direct conflict with the role of providing competent legal assistance
to appellant who was accused of committing a crime in his jurisdiction, Atty. Parawan could not be
considered as an independent counsel of appellant, when the latter executed his extrajudicial confession.
What the Constitution requires is the presence of an independent and competent counsel, one who will
effectively undertake his client's defense without any intervening conflict of interest. 22
Neither does Atty. Parawan qualify as a competent counsel, i.e., an effective and vigilant counsel. An
"effective and vigilant counsel" necessarily and logically requires that the lawyer be present and able to
advise and assist his client from the time the confessant answers the first question asked by the
investigating officer until the signing of the extrajudicial confession. As held in People v. Velarde:23
. . . The competent and independent lawyer so engaged should be present 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.24
Moreover, the lawyer should ascertain that the confession is made voluntarily and that the person under
investigation fully understands the nature and the consequence of his extrajudicial confession in relation to
his constitutional rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to
remain silent, to counsel and to be presumed innocent. 25
The assistance rendered by Atty. Parawan to appellant cannot be fittingly described as effective and vigilant.
As testified by Atty. Parawan, hereinbelow quoted verbatim, this was what transpired when he went to the
Ramos police station to assist appellant during the investigation:
Q What happened when you arrived at the Ramos Police Station at around 2:00 o'clock in the afternoon of
December 16, 1996?
chanroble svirtualawlibrary

A I go (sic) to the room where Policeman Monilar and the accused and had a conversation with the accused.
Q What transpired during that conversation with the accused.

A I asked him. Are you going to get me as your lawyer?

Q And may we know what did he answer?

chanroblesvirtualawlibrary

chanroblesvirtualawlibrary

A Yes, Cap. Okay Cap.

Q When you said "Cap" what did he mean by that word "Cap."
A Being a Barangay Captain.
Q After the accused told you that you were his counsel of choice. What did you do next if any?

chanroblesvirtualawlibrary

A I informed Elizar Tomaquin that do you know what will be the implication of your admission, you will be
imprisoned.
Q After you asked him whether he knew of the implication of his confession that could be - because of that
confession. What was his reaction?
chanroble svirtualawlibrary

A Yes Cap. I know. And then I told him as follows: "Because of this confession you will be imprisoned."
Q And what did he say after you told him again that if he would execute that affidavit of confession he would
surely be imprisoned?
chanroble svirtualawlibrary

A No I even continue that "why did he do that?"

Q And what did he answer?

chanroble svirtualawlibrary

A He answered to me that he was drunk at that time.

Q And so what transpired next?

chanroble svirtualawlibrary

A So I told him are you willing now to give your confession, then policeman Monilar went inside the room
and we had that investigation.
Q Now how was the investigation of the accused done?

chanroble svirtualawlibrary

A It was made in a question and answer form.

Q And in what language were the questions framed?

chanroble svirtualawlibrary

A In the vernacular, vesaya.

Q What did you do during the question and answer form of investigation?

chanroblesvirtualawlibrary

A I just observed them.

Q But did you stay there until the whole taking of the confession was over?

chanroble svirtualawlibrary

A Yes I was there in the presence of two persons coming from my Barangay.
...

Q When you arrived and saw Mr. Monilar with the accused as an Attorney did you immediately inquire what
had happened before you arrived like; Did you start the investigation? did you inquire from that from Mr.
Monilar?
chanroble svirtualawlibrary

A He was already preparing this top portion here.

INTERPRETER:
Q Witness pointing to the upper portion of the certification up to the signature to that portion above the
names typewritten thereon.
...
Q And that means to say that when he prepared this from the top most portion to that portion immediately
right before the typewritten name Elizar Tomaquin and Atty. Fortunato Parawan you were not around.
Correct?
chanroble svirtualawlibrary

A I was not around but we have already a conversation earlier with Monilar.26
Records also show that appellant was presented to SPO2 Monilar in the morning of December 16, 1996.
When appellant intimated that he was willing to confess and requested the presence of Atty. Parawan, SPO2
Monilar called up Atty. Parawan and informed him of appellant's decision. Atty. Parawan arrived at the Ramos
Police Station only at 2:00 in the afternoon.27 By the time Atty. Parawan arrived, the investigation had
already started and SPO2 Monilar had already asked and elicited information from appellant. Worse, Atty.
Parawan merely "observed" during the entire investigation and failed to advise or explain to appellant the
questions being propounded by SPO2 Monilar. He did not even bother to ask appellant if the extrajudicial
confession he was about to execute was being voluntarily given.
Moreover, that Atty. Parawan is not an effective and vigilant counsel is bolstered by his own testimony that
he already suspected appellant as having committed the crime when the latter was brought to his house by
the barangay tanods, viz.:
Q Being an attorney naturally your first question to your arresting tanods was where was he arrested and
how was he arrested and what is the reason why he was arrested. Correct?
chanroble svirtualawlibrary

A Yes.
...
Q You are telling this Court now Atty. Parawan that before the Barangay Tanods could explain to you the
circumstances of his arrest you already started to ask questions like; Why did you have blood in your pants.
Where is your t-shirt you wore. Where did you get that information since you were not in the house of
Jaqueline Tatoy when she was killed?
chanroble svirtualawlibrary

A It was like this. I heard that the victim suffered multiple stab wounds. So when I saw blood stains with all
probability it might come from the victim. It was conclusion something like when I saw that t-shirt stained
with blood.
Q So you mean to this Court that you already reached the conclusion of mine (sic) that Elizar Tomaquin one
of your constituents in the Barangay was already on your conclusion in mine (sic) the killer of Jacquilyn
Tatoy before your tanods turned it over to the police for investigation. Is that what you are telling Atty.
Parawan?
chanroblesvirtualawlibrary

A It is somewhat like that. That is why I ordered my tanod to bring him to the Homicide. 28

The Court cannot imagine how Atty. Parawan could have effectively safeguarded appellant's rights as an
accused during the investigation when he himself entertained the suspicion that appellant is guilty of the
crime charged, and naturally, he would want appellant to admit having committed it.
It was posited that appellant cannot challenge Atty. Parawan's qualification as a competent and independent
counsel because he was his choice.
As provided in Section 12, Article III of the 1987 Constitution, "(A)ny person under investigation for the
commission of an offense shall have the right - to have competent and independent counselpreferably of his
own choice. Ideally, the lawyer called to be present during such investigations should be as far as reasonably
possible, the choice of the individual undergoing questioning, but the word "preferably" does not convey the
message that the choice of a lawyer by a person under investigation is exclusive as to preclude other equally
competent and independent attorneys from handling his defense. 29 What is imperative is that the counsel
should be competent and independent. That appellant chose Atty. Parawan does not estop appellant from
complaining about the latter's failure to safeguard his rights.
It appears that appellant chose Atty. Parawan because he was the barangay captain of Brgy. Lorega where
appellant resides, and apparently, appellant trusts Atty. Parawan to protect his rights. The latter, however,
fell short in tending to the trust reposed on him. Appellant did not finish Grade 1 and does not know how to
read and write.30 As between him and Atty.
Parawan who presumably knows the intricacies of the law and appellant's predicament, Atty. Parawan should
have known better and exercised his sound judgment before conceding to appellant's choice. But it did not
occur to him to inhibit himself from acting as appellant's counsel and instead, he even let appellant go
through the investigation and execute the extrajudicial confession knowing fully well that he was biased as
regards appellant's innocence. Quoted verbatim, Atty. Parawan testified thus:
Q Atty. Parawan comparing yourself to the accused who is a graduate of Batchelor (sic) of Law compared to
your constituent who is jobless, illiterate [and] of low intelligence. The question is this: It did not occur to
your mine (sic) to inhibit yourself despite the request by telling the accused as barangay Captain there could
be a conflict of interest and bias that I would not be in (sic) effective counsel or assistance to you. Did it not
occur toy our mine (sic) or not?
chanroble svirtualawlibrary

A It did not occur to my nime (sic).

...
Q But as experienced attorney you know very well that when you assist a suspect in the police station and
the circumstances he was arrested the best assistance a lawyer could give is would be to tell the accused to
remain silent. Would you agree?
chanroble svirtualawlibrary

...
A It did not occur to my mine (sic) that time.31
Clearly, Atty. Parawan failed to meet the exacting standards of an independent and competent counsel as
required by the Constitution. Thus, the extrajudicial confession executed by appellant, even if gospel truth,
is deemed an uncounselled confession and therefore, inadmissible in evidence.
In this regard, it may not be amiss to repeat the declaration of the Court in People v. Deniega,32stressing the
role of the courts in ascertaining that extrajudicial confessions meet the exacting standards of the
Constitution:
Every so often, courts are confronted with the difficult task of taking a hard look into the sufficiency of
extra-judicial confessions extracted by law enforcement authorities as the sole basis for convicting accused
individuals. In cases of crimes notable for their brutality and ruthlessness, the impulse to find the culprits at
any cost occasionally tempts these agencies to take shortcuts and disregard constitutional and legal
safeguards intended to bring about a reasonable assurance that only the guilty are punished. Our courts,

in the process of establishing guilt beyond reasonable doubt, play a central role in bringing about
this assurance by determining whether or not the evidence gathered by law enforcement
agencies scrupulously meets exacting standards fixed by the Constitution. If the standards are
not met, the Constitution provides the corresponding remedy by providing a strict exclusionary
rule, i.e., that "[a]ny confession or admission obtained in violation of (Article III, Section
12(1) . . . hereof shall be inadmissible in evidence."
Without appellant's extrajudicial confession, the prosecution's case now teeters precariously on
circumstantial evidence, namely:
(1) Rico Magdasal's testimony that:
(a) appellant left their drinking session at 1:00 in the morning of December 16, 1996;
(b) the tres cantos and pair of shoes found inside Jaquelyn's residence belongs to appellant; and

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(c) appellant was wearing a pair of maong shorts and white sando shirt on the night of the crime, which
blood-stained shirt was found among the soiled clothes in Wilson Magdasal's house;
(2) Medical Technologist Jude Daniel Mendoza's testimony that the blood stains on appellant's sando shirt
and the tres cantos was of human origin.33
These circumstances, however, are not sufficient to demonstrate positively and convincingly that it was
appellant who killed Jaquelyn.
Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence would be sufficient to convict if (a)
there is more than one circumstance; (b) the facts from which the inferences are derived are proven; and
(c) the combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.34 As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can be
upheld only if the circumstances proven constitute an unbroken chain which leads to one fair and reasonable
conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the
circumstances proven must be consistent with each other, consistent with the hypothesis that the accused is
guilty, and at the same time inconsistent with any other hypothesis except that of guilty.35
The circumstantial evidence in this case does not constitute an unbroken chain leading to one fair and
reasonable conclusion that appellant is the guilty person.
For one, appellant's act of leaving the drinking session at 1:00 in the morning does not establish appellant's
whereabouts at the time the crime was committed. There is nothing in the testimony of Rico Magdasal and
the other prosecution witnesses that will show if appellant indeed went to Jaquelyn's house after he left the
group. No one saw him enter or leave her residence. If at all, what was proved is that appellant was found
by the barangay tanods sleeping at home in the afternoon of the same day.
Added to that is the prosecution's failure to establish the chain of custody of these valuable pieces of
evidence.
Prosecution witness Armando Zabate testified that the pair of black shoes and tres cantos were given to a
certain Rey for safekeeping. These were later turned over to a Policeman Tariao of the Ramos Police Station.
Zabate, however, did not identify the person who turned over the objects to the police. 36 There was no
showing who turned over those articles to the police and Rey was not presented to identify if these were the
same pair of shoes and tres cantos found in Jaquelyn's house and turned over to the police. Policeman
Tariao was not called to the witness stand so as to confirm if those articles were the same evidence turned
over to him and later presented in court. Ordinarily, it would not be indispensable for the prosecution to
allege and prove every single fact of the case. But in this case, the pieces of evidence are crucial to the
prosecution's case. Also, the fact that a civilian obtained and received the evidence, the possibility that the
integrity of these articles could have been compromised cannot be ignored. The Court even noted that
during his direct examination, SPO2 Monilar was confused as to whether the pair of shoes presented in court
was the same ones that were turned over to the police. It turned out that the marking he made on the

shoes were washed off because at one time, the shoes fell in the canal located in front of the police station
and they had to clean and wash the shoes! 37 Such sloppy handling renders the chain of custody of those
pieces of evidence dubious, and damaging to the prosecution's case.
And even if appellant did own the pair of shoes and tres cantos, the fact that it was found in the scene of the
crime merely proved that he was in the residence of Jaquelyn at some point in time. But it does not prove
when particularly he was there, his authorship of the crime or his motive for being
there. While the motive of an accused in a criminal case is generally held to be immaterial, not being an
element of the crime, motive becomes important when, as in this case, the evidence of the commission of
the crime is purely circumstantial.38
The prosecution's evidence that is perceived to be conclusive of appellant's guilt is mainly the testimony of
Rico Magdasal. Such testimony, however, is uncorroborated. The rule is that the testimony of one witness is
sufficient to sustain a conviction, if such testimony positively establishes the guilt of the accused
beyond reasonable doubt.39 Moreover, the doctrine of long standing that the testimony of a lone witness,
if credible and positive, is sufficient to convict an accused applies only to eyewitnesses. Thus, an
uncorroborated circumstantial evidence is certainly not sufficient for conviction when the evidence itself is in
serious doubt.40 Rico's lone testimony is not sufficient to establish appellant's guilt beyond reasonable doubt.
In addition, appellant vehemently denied Rico's allegations. According to appellant, it was Rico who actually
owns the pair of shoes and tres cantos; that it was he who bid appellant to go to the Tatoys' residence and
lift their TV set; and that it was Rico who stabbed Jaquelyn. Considering appellant's denial and his different
version of the incident, it became incumbent upon the prosecution to rebut appellant's allegations with
further evidence to corroborate the statement of Rico. It must be noted that there were other persons
present during their drinking spree, namely, Romy Magdasal, Noel Labay, and a certain Cardo. These
persons could have been presented as witnesses to back up Rico's claim but the prosecution did not do so.
Rico testified that appellant owned the tres cantos found by the stairs; but Rico also stated he only "heard"
that the tres cantos was found by the stairs.41 Who found the tres cantos that was supposed to have been
used to stab Jaquelyn? The neighbor who allegedly found it by the stairs was not presented in court to
identify if the tres cantos presented by the prosecution was the alleged weapon in the stabbing of Jaquelyn.
Such failure of the prosecution to corroborate the material points of Rico's testimony weakened their case.
The Court also has serious misgivings on the probative value of the white sando shirt that appellant was
allegedly wearing at the time of stabbing Jaquelyn, which Edgar Magdasal later found bloodstained among
the soiled clothes.
First, when appellant was asked by the barangay tanods about the shirt he was wearing, he told them that it
was in Wilson Magdasal's house. According to barangay tanod Armando Zabate, it was Edgar Magdasal who
found the shirt, "somewhat wet and bloody," among the soiled clothes. 42 Edgar Magdasal, however, was not
presented to testify as to where he found the shirt, the state the shirt was in when he found it, and how he
knew that it was the shirt worn by appellant.
Second, Medical Technologist Jude Daniel Mendoza testified that the bloodstains on appellant's sandoshirt,
as well as the tres cantos, were human blood.43 Mendoza, however, did not conduct further tests to ascertain
the type of blood found on these pieces of evidence nor did he match it with the victim's blood type, 44 hence,
it does not connect the bloodstains to the herein victim. In People v. Rodriguez, the Court ruled that
the maong pants allegedly belonging to appellant and found positive of type O blood has no probative value
since the blood type of appellant and the victim were not taken for purposes of comparison. 45
The same ruling applies with regard to the bloodstains found on the tres cantos.
Appellant enjoys in his favor the presumption of innocence until the contrary is proven. Proof of the guilt of
the accused should not be tainted with ambiguity. Although appellant's defense is weak, conviction must
come from the strength of the prosecution's evidence and not from the weakness of the defense. In this
case, the prosecution's evidence is not strong enough to justify a finding of guilt beyond reasonable
doubt.46 Acquittal, therefore, is inevitable.

WHEREFORE, appellant Elizar Tomaquin is hereby ACQUITTED and ordered RELEASED immediately, unless
he is being detained for some other legal cause.
The Director of the Bureau of Corrections is directed to cause the immediate release of appellant unless he is
being lawfully held for another cause, and to inform this Court of the date of his release, or the ground for
his continued confinement, within ten (10) days from notice of herein decision.
Costs de oficio.

G.R. No. 112177. January 28, 2000.]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. TITO ZUELA y MORANDARTE, MAXIMO
VELARDE y DE LOS REYES, and NELSON GARCIA y TEMPORAS, Accused-Appellants.
DECISION
PARDO, J.:
The case is an appeal of accused Maximo Velarde y de los Reyes, Nelson Garcia y Temporas and Tito Zuela y
Morandarte from the decision 1 of the Regional Trial Court, Camarines Sur, Libmanan, Branch 24, finding
them guilty beyond reasonable doubt of robbery with homicide and sentencing each of them to reclusion
perpetua, and to pay jointly and severally the amount of one hundred thousand (P100,000.00) pesos to the
heirs of Maria Abendao and John Abendao, and fifty thousand (P50,000.00) pesos to the heirs of Hegino
Hernandez, without subsidiary imprisonment in case of insolvency, and to pay the costs. 2
On July 29, 1985, Assistant Provincial Fiscal Julian C. Ocampo III filed with the Regional Trial Court,
Libmanan, Camarines Sur an information charging accused Maximo Velarde y de los Reyes, Nelson Garcia y
Temporas and Tito Zuela y Morandarte with "robbery with triple homicide" committed as follows:
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"That in the evening of April 27, 1985 in Camagong, Cabusao, Camarines Sur, Philippines, the above-named
accused, conspiring and confederating together and mutually aiding each other, with intent to gain, did then
and there, willfully, unlawfully, and feloniously, with violence and intimidation gainst [sic] persons, that is by
shooting and stabbing one Hegino Hernandez, Sr., Maria S. Abendao and John-John Abendao, thereby
inflicting upon them mortal injuries that caused their instantaneous death, take, rob and carry away the
following personal properties belonging to the said Maria Abendao, to wit:
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(1) Cash money P21,000.00

(2) one gold ring P750.00
(3) one Seiko wrist watch P1,250.00

P23,000.00
"That as a consequence of the felonious act of the accused, the heirs of the deceased suffered damages in
the amount of P25,000.00 each, representing indemnity for death, loss of earning capacity and moral
damages.
"CONTRARY TO LAW." 3
On June 1, 1985, Maximo Velarde was arrested at Magallanes, Sorsogon, while accused Nelson Garcia and
Tito Zuela were arrested at Cabusao, Camarines Sur on June 4, 1985 and June 9, 1985, respectively.
On March 26, 1987, all three accused, were arraigned with the assistance of their counsel, and pleaded not
guilty to the charge. Trial ensued.
The evidence established the following facts:

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Maria Abendao was engaged in business. She had a store, operated a passenger jeepney and engaged in
the buy and sale of palay. Her house cum store was beside that of her sister Romualda Algarins house, by
the roadside in Barcelonita, Cabusao, Camarines Sur. Romualda also had a store.
Accused Nelson Garcia was Marias store helper. Accused Tito Zuela alias "Anting" helped Romualda in her
store during palay season. The other accused Maximo Velarde was known to Romualda because she met him
at a birthday party held at Marias house on April 19, 1985. The three accused were friends.
On April 27, 1985, Maria made three (3) deliveries of palay on board her jeepney, driven by Hegino

Hernandez, Jr., to the ricemill of Gerardo Benitez in San Juan, Libmanan, Camarines Sur. Every delivery
costs seven thousand (P7,000.00) pesos. The three deliveries were made at 9:00 in the morning, 2:00 in
the afternoon and 7:30 in the evening. 4
Between 6:30 and 7:00 in the evening of that day, from a distance of five (5) arms length, Romualda saw
the three (3) accused board the jeepney of Maria, bound for San Juan, Libmanan, Camarines Sur. Because
the jeepney was filled with palay, they merely held on the railing of the jeepney. 5 There were other
passengers namely, Pablo Abendao and Roberto Echiaca. 6
Gerardo Atienza, the buyer of palay, saw Maximo inside the jeepney during the second and third delivery of
palay to his ricemill. 7 For each delivery, Gerardo paid Maria the amount of seven thousand (P7,000.00)
pesos.
The following morning, the bodies of Hegino Hernandez, Maria and John-John Abendao were found in rigor
mortis condition at New Poblacion, Cabusao, Camarines Sur. 8
Dr. Restituto Sampilo, municipal health officer of Cabusao, found Maria in a reclining position on the front
seat of the jeepney. John was in a semi-kneeling position, facing his mother with both hands clasping her
left hand. Hegino was at the steering wheel with his body, from the abdomen up, resting on the side of the
vehicle and his head outside of it. 9 A bullet that exited from Heginos left eyebrow caused the wound near
his right ear. 10
Maria had a horizontal stab wound at the front part of her neck just above the xyphoid process. 11 Her
seven (7) year old son, John, had a three (3) inch slashed horizontal wound at the front base of the neck, a
two (2) inch wound on the left upper arm and two (2) stab wounds on the lateral side of the neck at the
junction of the right shoulder. 12 Hegino had a small wound with slightly depressed edges, about an inch
from the highest tip of the right ear, a wound with everted and lacerated edges above the middle part of the
left eyebrow, and seven (7) stab wounds at the back. 13
Though there were no eyewitnesses, the prosecution established how the crime was committed with the
testimony of Romualda Algarin, which was in turn based on the extrajudicial admission given by Maximo
Velarde to Romualda when she visited the latter at the Camaligan municipal jail on June 6, 1985.
Maximo, Tito and Nelson conceived the plan to hold-up Maria while drinking in front of Romualdas store
because Maximo needed money for his fare to Manila.
When the palay-laden jeepney of Maria left for Libmanan, Camarines Sur Maximo, Tito and Nelson boarded
it. They alighted at sitio Cagumpis, Camagong, Cabusao, Camarines Sur to attend a wedding. 14 Maximo
was supposed to board the jeepney on its way back to Barcelonita, while the other two (2) accused, Tito and
Nelson would wait along the road at the crossing of New Poblacion and Camagong, Camarines Sur to board
the jeepney and hold-up Maria.
Everything went according to plan. Nelson and Tito hailed the jeepney at the crossing of Cabusao,
Camarines Sur. Upon reaching an uninhabited place, Tito alias "Anting" told Velarde: "Oragui na ngaya ang
driver." 15 Maximo poked a gun at the driver and shot him. He also shot Maria at the neck when the latter
shouted. 16
Nelson and Tito alighted from the jeepney. Nelson went to the left front side of the jeepney, while Tito
approached the right front side of the jeepney, in the process stepping on the sleeping John-John who was
then awakened. The boy stood up and said, "You will see I will tell my father that you killed my mother." 17
To avoid being identified by the boy, Tito told Maximo "Oragui na ini." 18 Maximo took hold of the boys hair
and slashed his neck.
Tito took Marias money and divided it, each accused receiving about seven thousand (P7,000.00) pesos
from the loot.
Tito and Nelson went back to Barcelonita, Cabusao, Camarines Sur. Maximo proceeded to Manila.

chanroble s virtual lawlibrary

On June 1, 1985, Lt. Ernesto J. Idian, Station Commander, Cabusao Police Station, Cabusao, Camarines Sur
assisted by two (2) other policemen, arrested Maximo in Magallanes, Sorsogon. Though no warrant of arrest
had been issued, Maximo was immediately brought to the Camaligan police station in Camaligan, Camarines
Sur where he was investigated and asked to give a written statement in the presence of Atty. Jose Ocampo

from the Citizens Legal Assistance Office (CLAO), Naga City. 19

On June 4, and 9, 1985, Tito and Nelson were taken into police custody without a warrant. They underwent
custodial investigation without the assistance of counsel because no lawyer could be found in Cabusao,
Camarines Sur.
On the last page of each accuseds confession appeared a statement, in their own handwriting, to the effect
that they voluntarily gave their statements and that no one coerced or promised them anything to admit
responsibility for the crime.
Maximo, Nelson and Tito signed their individual statements before Judge Lore R. Valencia Bagalacsa,
Municipal Circuit Trial Court, Libmanan, Camarines Sur on three (3) different dates. 20 She followed the
same procedure and line of questioning, using the local dialect, in ascertaining the voluntariness of the three
(3) accuseds confessions. She ordered Lt. Idian and his companions to leave her and the accused inside the
chamber. 21 Satisfied that they were properly apprised of their rights and that they voluntarily executed
their statements, she had them sign their individual extrajudicial statements.
Antonio Abendao, the husband of Maria, was working at Saudi Arabia when his family was killed. He came
to know about the tragic death of his wife and son through an overseas call from his brother Renato
Abendao. When he learned about it, he became unconscious. He arrived in the Philippines five (5) days
after. 22 He knew Nelson Garcia because he was the son of his cousin. He was also familiar with Tito Zuela,
but he did not know Maximo Velarde. He spent twenty thousand (P20,000.00) pesos for the funeral of his
wife and son. He gave one thousand (P1,000.00) pesos financial assistance to the family of their driver,
Hegino. 23
On the other hand, Maximo, Tito and Nelson interposed common defenses: (1) denial and (2) that they were
tortured and forced to make a confession. In addition, Tito and Nelson claimed they were not assisted by
counsel when their confessions were taken, while Maximo alleged the defense of alibi saying that he did not
leave Magallanes, Sorsogon anytime in 1985.
On June 1, 1985, five (5) persons, led by Lt. Idian, went to the house of Maximo Velarde in Magallanes,
Sorsogon to fetch him because his parents wanted him at Cabusao, Camarines Sur as his brother Benito
Velarde died. He was shown the picture of the cadaver of his brother. Maximo went with the group of Lt.
Idian on board a red car and traveled to Naga City, arriving there between 7:00 and 8:00 in the evening.
In a dark place before reaching Naga City, the driver stopped the vehicle to urinate. Before the driver could
return, Maximo felt a hard object hit his head and he passed out. When he regained consciousness, he was
already handcuffed. Pointing a gun at him, Lt. Idian told him that he had two choices, either to die or sign
the statement they prepared because his brother had wronged them. He was warned not to tell anyone that
he was mauled. Thereafter, they proceeded to the Camaligan municipal jail.
Two days later or on June 3, 1985, Maximo was brought out of the jail and ushered into a small room where
he saw three persons, namely Lt. Idian, Atty. Jose Ocampo from CLAO, Naga City and Pat. Gonsalo Refe, a
police investigator from Cabusao, Camarines Sur. Atty. Ocampo read to him the contents of a prepared
statement, which in substance mentioned that some people died and that he was responsible for their death.
Maximo refused to sign. Atty. Ocampo stepped out of the room, followed by Lt. Idian and he overheard that
he would be made to sign the statement in Atty. Ocampos office in Naga City. Atty. Ocampo then left and Lt.
Idian returned to the room.
Upon Lt. Idians return to the smaller room, he kicked Maximo in the stomach and poked a gun at him.
Consumed by fear, Maximo promised that he would sign the prepared statement. He was then handed a
piece of paper and ordered to copy its contents on the prepared statement. Found on page 5 of his
extrajudicial confession was this statement, in his own handwriting:
jgc:chanroble s.com.ph

"Opo binasa ko po ang apedabeth na ito na may 5# pahina na pawang totoo at sasareling kagustohan at
walang nantakot o nangako." 24
On June 4, 1985, Maximo again signed the statement before Judge Lore R. Valencia Bagalacsa, Municipal
Circuit Trial Court, Libmanan, Camarines Sur. From the time accused Maximo was arrested, he was never
released. Maximo denied that he saw and talked to Romualda on June 6, 1985 at the Camaligan municipal
jail because he had been detained at the Libmanan municipal jail since June 4, 1985.

For his part, Nelson Garcia denied any knowledge of the crime. On June 4, 1985, the group of Pat. Gonsalo
Refe went to his house and invited him to the office of Lt. Idian. He was brought to the Camaligan Police
Station. Upon their arrival, Lt. Idian talked to him and tried to convince him to confess to the killing of the
Abendaos. Because Nelson refused, Lt. Idian brought him upstairs and mauled him. He was transferred to
Naga City jail, where he was detained for two (2) hours.
Thereafter, he was brought to the Cabusao Police Station where Pat. Rodolfo O. Cario subjected him to
another investigation. Because of his continued refusal to confess, he was mauled again, this time by Pat.
Cario.
To avoid further injury to his person, on June 5, 1985, Nelson Garcia was forced to sign the prepared
statement. He was neither informed of its contents nor assisted by counsel. He was handed a piece of paper,
the contents of which he was ordered to copy, in his own handwriting, and in substance was similar to what
Maximo was ordered to copy as his own extrajudicial statement. He was brought to the office of Judge
Bagalacsa that same afternoon so that he could sign his extrajudicial statement.
From the time he was invited to the office of Lt. Idian, Nelson was never released from police custody. He
was first detained at the Libmanan municipal jail, and later on transferred to the Tinangis Penal Farm in Pili,
Camarines Sur. Though he suffered physically from the beatings he got from the policemen, he was never
permitted to see a doctor. His relatives were not able to visit or talk to him because the policemen prohibited
visitors.25
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Like Nelson, Tito alias "Anting," denied participation in the crime. On July 9, 1985, Pat. Refe invited him to
the office of Lt. Idian in Cabusao, Camarines Sur. Upon arrival at the police station, he was investigated
about his knowledge of the crime. Failing to elicit any information from him, he was brought to Libmanan jail
where he spent the night.
The following day, Tito was again brought to Cabusao Police Station and presented to Lt. Idian. In Lt. Idians
office, he was investigated about his involvement in the crime. When he could not provide any answer, he
was made to board the police jeep, to be brought back to the Libmanan jail.
Along the way, the police jeep stopped and Pat. Cabrera got off and kicked Tito who fell to the ground. He
heard a gunshot and was shown the piece of paper that he was ordered to sign before Judge Bagalacsa. He
was threatened with death should he refuse to sign the prepared statement. Out of fear for his life, Tito
promised to sign. Thereafter, they boarded the police jeep and proceeded to the office of Judge Bagalacsa in
Libmanan, Camarines Sur.
Upon arrival at the office of Judge Bagalacsa, he was ordered to sign the statement without the assistance of
counsel and without being informed of its contents. Thereafter, he was brought to Libmanan municipal jail
and later to Tinangis Penal Farm. Like his co-accused, he was never released from police custody from the
time of arrest.
On August 26, 1993, the trial court promulgated its decision convicting the three (3) accused of robbery with
homicide, the dispositive portion of which reads:
jgc:chanroble s.com.ph

"WHEREFORE, after a careful and serious evaluation of the evidence presented by the prosecution and the
defense, the Court is morally convinced beyond reasonable doubt, that the three (3) accused Maximo
Velarde, Tito Zuela and Nelson Garcia had committed the crime of Robbery with Homicide and, therefore,
sentences them to suffer the penalty of imprisonment of reclusion perpetua and to pay jointly and severally
an indemnity in the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS for the Heirs of Maria
Abendao and John Abendao and FIFTY THOUSAND (P50,000.00) PESOS for the Heirs of Hegino
Hernandez, without imprisonment in case of insolvency, and to pay the costs.
"SO ORDERED.
"GIVEN this 26th day of July, 1993 at Libmanan, Camarines Sur, Philippines.
"(Sgd.) SALVADOR G. CAJOT
"Presiding Judge" 26
On the same day, all three (3) accused filed a notice of appeal with the trial court.

In their appeal, Accused-appellants claim that the trial court erred in:

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(1) relying on Maximo Velardes extra-judicial confession notwithstanding the violation of his constitutional
rights;
(2) giving full faith and credit to Romualda Algarins testimony; and
(3) finding all three (3) accused guilty as charged despite the prosecutions failure to prove their guilt
beyond reasonable doubt.
Considering that there were no eyewitnesses to the commission of the crime, the extra-judicial confessions
of the three (3) accused play a pivotal role in the determination of their culpability. The Court is duty-bound,
therefore, to resolve the issue of whether or not the extra-judicial confessions were executed in accordance
with the provisions of the 1973 Constitution, in light of the fact that the crime took place in 1985.
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The pertinent provision of the 1973 Constitution provides:

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"Article IV, Section 20. No person shall be compelled to be a witness against himself. Any person under
investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be
informed of such right. No force, violence, threat, intimidation, or any other means, which vitiates the free
will, shall be used against him. Any confession obtained in violation of this section shall be inadmissible in
evidence." 27
The right to counsel attaches the moment an investigating officer starts to ask questions to elicit information
on the crime from the suspected offender. It is at this point that the law requires the assistance of counsel to
avoid the pernicious practice of extorting forced or coerced admissions or confessions from the person
undergoing interrogation. In other words, "the moment there is a move or even urge of said investigators to
elicit admissions or confessions or even plain information which may appear innocent or innocuous at the
time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but
the waiver shall be made in writing and in the presence of counsel." 28
Lt. Idians team apprehended appellant Maximo in Magallanes, Sorsogon on June 1, 1985 when no warrant
had been issued for his arrest. Immediately thereafter, the arresting peace officers investigated appellant
Maximo. His statement was reduced in writing when they were in Camaligan, Camarines Sur. It was in
Camaligan that CLAO lawyer Ocampo was summoned to assist appellant Maximo in the execution of his
written confession. Atty. Ocampo was not present during the entire duration that accused Maximo was
subjected to custodial investigation as could be inferred from the testimony of Pat. Rodolfo Cario, to wit:

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"Q: And after taking the statement of Velarde, what did you do with the statement of Velarde?
A: It was presented to Atty. Ocampo.
Q: Do you want to tell me that inspite of the fact that he was present when the confession was made you
still present the statement to Atty. Ocampo?
A: In order to let him sign the statement.
Q: And where did Atty. Ocampo sign the confession of Velarde?
A: It was sign [sic] at Naga because he went ahead.
Q: Do you mean to tell me now that after the confession was made, the confession was left to you and after
the confession was brought to his office at the CLAO Office in Naga, is that what you want to tell this court.
A: We went to Naga with Lt. Idian and Velarde.
Q: But it remains a fact that Atty. Ocampo was already at Naga when the statement of Velarde was
presented to him for signature, is that correct?
A: Yes he went ahead to Naga." 29

There was no evidence that Maximo executed a waiver of his right to counsel. In light of these facts, we are
constrained to rule that Maximo Velardes extra-judicial statement is inadmissible in evidence. 30 "An
uncounselled extra-judicial confession without a valid waiver of the right to counsel that is, in writing and
in the presence of counsel is inadmissible in evidence." 31
The respective sworn statements of appellants Tito and Nelson were likewise inadmissible in evidence
because they were executed without the assistance of counsel. Despite the fact that the reason for the
absence of lawyer during the custodial investigation was the scarcity of lawyers in the area, the Court could
not be lenient in this case. The absence or scarcity of lawyers in any given place is not a valid reason for
defying the constitutional mandate on counseled confessions.
Contrary to the ruling of the trial court, the defect in the confessions of Tito and Nelson was not cured by
their signing the extra-judicial statements before Judge Bagalacsa.
Nevertheless, the infirmity of accused-appellants sworn statements did not leave a void in the prosecutions
case. Accused-appellant Maximo repeated the contents of his sworn statement to Romualda Algarin who, in
turn, related these in court. Such declaration to a private person is admissible in evidence against accusedappellant Maximo pursuant to Rule 130, Section 26 of the Rules of Court stating that the "act, declaration or
omission of a party as to a relevant fact may be given in evidence against him." The trial court, therefore,
correctly gave evidentiary value to Romualdas testimony. In People v. Maqueda, 32 we held:
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"However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa stand on a
different footing. These are not governed by the exclusionary rules under the Bill of Rights. Maqueda
voluntarily and freely made them to Prosecutor Zarate not in the course of an investigation, but in
connection with Maquedas plea to be utilized as a state witness; and as to the other admission, it was given
to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring
the rights that exist without governmental grant, that may not be taken away by government and that
government has the duty to protect; or restrictions on the power of the government found not in particular
specific types of action prohibited, but in the general principle that keeps alive in the public mind the
doctrine that governmental power is not unlimited. They are the fundamental safeguards against
aggressions of arbitrary power, or state tyranny and abuse of authority. In laying down the principles of the
government and fundamental liberties of the people, the Constitution did not govern the relationships
between individuals.
"Accordingly, Maquedas admissions to Ray Dean Salvosa, a private party, are admissible in evidence against
the former under Section 26, Rule 130 of the Rules of Court. In Aballe v. People (183 SCRA 196 [1990]),
this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be
given in evidence against him and any person, otherwise competent to testify as a witness, who heard the
confession, is competent to testify as to the substance of what he heard if he heard and understood it. The
said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy,
that rule applies to oral extrajudicial admission." (Emphasis supplied.) 33
And in the recent case of People v. Andan 34 the Court reiterated the doctrine enunciated in the Maqueda
case. In Andan, the Court said that "when the accused talked with the mayor as confidant and not as a law
enforcement officer, his uncounselled confession did not violate his constitutional rights. Constitutional
procedures on custodial investigation do not apply to a spontaneous statement, not elicited through
questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having
committed the crime." Of course, Accused-appellant Maximo attempted to discredit Romualdas credibility as
a witness when he swore that he could not have been in Camaligan on June 6, 1985 because since June 4,
1985 until some three weeks later, he was detained at the Libmanan jail. 35 The trial court correctly
disregarded this self-serving uncorroborated assertion.
The defense failed to attribute any ill-motive on the part of Romualda for testifying on accused-appellant
Maximos admission and therefore the presumption that in so testifying, she was impelled by no other
reason than to tell the truth, stands. The fact that she is related to two of the victims did not render her
testimony incredible. Relationship per se is not proof of prejudice. 36 She might have been mistaken as to
the date when she talked with accused-appellant Maximo while he was detained considering the more than
three-year gap between June 1985 and September to October 1988 when Romualda testified. However, it is
not necessary that the witness should be able to fix accurately the date of the conversation in which the
admission was made. What is important is that the witness is able to state the substance of the conversation
or declaration. 37

Romualdas testimony on accused-appellant Maximos admission sealed not only the latters fate but also
that of appellants Tito and Nelson. The rule that an extrajudicial confession is binding only upon the
confessant and is not admissible against his co-accused because the latter has no opportunity to crossexamine the confessant and therefore, as against him, the confession is hearsay, 38 is not applicable here.
What is involved here is an admission, not a confession. Wharton distinguished these terms as follows:
jgc:chanroble s.com.ph

"A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime
charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue
and tending, in connection with proof of other facts, to prove his guilt. In other words, an admission is
something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself
is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt." 39
Appellants Tito and Nelson were afforded the opportunity to cross-examine witness Romualda on accusedappellant Maximos declaration. They could have questioned its veracity by presenting evidence in support of
their defenses of denial and alibi so they could put to test Romualdas credibility. Having failed to do so,
Romualdas testimony, which the trial court correctly considered as credible, stands unscathed.
Romualdas testimony on the substance of accused-appellant Maximos admission standing alone, may not
be the basis for conviction of the appellants. However, such testimony, taken with circumstances duly
established by the prosecution, point unerringly to accused-appellants culpability. These circumstances are:
(1) accused-appellants and the victims were all residents of Barcelonita, Cabusao, Camarines Sur, a small
barangay where everyone knew everybody; (2) accused-appellants Tito and Nelson helped in the stores of
the sisters Maria and Romualda a week before the incident; (3) Romualda saw the three accused-appellants
as they boarded Marias jeepney during its last palay delivery to Libmanan; (4) Gerardo Atienza saw
accused-appellant Maximo with Marias group during the jeepneys second delivery of palay; (5) Atienza saw
accused-appellant Maximo riding in Marias jeepney after the last delivery; (6) after the commission of the
crime, Accused-appellants Tito and Nelson no longer went to the store of Romualda; (7) accused-appellants
never attended the wake of the victims, and (8) accused-appellant Maximo fled to Manila.
chanroble s.com : law library

These circumstances form an unbroken chain, which, by themselves, lead to a fair and reasonable
conclusion that accused-appellants were the culprits in the robbery with homicide. 40 Under the law,
circumstantial evidence is sufficient basis for conviction as long as: (1) there is more than one circumstance;
(2) the facts from which the inferences are derived are proved, and (3) the combination of all the
circumstances is such as to produce conviction beyond reasonable doubt. 41 These requisites were present
in this case.
Accused-appellants diverse courses of action after the commission of the crime, with accused-appellant
Maximo going to Manila and accused-appellants Tito and Nelson staying in Barcelonita, do not negate their
guilt. As regards accused-appellant Maximo, his flight to Manila and to Magallanes, Sorsogon with no
plausible explanation therefor is a clear indication of guilt. 42 With respect to accused-appellants Tito and
Nelson, their decision to stay in Barcelonita did not mean that they were not equally guilty as accusedappellant Maximo. As this Court once said:
jgc:chanroble s.com.ph

"Accused-appellant argues that had he participated in the crime, his natural reaction would have been to
flee. We do not agree. Each culprit behaves differently in externalizing and manifesting his guilt. Others may
escape or flee which circumstance is strongly indicative of guilt, while others may remain in the same
vicinity so as to create a semblance of normalcy, careful not to arouse suspicion in the community." 43
Conspiracy may be inferred from the acts of accused-appellants before, during and after the commission of
the crime, which indicate a joint purpose, concerted action and concurrence of sentiments. 44 Whenever
homicide is committed as a consequence or on the occasion of the robbery, all those who took part as
principals in the conspiracy are also guilty as principals in the special complex crime of robbery with
homicide although they did not actually take part in the killing, unless there is proof that they tried to
prevent the crime. 45 There is no evidence that any of the accused-appellants desisted from the malevolent
intent of the others to kill the victims during the robbery. As such, they shall equally bear the responsibility
for the resulting crime.
Treachery was not alleged in the information but the suddenness of the assault upon Hegino and Maria from
behind was proven beyond reasonable doubt. As such, treachery may be appreciated as a generic
aggravating circumstance. 46 As regards seven-year-old John, even if the manner by which he was attacked
was not shown, treachery may be deemed to have attended his killing. Treachery exists when an adult
person illegally attacks a child of tender years and causes his death. 47

The crime committed is the special complex crime of robbery with homicide defined and penalized in Article
294 of the Revised Penal Code. The trial court correctly considered the crime as robbery with homicide and
not "robbery with triple homicide" as charged in the information. The term "homicide" in Article 294(1) is
used in its generic sense, embracing not only the act which results in death but also all other acts producing
anything short of death. 48 Neither is the nature of the offense altered by the number of killings in
connection with the robbery. 49 The multiplicity of victims slain on the occasion of the robbery is only
appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the
standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that
robbery with multiple killings would be. 50
Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by reclusion perpetua
to death. By the presence of two aggravating circumstances, namely, treachery and multiplicity of slain
victims, the proper penalty should be death in view of Article 63 (1) of the same Code. 51 However,
considering that when this case happened, the imposition of the death penalty was proscribed, the proper
imposable penalty was reclusion perpetua. The heinousness of the crime they committed
notwithstanding, Accused-appellants may not be deprived of such favorable factor in their case.
The Solicitor Generals plea for modification of the penalty in accordance with Republic Act No. 7659 which
"has already expressly converted reclusion perpetua into a divisible penalty" and on account of the decision
in People v. Lucas, 52 is untenable. It must be stressed that the Lucas ruling has been reconsidered and,
accordingly, the Court has held:
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"After deliberating on the motion and re-examining the legislative history of R.A. No. 7659, the Court
concludes that although Section 17 of the R.A. No. 7659 has fixed the duration of reclusion perpetua from
twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its
original classification as an indivisible penalty. It shall then remain as an indivisible penalty." 53
The trial court failed to award the heirs of Maria Abendao the amount of twenty three thousand
(P23,000.00) pesos in reimbursement of the stolen cash, ring and wristwatch and the expenses amounting
to twenty thousand (P20,000.00) pesos for her wake and that of her son, which were duly proved. 54 The
heirs are entitled to those amounts as reparation of the damage caused by Accused-Appellants. They shall
also be liable for exemplary damages in view of the presence of two aggravating circumstances in the
commission of the crime. 55
WHEREFORE, the Court AFFIRMS with MODIFICATION the decision of the trial court. The Court renders
judgment finding accused-appellants Tito Zuela y Morandarte, Maximo Velarde y de los Reyes, and Nelson
Garcia y Temporas guilty beyond reasonable doubt of robbery with homicide, defined and penalized under
Article 294 (1) of the Revised Penal Code, and sentences each of them to reclusion perpetua with all its
accessory penalties and to pay civil indemnity of one hundred thousand (P100,000.00) pesos to the heirs of
Maria Abendao and John Abendao and fifty thousand (P50,000.00) pesos to the heirs of Hegino
Hernandez, Jr.
In addition, the Court sentences each of the accused-appellants solidarily to pay the additional amounts of
forty three thousand (P43,000.00) pesos as reimbursement of damages to the heirs of Maria Abendao, and
fifty thousand (P50,000.00) pesos as exemplary damages to the heirs of each of the three (3) victims.
chanroble s.com : virtual law library

With costs.

[G.R. NO. 157977 : February 27, 2006]

EDUARDO TOLENTINO RODRIGUEZ and IMELDA GENER RODRIGUEZ, Petitioners, v. THE

HONORABLE PRESIDING JUDGE OF THE REGIONAL TRIAL COURT OF MANILA - BRANCH 17,
GOVERNMENT OF THE UNITED STATES OF AMERICA, represented by the Philippine Department of
Justice, and DIRECTOR OF NATIONAL BUREAU OF INVESTIGATION,Respondents.
DECISION
QUISUMBING, J.:
Before us is a special civil action for certiorari and prohibition directed against the Orders dated May 7,
20031 and May 9, 20032 of the Regional Trial Court of Manila, Branch 17 in Case No. 01-190375, which
cancelled the bail of petitioners and denied their motion for reconsideration, respectively.
The case stemmed from the petition for extradition filed on March 12, 2001 by the Government of the
United States of America (US government) through the Department of Justice (DOJ) against the petitioners.
After their arrest, petitioners applied for bail which the trial court granted on September 25, 2001. The bail
was set for one million pesos for each. Petitioners then posted cash bonds. The US government moved for
reconsideration of the grant of bail, but the motion was denied by the trial court. Unsatisfied, the US
government filed a petition for certiorari with this Court, entitledGovernment of the United States of
America, represented by the Philippine Department of Justice v. Hon. Rodolfo A. Ponferrada, etc., et al., and
docketed as G.R. No. 151456.
Thereafter, we directed the trial court to resolve the matter of bail which, according to its November 28,
2001 Order,3 shall be subject to whatever ruling that this Court may have in the similar case of Mark
Jimenez entitled Government of the United States of America v. Purganan,4 docketed as G.R No. 148571. In
compliance with our directive, the trial court, without prior notice and hearing, cancelled the cash bond of
the petitioners and ordered the issuance of a warrant of arrest, 5 to wit:
Accordingly, following the En Banc Decision of the Supreme Court in G.R. No. 148571 dated September 24,
2002 to the effect that extraditees are not entitled to bail' while the extradition proceedings are pending
(page 1, En Banc Decision in G.R. No. 148571), let a warrant of arrest issue against the herein
respondents sans any bail, for implementation by the Sheriff or any member of any law enforcement agency
in line with Section 19 of Presidential Decree No. 1069.
IT IS SO ORDERED.
Petitioners filed a very urgent motion for the reconsideration of the cancellation of their bail. The motion was
heard and denied on May 9, 2003.6
Having no alternative remedy, petitioners filed the present petition on the following grounds:
I
'THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION TANTAMOUNT
TO LACK OR EXCESS OF JURISDICTION IN CANCELLING THE BAIL OF HEREIN PETITIONERS WITHOUT
PRIOR NOTICE AND HEARING OF ITS CANCELLATION.

II

'THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION AMOUNTING
TO LACK OR EXCESS OF JURISDICTION IN NOT CONSIDERING CERTAIN SPECIAL CIRCUMSTANCES
ATTENDANT TO THE PRESENT CASE, AS AN EXCEPTION TO THE GENERAL RULE OF "NO-BAIL" IN
EXTRADITION CASES WHEN PETITIONERS' CASH BAIL WAS UNILATERALLY CANCELLED.
III
'THE RESPONDENT JUDGE COMMITTED SUCH SERIOUS AND GRAVE ABUSE OF DISCRETION TANTAMOUNT
TO LACK OR EXCESS OF JURISDICTION IN ISSUING THE WARRANT OF ARREST WITHOUT CONSIDERING
THE HEREIN PETITIONERS' SPECIAL CIRCUMSTANCE OF VOLUNTARY EXTRADITION PRIOR TO CANCELLING
THEIR CASH BAIL.7
Once again we face the controversial matter of bail in extradition cases. We are asked to resolve twin issues:
First, in an extradition case, is prior notice and hearing required before bail is cancelled? Second, what
constitutes a "special circumstance" to be exempt from the no-bail rule in extradition cases?
cralawlibrary

Petitioners assert that their bail cannot be cancelled without due process of law. By way of analogy, they
point to Rule 114, Section 218 of the Rules of Court where the surety or bonding company is required to be
notified and allowed to show cause why the bail bond should not be cancelled. They say that if the rules
grant this opportunity to surety and bonding companies, the more reason then that in an extradition case
the same should be afforded.
Petitioners also contend that this Court's directive in G.R. No. 151456 did not in any way authorize the
respondent court to cancel their bail. Petitioners aver that respondent court should have first determined the
facts to evaluate if petitioners were entitled to continuance of their bail, e.g. their willingness to go on
voluntary extradition, which respondent court should have considered a special circumstance.
Respondents, for their part, argue that prior notice and hearing are not required to cancel petitioners' bail,
and the issuance of a warrant of arrest ex parte against an extraditee is not a violation of the due process
clause. Further, respondents maintain that prior notice and hearing would defeat the purpose of the arrest
warrant since it could give warning that respondents would be arrested and even encourage them to flee.
Besides, even granting that prior notice and hearing are indeed required, respondents contend that
petitioners had been effectively given prior notice and opportunity to be heard, because the trial court's
order clearly stated that the matter of bail shall be subject to whatever ruling the Supreme Court may
render in the similar extradition case of Government of the United States of America v.
Purganan.9 Petitioners did not contest the aforementioned order. Respondents declare that petitioners were
likewise notified of this Court's directives to the trial court to resolve the matter of their bail.
More significantly, petitioners claim that their bail should not have been cancelled since their situation falls
within the exception to the general rule of no-bail. They allege that their continuous offer for voluntary
extradition is a special circumstance that should be considered in determining that their temporary liberty
while on bail be allowed to continue. They cite that petitioner Eduardo is in fact already in the United States
attending the trial. They also have not taken flight as fugitives. Besides, according to petitioners, the State is
more than assured they would not flee because their passports were already confiscated and there is an
existing hold-departure order against them. Moreover, petitioners assert, they are not a danger to the
community.
Respondents counter that petitioner Imelda Gener Rodriguez did not show her good faith by her continued
refusal to appear before the respondent court. Further, the reasons of petitioners do not qualify as
compelling or special circumstances. Moreover, the special circumstance of voluntary surrender of petitioner
Eduardo is separate and distinct from petitioner Imelda's.
Additionally, respondents maintain that the ruling in the case of Atong Ang 10 has no applicability in the
instant case. Ang's bail was allowed because the English translation of a testimony needed to determine
probable cause in Ang's case would take time. This special circumstance is not attendant in this case.

The issue of prior notice and hearing in extradition cases is not new. In Secretary of Justice v. Lantion,11 by
a vote of nine to six, we initially ruled that notice and hearing should be afforded the extraditee even when a
possible extradition is still being evaluated.12 The Court, deliberating on a motion for reconsideration also by
a vote of nine to six, qualified and declared that prospective extraditees are entitled to notice and hearing
only when the case is filed in court and not during the process of evaluation. 13
In the later case of Purganan, eight justices concurred that a possible extraditee is not entitled to notice and
hearing before the issuance of a warrant of arrest while six others dissented.
Now, we are confronted with the question of whether a prospective extraditee is entitled to notice and
hearing before the cancellation of his or her bail.
The issue has become moot and academic insofar as petitioner Eduardo Rodriguez is concerned. He is now
in the USA facing the charges against him. But co-petitioner Imelda Gener Rodriguez is here and stands on a
different footing. We agree that her bail should be restored.
In Purganan, we said that a prospective extraditee is not entitled to notice and hearing before the issuance
of a warrant of arrest,14 because notifying him before his arrest only tips him of his pending arrest. But this
is for cases pending the issuance of a warrant of arrest, not in a cancellation of a bail that had been issued
after determination that the extraditee is a no-flight risk. The policy is that a prospective extraditee is
arrested and detained to avoid his flight from justice. 15 On the extraditee lies the burden of showing that he
will not flee once bail is granted.16 If after his arrest and if the trial court finds that he is no flight risk, it
grants him bail. The grant of the bail, presupposes that the co-petitioner has already presented evidence to
prove her right to be on bail, that she is no flight risk, and the trial court had already exercised its sound
discretion and had already determined that under the Constitution and laws in force, co-petitioner is entitled
to provisional release.
Under these premises, and with the trial court's knowledge that in this case, co-petitioner has offered to go
on voluntary extradition; that she and her husband had posted a cash bond of P1 million each; that her
husband had already gone on voluntary extradition and is presently in the USA undergoing trial; that the
passport of co-petitioner is already in the possession of the authorities; that she never attempted to flee;
that there is an existing hold-departure order against her; and that she is now in her sixties, sickly and
under medical treatment, we believe that the benefits of continued temporary liberty on bail should not be
revoked and their grant of bail should not be cancelled, without the co-petitioner being given notice and
without her being heard why her temporary liberty should not be discontinued.
We emphasize that bail may be granted to a possible extraditee only upon a clear and convincing showing
(1) that he will not be a flight risk or a danger to the community, and (2) that there exist special,
humanitarian and compelling circumstances.17
The trial court's immediate cancellation of the bail of petitioners is contrary to our ruling in Purganan, and it
had misread and misapplied our directive therein.
Now, was the order to issue warrant of arrest against petitioners and to cancel the bail of extraditees a
grave abuse of discretion of the trial court?
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Grave abuse of discretion is capricious or whimsical exercise of judgment that is patent and gross as to
amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law. 18 In our view,
the cancellation of co-petitioner's bail, without prior notice and hearing, could be considered a violation of
co-petitioner's right to due process tantamount to grave abuse of discretion.
Finally, considering that remanding the case to the court a quo will only delay the final resolution of the case
as in all probability it would only end up with us again, 19 we will decide if Imelda's bail was validly cancelled.
In Purganan, we held also that the grounds used by the highest court in the requesting state for the grant of
bail may be considered, under the principle of reciprocity.20

Considering that she has not been shown to be a flight risk nor a danger to the community, she is entitled to
notice and hearing before her bail could be cancelled. Based on the record, we find that, absent prior notice
and hearing, the bail's cancellation was in violation of her right to due process.
WHEREFORE, the instant petition is GRANTED IN PART. The Orders dated May 7, 2003 and May 9, 2003 of
the Regional Trial Court of Manila, Branch 17 in Case No. 01-190375 are REVERSED and SET ASIDE, as far
as petitioner IMELDA GENER RODRIGUEZ is concerned. We hereby (1) declare IMELDA GENER RODRIGUEZ
entitled to bail, (2) order her cancelled bail restored, and (3) order the warrant for her arrest revoked.

[A.M. No. 2205-MJ. November 19, 1981.]

BUENAVENTURA B. SUNGA, Complainant, v. JUDGE CONCEPCION SALUD, Municipal Circuit Court,

Amulong-Iguig, Cagayan, Respondent.
SYNOPSIS
Respondent judge was charged with grave abuse of authority or ignorance of the law for imposing upon the
complainant, the accused in a criminal case for unlawful ejectment, a bail bond in the amount of P18,000.00
where the imposable penalty for violation of P.D. No. 583 is only prision mayor or a fine ranging from
P5,000.00 P10,000.00 or both. In his comment, he maintained that such sum could not be considered
excessive. Executive Judge Bonifacio Cacdac, Jr. of the CFI of Cagayan, Branch V, to whom the matter was
referred for investigation and report, recommended the dismissal of the complaint, based on the
complainants lack of interest in pursuing the case and for lack of any justification for the charge. The Office
of the Court Administrator submitted to the Court its report recommending that respondent Judge be found
guilty of grave abuse of authority for which he should be fined equivalent to one month salary with a
warning that a repetition of the offense will be dealt with more severely.
The Supreme Court, considering the constitutional prohibition against excessive bail and decided cases
explicitly recognizing the right to bail which should not be rendered nugatory by requiring a sum that is
excessive, imposed upon the respondent a more severe penalty of fine equivalent to two months salary not
chargeable to his leave credits with the warning that a repetition of a failure to apply constitutional
provisions would result in a much more severe penalty.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT TO BAIL; FACTORS TO BE CONSIDERED IN FIXING THE
AMOUNT OF BAIL. The following factors are to be considered in the fixing of the bail bond in criminal
cases. 1. Ability of the accused to give bail; 2. Nature of the offense; 3. Penalty for the offense charged; 4.
Character and reputation of the accused; 5. Health of the accused; 6. Character and strength of the
evidence; 7. Probability of the accused appearing in trial; 8. Forfeiture of other bonds; 9. Whether the
accused was a fugitive from justice when arrested; and 10. If the accused is under bond for appearance at
trial in other cases.
2. ID.; ID.; ID.; EXCESSIVE BAIL PROHIBITED. Where the right to bail exists, it should not be rendered
nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If
there were no such prohibition, the right to bail becomes meaningless.
3. ID.; ID.; ID.; ID.; BAIL TO ASSURE ACCUSEDS PRESENCE AT TRIAL. The sole permissible function of
money bail is to assure the accuseds presence at trial, and bail set at a higher figure than an amount
reasonably calculated to fulfill this purpose is excessive.
4. ID.; SUPREME COURT; ADMINISTRATIVE SUPERVISION OVER LOWER COURTS; ADMINISTRATIVE
COMPLAINTS AGAINST JUDGES; DISMISSAL THEREOF DOES NOT AUTOMATICALLY FOLLOW WITH
COMPLAINANTS LACK OF INTEREST TO PROSECUTE THE CASE. The mere assertion of lack of interest to
prosecute an administrative complaint against a judge is not automatically followed by the matter being
considered closed.
5. ID.; ID.; ID.; ID.; FIXING OF EXCESSIVE BAIL, A GRAVE ABUSE OF AUTHORITY; CASE AT BAR. For
fixing bail of Pl8,000.00 for the violation of P.D. No. 583 which only imposes a penalty of prision mayor or a
fine ranging from P5,000.00 P10,000.00, a judge is guilty of grave abuse of authority subject to a fine
equivalent to two months salary, not chargeable to his leave credits with a warning that a repetition of his
failure to apply constitutional provisions would result in a much more severe penalty.
RESOLUTION
FERNANDO, J.:

It was the imposition of a bail bond in the amount of P18,000.00 for the alleged violation of Presidential
Decree No. 583, the penalty for which is prision mayor or a fine ranging from P5,000.00 to P10,000.00 or
both, that led to a verified letter-complaint from Buenaventura B. Sunga for grave abuse of authority or, at
the very least, ignorance of the law. Complainant was accused in a criminal case for unlawful ejectment.
Upon being required to comment, respondent Judge denied such accusation and maintained that considering
the penalty of prision mayor, the bail bond which he fixed at P18,000.00 could not be considered excessive.
The matter was then referred to Executive Judge Bonifacio Cacdac, Jr. of the Court of First Instance of
Cagayan, Branch V at Tuguegarao, for investigation, report and recommendation. He conducted such
investigation. In his report, based primarily on a motion to dismiss filed by the complainant himself
manifesting lack of interest, he recommended the dismissal of the complaint. He likewise could not find any
justification for the charge of excessive bail. Court Administrator Justice Lorenzo Relova, agreeing with the
recommendation of Deputy Court Administrator Romeo Mendoza, submitted to the Court his report "that
respondent Judge Concepcion Salud be found guilty of grave abuse of authority for which he should be fined
equivalent to one (1) month salary, not chargeable to his leave credits and warned that a repetition of such
infraction in the future will be dealt with more severely." 1
This Court pursuant to the mandate that excessive bail should not be required feels that a more severe
penalty should be imposed. 2 The members of the Judiciary were reminded in Circular No. 1, 3 dealing with
the fixing of the bail bond in criminal cases, of the authoritative doctrine in Villaseor v. Abao. 4 The
following factors are to be considered: "1. Ability of the accused to give bail; 2. Nature of the offense; 3.
Penalty for the offense charged; 4. Character and reputation of the accused; 5. Health of the accused; 6.
Character and strength of the evidence; 7. Probability of the accused appearing in trial; 8. Forfeiture of
other bonds; 9. Whether the accused was a fugitive from justice when arrested; and 10. If the accused is
under bond for appearance at trial in other cases." 5 This Court, in the later case of De la Camara v. Enage 6
was equally explicit on the matter. Thus: "Where, however, the right to bail exists, it should not be rendered
nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If
there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if
no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the
United States Constitution limits itself to a prohibition against excessive bail. As construed in the latest
American decision, `the sole permissible function of money bail is to assure the accuseds presence at trial,
and declared that "bail set at a higher figure than an amount reasonably calculated to fulfill this purpose is
excessive under the Eight Amendment." 7 It should be stressed, contrary to the thinking of Executive Judge
Cacdac, that the mere assertion of lack of interest to prosecute is not automatically followed by the matter
being considered closed.
chanroble s.com.ph : virtual law library

WHEREFORE, respondent Judge is fined equivalent to two (2) months salary, not chargeable to his leave
credits. He is warned that a repetition of a failure to apply constitutional provisions would result in a much
more severe penalty. Let a copy of this resolution be spread on his record.

[G.R. No. 148194. April 12, 2002.]

WILLY TAN y CHUA, Petitioner, v. PEOPLE OF THE PHILIPPINES, Respondent.

DECISION
VITUG, J.:
On 12 December 1996, petitioner Willy Tan was found guilty of bigamy by the Regional Trial Court, Branch
75, of San Mateo, Rizal. He was sentenced to suffer a prison term of prision correccional in its medium
period ranging from two (2) years, four (4) months, and one (1) day, to four (4) years and two (2) months.
On 23 December 1996, petitioner applied for probation. On 8 January 1997, the application was granted by
the trial court but the release order was withheld in view of the filing by the prosecution, on 21 January
1997, of a motion for modification of the penalty. The prosecution pointed out that the penalty for bigamy
under Article 349 of the Revised Penal Code was prision mayor and the imposable penalty, absent any
mitigating nor aggravating circumstance, should be the medium period of prision mayor, or from eight (8)
years and one (1) day to ten (10) years. Thus, the prosecution argued, petitioner was not eligible for
probation.
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The trial court denied the motion of the prosecution for having been filed out of time since the decision
sought to be modified had already attained finality. Indeed, petitioner had meanwhile applied for probation.
Upon motion of the prosecution, however, the trial court reconsidered its order and rendered an amended
decision, promulgated on 10 July 1998, concluding thusly:
jgc:chanrobles.com .ph

"WHEREFORE, premises considered, judgment is hereby rendered finding accused Willy Tan GUILTY beyond
reasonable doubt of the crime of Bigamy and applying the Indeterminate Sentence Law, is hereby sentenced
to suffer a minimum prison term of prision [correccional] TWO (2) YEARS, FOUR (4) MONTHS AND ONE (1)
DAY to a maximum prison term of EIGHT (8) YEARS AND ONE (1) DAY." 1
On 13 July 1998, petitioner filed a notice of appeal with the trial court and elevated the case to the Court of
Appeals, contending that
"THE LOWER COURT ERRED IN AMENDING THE FIRST DECISION INCREASING THE PENALTY AFTER THE
SAME HAD ALREADY BECOME FINAL AND EXECUTORY." 2
The Court of Appeals, in a decision, dated 18 August 2000, dismissed petitioners appeal on the ground that
petitioner raised a pure question of law. Citing Article VIII, Section 5(2)(e), of the Constitution, the appellate
court explained that jurisdiction over the case was vested exclusively in the Supreme Court and that, in
accordance with Rule 122, Section 3(e), of the Rules of Criminal Procedure, the appeal should have been
brought up by way of a petition for review on certiorari with this Court and not by merely filing a notice of
appeal before the trial court.
Petitioner filed a motion for reconsideration which, on 18 May 2001, was denied by the appellate court. The
petition for review on certiorari before this Court raised the following issues:
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"I. THE COURT OF APPEALS GRAVELY ERRED IN APPLYING SECTION 2, RULE 50 ON DISMISSAL OF
IMPROPER APPEAL TO THE COURT OF APPEALS AS THE SAID SECTION REFERS TO AN APPEAL UNDER RULE
41 IN ORDINARY CIVIL ACTION BUT NOT TO AN APPEAL IN CRIMINAL CASES WHICH IS GOVERNED BY
RULE 122 OF THE REVISED RULES ON CRIMINAL PROCEDURE.
"II. THE COURT OF APPEALS ERRED IN HOLDING THAT THE SUPREME COURT HAS EXCLUSIVE APPELLATE
JURISDICTION ON PURE QUESTIONS OF LAW.
"III. THE COURT OF APPEALS GRAVELY ERRED IN HOLDING THAT BECAUSE THE APPEAL RAISED PURE
QUESTIONS OF LAW, IT IS WITHOUT JURISDICTION TO RESOLVE THE ISSUE RAISED IN THE APPEAL.
"IV. THE COURT OF APPEALS GRAVELY ERRED IN DISMISSING THE APPEAL OUTRIGHT INSTEAD OF
DECLARING THE AMENDED DECISION VOID FOR UTTER WANT OF JURISDICTION.
"V. THE COURT OF APPEALS ERRED IN HOLDING THAT RULE 65 IS THE PROPER REMEDY TO RAISE THE
ISSUE OF JURISDICTION AND IF SO IN NOT TREATING THE APPEAL AS A SPECIAL CIVIL ACTION FOR
CERTIORARI." 3

In all criminal prosecutions, the accused shall have the right to appeal in the manner prescribed by law. 4
While this right is statutory, once it is granted by law, however, its suppression would be a violation of due
process, itself a right guaranteed by the Constitution. 5 Section 3(a), Rule 122 of the Rules of Criminal
Procedure states:
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"Section 3. How appeal is taken.

(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse
party. (Emphasis supplied).
The above rule is plain and unambiguous the remedy of ordinary appeal by notice of appeal, although not
necessarily preclusive of other remedies provided for by the rules, is open and available to petitioner.
The notice of appeal was timely filed by petitioner on 13 July 1998, three days after the questioned decision
was promulgated. 6 It was a remedy that the law allowed him to avail himself of, and it threw the whole
case effectively open for review on both questions of law and of fact whether or not raised by the parties.

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1ibrary

Neither the Constitution nor the Rules of Criminal Procedure exclusively vests in the Supreme Court the
power to hear cases on appeal in which only an error of law is involved. 7 Indeed, the Court of Appeals,
under Rule 42 and 44 of the Rules of Civil Procedure, is authorized to determine "errors of fact, of law, or
both." 8 These rules are expressly adopted to apply to appeals in criminal cases, 9 and they do not thereby
divest the Supreme Court of its ultimate jurisdiction over such questions.
Anent the argument that petitioner should have filed a petition for certiorari under Rule 65, it might be
pointed out that this remedy can only be resorted to when there is no appeal, or any plain, speedy, and
adequate remedy in the ordinary course of law. 10 Appeal, being a remedy still available to petitioner, a
petition for certiorari would have been premature.
In fine, petitioner had taken an appropriate legal step in filing a notice of appeal with the trial court.
Ordinarily, the Court should have the case remanded to the Court of Appeals for further proceedings. The
clear impingement upon petitioners basic right against double jeopardy, 11 however, should here warrant
the exercise of the prerogative by this Court to relax the stringent application of the rules on the matter.
When the trial court increased the penalty on petitioner for his crime of bigamy after it had already
pronounced judgment and on which basis he then, in fact, applied for probation, the previous verdict could
only be deemed to have lapsed into finality.
Section 7, Rule 120, of the Rules on Criminal Procedure that states
"Sec. 7. Modification of judgment. A judgment of conviction may, upon motion of the accused, be
modified or set aside before it becomes final or before appeal is perfected. Except where the death penalty
is imposed, a judgment becomes final after the lapse of the period for perfecting an appeal, or when the
sentence has been partially or totally satisfied or served, or when the accused has waived in writing his right
to appeal, or has applied for probation"
implements a substantive provision of the Probation Law which enunciates that the mere filing of an
application for probation forecloses the right to appeal.
"SEC. 4. Grant of Probation. Subject to the provisions of this Decree, the trial court may, after it shall
have convicted and sentenced a defendant, and upon application by said defendant within the period for
perfecting an appeal, suspend the execution of the sentence and place the defendant on probation for such
period and upon such terms and conditions as it may deem best: Provided, That no application for probation
shall be entertained or granted if the defendant has perfected the appeal from the judgment or conviction.
"Probation may be granted whether the sentence imposes a term of imprisonment or a fine only. An
application for probation shall be filed with the trial court. The filing of the application shall be deemed a
waiver of the right to appeal.
"An order granting or denying probation shall not be appealable. (As amended by PD 1257, and by PD 1990,
Oct. 5, 1985.)" 12

Such a waiver amounts to a voluntary compliance with the decision and writes finis to the jurisdiction of the
trial court over the judgment. 13 There is no principle better settled, or of more universal application, than
that no court can reverse or annul, reconsider or amend, its own final decree or judgment. 14 Any attempt
by the court to thereafter alter, amend or modify the same, except in respect to correct clerical errors, would
be unwarranted.
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WHEREFORE, the petition is given due course. The assailed amendatory judgment of the trial court is SET
ASIDE and its decision of 12 December 1996 is REINSTATED. No costs.
SO ORDERED.
Davide, Jr., C.J., Melo, Puno, Kapunan, Ynares-Santiago, Sandoval-Gutierrez and Carpio, JJ., concur.
Panganiban, J., concurs in the result.
Mendoza, J., dissents.
Bellosillo, Quisumbing, and De Leon, Jr., JJ., join in the dissent of J. Mendoza.
Separate Opinions
MENDOZA, J., dissenting:

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The reasons for my disagreement with the majority will be spelled out in detail, but in brief they are as
follows: (1) The case before the Court of Appeals did not involve an error of judgment but an alleged error
of jurisdiction and, therefore, appeal was not the appropriate remedy to bring the matter to that court. (2)
Even assuming the case involved an error of judgment and therefore appeal was the appropriate remedy
open to petitioner, the appeal should have been brought before this Court and not the Court of Appeals, and
it should not be by mere notice of appeal but by a petition for review. (3) The correct remedy is certiorari.
(4) Even equity will not excuse petitioners failure to observe the rules for seeking a review, and this Court is
not justified in deciding the issue which petitioner should have first brought before the Court of Appeals.
There is no dispute as to the following facts.
Petitioner Willy Tan and Mildred Gococo-Tan were married on January 14, 1979. On November 28, 1981,
while their marriage was subsisting, petitioner contracted marriage with Estela G. Infante. On the complaint
of Mildred Gococo-Tan, petitioner and Estela G. Infante were charged with bigamy. The case was filed before
the Regional Trial Court, Branch 75, San Mateo, Rizal, which, on December 12, 1996, found petitioner Willy
Tan guilty of bigamy and sentenced him "to suffer a prison term of prision correccional in its medium period
ranging from two (2) years, four (4) months and one (1) day to four (4) years and two (2) months." The
case against Estela G. Infante, who was at large, was ordered archived without prejudice to its revival upon
her arrest.
On the basis of the penalty imposed on him, petitioner applied for probation on December 23, 1996. His
application was granted by the trial court in its order of January 8, 1997, but release of the order was
withheld in view of the filing on January 21, 1997 by the prosecution of a motion for modification of the
penalty. The prosecution pointed out that the penalty for bigamy prescribed under Art. 349 of the Revised
Penal Code is prision mayor and that the maximum imposable penalty, in the absence of any mitigating or
aggravating circumstances, is the medium period of prision mayor, which is from eight (8) years and one (1)
day to ten (10) years. Petitioner was thus not eligible for probation, it was argued.
On August 5, 1997, the trial court denied the prosecutions motion for having been filed out of time, the
decision sought to be modified having become final when petitioner applied for probation. However, upon
motion of the prosecution, the trial court reconsidered its order and, on April 14, 1998, amended the
dispositive portion of its decision as follows:
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WHEREFORE, premises considered, judgment is hereby rendered finding accused Willy Tan GUILTY beyond
reasonable doubt of the crime of Bigamy and applying the Indeterminate Sentence Law, is hereby sentenced
to suffer a minimum prison term of prision [correccional] of TWO (2) YEARS, FOUR (4) MONTHS AND ONE
(1) DAY to a maximum prison term of EIGHT (8) YEARS AND ONE (1) DAY. 1

The decision, as thus amended, was promulgated on July 10, 1998.

Petitioner appealed to the Court of Appeals by filing a notice of appeal with the trial court on July 13, 1998.
Petitioner contended that
THE LOWER COURT ERRED IN AMENDING THE FIRST DECISION INCREASING THE PENALTY AFTER THE
SAME HAD ALREADY BECOME FINAL AND EXECUTORY. 2
In its decision, dated August 18, 2000, now the subject of this review, the Court of Appeals 3 dismissed for
lack of jurisdiction petitioners appeal on the ground that it raised a pure question of law. Petitioner filed a
motion for reconsideration, but his motion was denied by the Court of Appeals in its resolution of May 18,
2001.
In dismissing petitioners appeal from the amended decision of the Regional Trial Court, the Court of Appeals
held that the appeal raised only a question of law; that, pursuant to Art. VIII, 5(2)(e) of the Constitution,
appellate jurisdiction over the case was vested exclusively in the Supreme Court; and that, in accordance
with Rule 122, 3(e) of the Rules of Criminal Procedure, the appeal should be brought by filing with this
Court a petition for review on certiorari, not by filing a notice of appeal in the trial court.
This is a petition for review on certiorari of the decision of the Court of Appeals.
Rule 122, 3 of the Rules of Criminal Procedure provides:

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How appeal taken.

(a) The appeal to the Regional Trial Court, or to the Court of Appeals in cases decided by the Regional Trial
Court in the exercise of its original jurisdiction, shall be taken by filing a notice of appeal with the court
which rendered the judgment or final order appealed from and by serving a copy thereof upon the adverse
party.
(b) The appeal to the Court of Appeals in cases decided by the Regional Trial Court in the exercise of its
appellate jurisdiction shall be by petition for review under Rule 42.
(c) The appeal to the Supreme Court in cases where the penalty imposed by the Regional Trial Court is
reclusion perpetua or life imprisonment, or where a lesser penalty is imposed but for offenses committed on
the same occasion or which arose out of the same occurrence that gave rise to the more serious offense for
which the penalty of death, reclusion perpetua, or life imprisonment is imposed, shall be by filing a notice of
appeal in accordance with paragraph (a) of this section.
(d) No notice of appeal is necessary in cases where the death penalty is imposed by the Regional Trial Court.
The same shall be automatically reviewed by the Supreme Court as provided in section 10 of this Rule.
(e) Except as provided in the last paragraph of section 13, Rule 124, all other appeals to the Supreme Court
shall be by petition for review on certiorari under Rule 45.
The majority holds that petitioners appeal to the Court of Appeals by mere notice is justified under Rule
122, 3(a) as above quoted. Petitioner argues that Rule 44, 15 in fact allows assignments of errors to be
made concerning questions of law or fact in appeals to the Court of Appeals. The Court thus sustains the
following contention of petitioner:
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. . . Rule 122 governing appeals in criminal cases does not direct as it does in ordinary appeals in civil cases
under Rule 41 which provides that in all cases where only questions of law are raised or involved, the appeal
shall be to the Supreme Court by petition for review on certiorari in accordance with Rule 45.
Under Rule 122(a), the appeal to the Regional Trial Court, or to the Court of Appeals in criminal cases
decided by the Regional Trial Court in the exercise of its original jurisdiction, shall be taken by filing a notice
of appeal with the court which rendered the judgment or final order appealed from and by serving a copy
thereof upon the adverse party unfettered by any restriction on the questions that may be raised on
appeal[.] Section 3(d) Rule 122 of the 1985 Rules on Criminal Procedure transposed to par. (e) cited in the
footnote by the Court of [A]ppeals decision merely provides that "All other appeals to the Supreme Court
shall be by petition for certiorari." As worded in the present rule "Except as provided in the last paragraph of

section 13, Rule 124, all other appeals to the Supreme Court shall be by petition for review
on certiorari under Rule 45."
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It did not direct as it does in Rule 41 that appeal in criminal cases on pure questions of law shall only be to
the Supreme Court. What the rule directs is that when an appeal is to be made to the Supreme Court the
appeal shall be by petition for review.
Rule 41 cannot likewise be applied by analogy in appeals in criminal cases since Rule 41 is not among the
rules that was expressly adopted to apply to appeals in criminal cases. Under Section 18 of Rule 124:
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SEC. 18. Application of certain rules in civil procedure to criminal cases. The provisions of Rules 42, 44 to
46 and 48 to 56 relating to procedure in the Court of Appeals and in the Supreme Court in original and
appealed civil cases shall be applied to criminal cases insofar as they are applicable and not inconsistent with
the provisions of this Rule.
The exclusion of Rule 41 which refers to appeals in civil cases from Rule 122 which refers to appeals in
criminal cases clearly indicates that the modes of appeal in ordinary civil actions is not applicable in criminal
cases. On the other hand, Section 18 of the Rule 122 expressly provides that Rule 44 on procedure in the
Court of Appeals in ordinary appealed cases shall be applied in criminal cases. As will hereafter be shown[,]
Rule 44, like Rules 42 and 43 alternatively allows assignment of errors on questions of fact or of law,
meaning a[n] assignment of error only on pure questions of law are allowable in appeals to the Court of
Appeals. Section 18 clearly connotes that when the rules allow the application of a particular rule in a
particular situation, it does so expressly. Note that Rule 47 on Annulment of Judgments was also excluded.
I respectfully disagree with the majority ruling for the following reasons:

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First. Appeal is not the appropriate remedy because it is not an error of judgment, but an error of
jurisdiction allegedly committed by the trial court, which petitioner was raising in the Court of Appeals. The
question whether the trial court could correct an error in computing the penalty after its decision had
become final was not passed upon by the trial court in deciding the criminal case before it but was
determined by it only as an incident of the case. Indeed, the issue in that case was whether petitioner Willy
Tan y Chua was guilty of bigamy as the trial court found. If petitioner did not agree with his conviction, an
appeal by mere notice to that effect would have been perfectly correct under Rule 122, 3(a).
But the decision of the trial court on this question has never been disputed by petitioner. No error of
judgment had been imputed to the trial court. Rather, what petitioner questioned was the power of the trial
court to amend its decision to correct a mistake it had made in fixing the maximum term of the sentence,
after the decision had become final. This is a question of jurisdiction. There is therefore no basis for applying
Rule 122, 3(a) of the Rules of Criminal Procedure.
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While a question of jurisdiction may be raised on appeal, in the context of this case, this was not possible
because the majoritys premise is precisely that the trial court had lost jurisdiction over the case as its
decision had become final while at the same time saying that appeal was petitioners appropriate remedy.
Nor can it be argued that petitioner could not have appealed until the trial court modified its judgment
because petitioner was not questioning the original decision but only the decision as modified. Amendments
retroact to the date of the original judgment. At any rate, this only shows the absurdity of allowing appeal
when the reason of the majority is that the decision of the trial court could no longer be modified because it
had become final. This brings me to my second point.
Second. Even assuming that appeal was the appropriate remedy, because it was a question of law that
petitioner wanted to raise, the appeal should have been to this Court, not the Court of Appeals, and it should
have been by petition for review on certiorari, not by mere notice of appeal.
Art. VIII, 5(2)(e) of the Constitution provides that the Supreme Court shall have appellate jurisdiction over
"all cases in which only an error or question of law is involved." This jurisdiction of the Supreme Court is
exclusive by reason of 17, par. 4(4) of the Judiciary Act of 1948, which provides:
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SEC. 17. Jurisdiction of the Supreme Court. . . .

The Supreme Court shall further have exclusive jurisdiction to review, revise, reverse, modify or affirm
on certiorari as the law or rules of court may provide, final judgments and decrees of inferior courts as
herein provided, in

(4) All other cases in which only errors or questions of law are involved: Provided, however, That if, in
addition to constitutional, tax or jurisdictional questions, the cases mentioned in the three next preceding
paragraphs also involve questions of fact or mixed questions of fact and law, the aggrieved party shall
appeal to the Court of Appeals; and the final judgment or decision of the latter may be reviewed, revised,
reversed, modified or affirmed by the Supreme Court on writ of certiorari; . . . (Emphasis added)
Art. VIII, 5(2)(e) of the Constitution provides that the appeal shall be "by certiorari as the law or the rules
of court may provide." Accordingly, Rule 122, 3(d) states that "all other appeals to the Supreme Court [in
criminal cases other than those involving the imposition of reclusion perpetua or life imprisonment or death]
shall be by a petition for review on certiorari under Rule 45." As petitioner simply filed a mere notice of
appeal with the trial court, his appeal was correctly dismissed by the Court of Appeals.
The majority contends that the Court of Appeals has appellate jurisdiction over cases in which the only
question is a question of law that may be brought by mere notice of appeal filed with the trial court because
of Rule 42, 2 and Rule 44, 15 of the 1997 Rules of Civil Procedure, which are made applicable to criminal
cases by Rule 124, 18 4 of the Rules of Criminal Procedure. These Rules state:
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RULE 42, 2. Form and contents. The petition shall be filed in seven (7) legible copies, with the original
copy intended for the court being indicated as such by the petitioner, and shall (a) state the full names of
the parties to the case, without impleading the lower courts or judges thereof either as petitioners or
respondents; (b) indicate the specific material dates showing that it was filed on time; (c) set forth concisely
a statement of the matters involved, the issues raised, the specification of errors of fact or law, or both,
allegedly committed by the Regional Trial Court, and the reasons or arguments relied upon for the allowance
of the appeal; (d) be accompanied by clearly legible duplicate originals or true copies of the judgments or
final orders of both lower courts, certified correct by the clerk of court of the Regional Trial Court, the
requisite number of plain copies thereof and of the pleadings and other material portions of the record as
would support the allegations of the petition . . . (Emphasis added)
RULE 44, 15. Questions that may be raised on appeal. Whether or not the appellant has filed a motion
for new trial in the court below, he may include in his assignment of errors any question of law or fact that
has been raised in the court below and which is within the issues framed by the parties. (Emphasis added)
Mixed questions of fact and law may be raised in the Court of Appeals but not pure questions of law. This is
clear from 17, par. 4(4) of the Judiciary Act of 1948 as quoted above. The exclusive jurisdiction of this
Court over appeals in which only errors or questions of law are involved is affirmed in B.P. Blg. 129, 9
defining the jurisdiction of the Court of Appeals. This provision reads in part:
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SEC. 9. Jurisdiction. The Court of Appeals shall exercise:

x

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(3) Exclusive appellate jurisdiction over all final judgments, decisions, resolutions, orders, or awards of
Regional Trial Courts and quasi-judicial agencies, instrumentalities, boards or commissions, including the
Securities and Exchange Commission, the Social Security Commission, the Employees Compensation
Commission and the Civil Service Commission, except those falling within the appellate jurisdiction of the
Supreme Court in accordance with the Constitution, the Labor Code of the Philippines under PD No. 442, as
amended, the provisions of this Act, and of subparagraph (1) of the third paragraph and subparagraph (4) of
the fourth paragraph of Section 17 of the Judiciary Act of 1948. . . . (Emphasis added)
The phrase "errors of fact or law or both" found in Rule 42, 2 and the phrase "any question of law or fact"
in Rule 44, 15 must, therefore, be understood to mean "question of fact or mixed questions of fact and
law" when referring to cases falling within the appellate jurisdiction of the Court of Appeals. The reason for
this is simple. Rule 42, 2 and Rule 44, 15 are procedural rules, and it is conventional learning that
procedural rules cannot amend or change substantive laws, such as the Constitution, the Judiciary Act of
1948 (R.A. No. 296), and the Judiciary Reorganization Act of 1980 (B.P. Blg. 129).
As petitioners appeal did not involve either a question of fact or a mixed question of fact and law, but solely
a question of law, resort to the Court of Appeals by mere notice of appeal was erroneous, and therefore the

appeal was correctly dismissed. Under no circumstance can the appeal be taken to the Court of Appeals
without violating the Judiciary Act of 1948 and B.P. Blg. 129.
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Third. Petitioners remedy was to file a petition for certiorari under Rule 65, 1 for, as already shown, the
question raised is not an error of law but an alleged error of jurisdiction. Such petition should be filed in the
Court of Appeals pursuant to B.P. Blg. 129, 9 by means of a special civil action ofcertiorari. Such petition
should have been brought within 60 days from notice to petitioner of the ruling of the trial court, which is
now long over.
Nonetheless, the majority argues that this Court should relax the rules and decide directly the question
raised by petitioner in the Court of Appeals, namely, whether the trial court could correct the penalty
imposed on petitioner after its decision had become final. It is contended that this is necessary because a
constitutional right of petitioner has been violated, i.e., the right of petitioner not to be placed in double
jeopardy.
Rules governing jurisdiction and the procedure for appeals as discussed above are not mere technicalities.
They are part and parcel of the system of doing justice. It is JUSTICE ACCORDING TO LAW which we
administer. As the majority notes, Rule 115, 1(i) gives every accused the right to appeal from a judgment
of conviction. The same Rule provides, however, that the exercise of the right to appeal must be "in the
manner prescribed by law."
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Nor is it tenable to invoke "demands of substantial justice" in this case as ground for setting aside the rules.
Justice is due the State and the complainant in the criminal case as much as it is due petitioner. Again and
again, the majority harps on the fact that the decision of the trial court had already become final and
therefore it could no longer be modified even if that was to correct a plain error in computing the penalty.
We are told that petitioner has the right not to be placed in double jeopardy of punishment for the same
offense. This is not however the issue before this Court. The issue here is whether the Court of Appeals
erred in dismissing petitioners appeal (1) because appeals in cases in which the only error assigned is a
question of law are exclusively cognizable by this Court and petitioner should have filed a petition for review
on certiorari, not a mere notice of appeal given to the trial court and (2) because petitioners remedy was
really a special civil action of certiorari under Rule 65.
It is I think misplaced sentimentality to argue on the constitutional right of petitioner when he had his
remedies to seek vindication of this right but lost them by default by failing to avail himself of those
remedies in the law. What about the right of the State and of complainant to have the correct penalty
imposed on petitioner who does not question his conviction? After all, the mistake in the imposition of the
penalty was that of the trial court, not that of the State and the complainant.
The demands of justice would seem to indicate that petitioner be not allowed to invoke the finality of the
erroneous sentence in order to escape his just deserts. After all, what the trial court did in this case was to
correct an error it had made in fixing the maximum term of the sentence on petitioner. Petitioner, who does
not question his liability for bigamy, can claim no vested right in the erroneous sentence.
To summarize then, petitioner had remedies available to him for the correction of an error allegedly
committed by the trial court. But he lost those remedies by default. We cannot set aside the rules just so he
will be able to raise the questions which he sought to raise in the Court of Appeals. We must abide by our
rules. This is the essence of the Rule of Law.
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I vote therefor to affirm the decision of the Court of Appeals.

[G.R. No. 121234. August 23, 1995.]

HUBERT J. P. WEBB, Petitioner, v. HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding

Judge of he Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON
L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and
NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding
Judge of the Regional Trial Court of Paraaque, Branch 274,Respondents, LAURO VIZCONDE,
intervenor.
[G.R. No. 121245. August 23, 1995.]
MICHAEL A. GATCHALIAN, Petitioner, v. HONORABLE RAUL E. DE LEON, the Presiding Judge of
the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the
Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE
PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO,
PABLO FORMARAN. and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch
274,Respondents.
[G.R. No. 121297. August 23, 1995.]
ANTONIO L. LEJANO, Petitioner, v. HONORABLE RAUL E. DE LEON, the Presiding Judge of the
Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding
Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES,
ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR. ROBERTO LAO, PABLO
FORMARAN. and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G.
TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch
274,Respondents.
Perlas, Mendoza, Chan & Garciano Law Office for petitioner in G.R. No. 121297.
R.A.V. Saguisag and Robles, Ricafrente & Aguirre Law Firm for petitioner in G.R. No. 121234.
Renato L. Cayetano and Ma. Larrie B. Alinsunurin for Lauro Vizconde.
Florante A. Bautista and Manuel M. Sunga and Rene S. Gorospe for petitioner in G.R. No. 121245.
The Solicitor General for Respondents.
SYLLABUS
1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PURPOSE. We start with a
restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary
investigation should determine." . . whether there is a sufficient ground to engender a well-grounded belief
that a crime cognizable by the Regional Trial Court has been committed and that the respondent is probably
guilty thereof, and should be held for trial."
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2. ID.; ID.; ARREST; PROBABLE CAUSE; CONSTRUED. The need to find probable cause is dictated by the
Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable
searches and seizures of whatever nature . . ." An arrest without a probable cause is an unreasonable
seizure of a person, and violates the privacy of persons which ought not to be intruded by the State.
Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case
law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man
to believe that an offense has been committed by the person sought to be arrested. Other jurisdictions
utilize the term man of reasonable caution or the term ordinarily prudent and cautious man. The terms are
legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a
judge but to the average man on the street. It ought to be emphasized that in determining probable cause,
the average man weighs facts and circumstances without resorting to the calibrations of our technical rules
of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all
reasonable men have an abundance.
3. ID.; SPECIAL CIVIL ACTIONS; CERTIORARI; FINDING OF PROBABLE CAUSE BY THE DOJ PANEL AGAINST
PETITIONERS, NOT A GRAVE ABUSE OF DISCRETION. Giving the conflicting pieces of evidence of the NBI

and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable
cause against the petitioners. A finding of probable cause needs only to rest on evidence showing that more
likely than not a crime has been committed and was committed by the suspects. Probable cause need not be
based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable
doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v.
United States, while probable cause demands more than "bare suspicion," it requires "less than evidence
which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial.
It is not a pronouncement of guilt.
4. ID.; ID.; ID.; REFUSAL OF THE NBI TO CALL WITNESSES FOR CLARIFICATORY QUESTIONS, NOT A
GRAVE ABUSE OF DISCRETION. Considering the low quantum and quality of evidence needed to support
a finding of probable cause, we also hold that the DOJ Panel did not gravely abuse its discretion in refusing
to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions
is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand
already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable
cause merely implies probability of guilt and should be determined in a summary manner. Preliminary
investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of
his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the
case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable
cause and clarificatory hearing was unnecessary.
5. ID.; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PROBABLE CAUSE IN ISSUING WARRANTS.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than
Section 2 of Article III of the Constitution. The aforequoted provision deals with the requirements of
probable cause both with respect to issuance of warrants of arrest and search warrants. In search cases, two
conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue
of being connected with criminal activity, and that the items will be found in the place to be searched. It is
not also necessary that a particular person be implicated. By comparison, in arrest cases there must be
probable cause that a crime has been committed and that the person to be arrest committed it, which of
course can exist without any showing that evidence of the crime will be found at premises under the
persons control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in
the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, Section 6 of Rule
112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the
arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined.
6. ID.; ID.; ID.; ID.; ISSUING JUDGE NEED NOT PERSONALLY EXAMINE COMPLAINANT AND HIS
WITNESSES. What the Constitution underscores is the exclusive and personal responsibility of the issuing
judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable
cause for the issuance of a warrant of arrest, the judge is not required to personally examine the
complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally
evaluate the report and the supporting documents submitted by the fiscal regarding the existence of
probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no
probable cause, he may disregard the fiscals report and require the submission of supporting affidavits of
witnesses to aid him in arriving at a conclusions as to the existence of probable cause. (Soliven v. Makasiar,
167 SCRA 397) Clearly then, the Constitution, the Rules of Court, and our case law repudiate the submission
of petitioners that respondent judges should have conducted "searching examination of witnesses" before
issuing warrant of arrest against them. In the case at bar, the DOJ Panel submitted to the trial court its 26page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita
Birrer as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of
the parties evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to
issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges
merely determine personally the probability, not the certainty of guilt of an accused. In doing so, judges do
not conduct a de novo hearing to determine the existence of probable cause. They just personally review the
initial determination of the prosecutor finding a probable cause to see if it is supported by substantial
evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours.
The fact that it took the respondent judges a few hours to review and affirm the probable cause
determination of the DOJ Panel does not mean they made no personal evaluation of the evidence attached
to the records of the case.
7. ID.; ID.; ID.; ID.; NO RULE REQUIRING ISSUANCE OF ORDER OF ARREST PRIOR TO WARRANT OF
ARREST. They also reject petitioners contention that a judge must first issue an order of arrest before
issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a

warrant of arrest.
8. ID.; ID.; ID.; ID.; ALLADO DOCTRINE NOT APPLICABLE TO CASE AT BAR. Petitioners reliance on the
case of Allado v. Diokno is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to
show the existence of probable cause. Not even the corpus delicti of the crime was established by the
evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed
the necessity for the trial judge to make a further personal examination of the complainant and his
witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing
warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As
priorly discussed, the various types of evidence extant in the records of the case provide substantial basis
for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is
an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also
disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent
judges to take the further step of examining ex parte the complainant and their witnesses with searching
questions.
9. ID.; ID.; ID.; ID.; FILING OF INFORMATION IN COURT EVEN IF ACCUSED CAN APPEAL PROSECUTORS
RECOMMENDATION WITH THE SECRETARY OF JUSTICE, NOT A DENIAL OF DUE PROCESS. The records
will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners
were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is
well stressed in the Consolidated Comment of the Solicitor General. Petitioners cannot also assail as
premature the filing of the Information in court against them for rape with homicide on the ground that they
still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of
said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25,
1993. Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the
consummation of the preliminary investigation even if the accused can still exercise the right to seek a
review of the prosecutors recommendation with the Secretary of Justice.
10. ID.; ID.; POWER TO DISCHARGE A WITNESS TO BE A STATE WITNESS, NOT A JUDICIAL PREROGATIVE.
Petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on
Republic Act No. 6981, entitled "An Act Providing for A Witness Protection, Security And Benefit Program And
For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10. Upon qualification of
Alfaro to the program, Section 12 of the said law mandates her non-inclusion in the criminal Complaint or
Information. The validity of these provisions is challenged by petitioner Webb. It is urged that they
constitute." . an intrusion into judicial prerogative for it is only the court which has the power under the
Rules on Criminal Procedure to discharge an accused as a state witness." The argument is based on Section
9, Rule 119 which gives the court the prerogative to approve the discharge of an accused to be a state
witness. Petitioners argument lacks appeal for it lies on the faulty assumption that the decision whom to
prosecute is a judicial function, the sole prerogative of courts and beyond executive and legislative
interference. In truth, the prosecution of crimes appertains to the executive department of government
whose principal power and responsibility is to see that our laws are faithfully executed. A necessary
component of this power to execute our laws is the right to prosecute their violators. The right to prosecute
vests the prosecutor with a wide range of discretion the discretion of whether, what and whom to charge,
the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We
thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the
Department of Justice the power to determine who can qualify as a witness in the program and who shall be
granted immunity from prosecution. Section 9 of Rule 119 does not support the proposition that the power
to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court is
given the power to discharge a state witness only because it has already acquired jurisdiction over the crime
and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of
an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change
by legislation designed to improve the administration of our justice system. R. A. No. 6981 is one of the
much sought penal reform laws to help government in its uphill fight against crime, one certain cause of
which is the reticence of witnesses to testify . The rationale for the law is well put by the Department of
Justice, viz: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in
the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal
complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective
administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting
them certain rights and benefits to ensure their appearance in investigative bodies/courts." Petitioner Webbs
challenge to the validity of R.A. No. 6981 cannot therefore succeed.

11. ID.; ID.; ID.; DISCOVERY PROCEEDINGS, NOT EXPRESSLY PROVIDED THEREIN. Petitioners charge
the NBI with violating their right to discovery proceedings during their preliminary investigation by
suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The
argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under
preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do
not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal
proceeding. Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars
and for production or inspection of material evidence in possession of the prosecution. But these provisions
apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to
assist them to make an intelligent plea at arraignment and to prepare for trial.
12. ID.; ID.; ID.; ID.; MAY STILL BE AVAILED OF. This failure to provide discovery procedure during
preliminary investigation does not, however, negate its use by a person under investigation when
indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not
too early a stage to guard against any significant erosion of the constitutional right to due process of a
potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability
that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the
suspects life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty
of petitioners cannot be understated for they are charged with the crime of rape with homicide, a nonbailable offense when the evidence of guilt is strong.
13. ID.; ID.; ID.; A SUBSTANTIVE RIGHT. As this Court emphasized in Rolito Go v. Court of Appeals, "the
right to have a preliminary investigation conducted before being bound over for trial for a criminal offense,
and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it
is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from any material damage.
14. ID.; ID.; ID.; ID.; ACCUSED HAVE THE RIGHT TO DEMAND FROM THEIR PROSECUTOR ORIGINAL COPY
OF SWORN STATEMENTS OF ITS STAR WITNESS AND THE FBI REPORT WHICH IS EXCULPATORY TO THE
DEFENSE. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI,
the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary
investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of
their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be
operational even during the preliminary investigation of a potential accused. It is also implicit in Section (3)
(a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint which
shall." . . state the known address of the respondent and be accompanied by affidavits of the complainant
and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not
without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland
the United States Supreme Court held that "suppression of evidence favorable to an accused upon request
violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or
bad faith of the prosecution." Its progeny is the 1935 case of Mooney v. Holohan which laid down the
proposition that a prosecutors intentional use of perjured testimony to procure conviction violates due
process. Thus, involved jurisprudence firming up the prosecutors duty to disclose to the defense exculpatory
evidence in its possession.
15. ID.; ID.; ID.; ID.; ID.; RATIONALE. The rationale is well put by Justice Brennan in Brady "society
wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not
treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished.
16. ID.; ID.; ID.; PREJUDICIAL PUBLICITY; WHEN PRESENT. We recognized that pervasive and prejudicial
publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in
Martelino, Et. Al. v. Alejandro, Et Al., we held that to warrant a finding of prejudicial publicity there must be
allegation and proof that the judges have been unduly influenced, not simply that they might be, by the
barrage of publicity.
17. ID.; ID.; ID.; ID.; NOT PRESENT IN CASE AT BENCH. In the case at bar, we find nothing in the
records that will prove that the tone and content of the publicity that attended the investigation of
petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the
subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown
and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and
Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in
determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page

Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record
evidence except evidence properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity.
18. JUDICIAL ETHICS; JUDGES; DUTY OF TRIAL JUDGE IN HIGH PROFILE CRIMINAL CASES TO CONTROL
PUBLICITY PREJUDICIAL TO THE FAIR ADMINISTRATION OF JUSTICE. We stress that probable cause is
not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too
much of its heat can bring to flame an accuseds right to fair trial. Without imposing on the trial judge the
difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be
reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair
administration of justice. The Court reminds judges that our ability to dispense impartial justice is an issue
in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than
convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the
promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal
from the bar of public opinion.
FRANCISCO, J., concurring opinion:

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1. REMEDIAL LAW; CRIMINAL PROCEDURE; PRELIMINARY INVESTIGATION; PURPOSE. Preliminary

investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a
crime has been committed and whether there is probable cause to believe that the accused is guilty thereof
(Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt.
Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the
finding and determination of probable cause by prosecutors in preliminary investigations. If not, the
functions of the courts will be unduly hampered by innumerable petitions compelling the review of the
exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an
information in court their finding can be immediately brushed aside at the instance of those charged
(Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at
unmeritorious moves that could give a dent in the efficient and effective administration of justice.
2. ID.; ID.; TRIAL; WHERE WEIGHT AND SUFFICIENCY OF EVIDENCE IS BEST ASSAYED. Petitioners
characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses.
The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth,
a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be
preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a
partys defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are
better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media
attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial.
3. ID.; ID.; WARRANT OF ARREST; EXISTENCE OF PROBABLE CAUSE; JUDGE NEED NOT PERSONALLY
EXAMINE COMPLAINANT AND THE WITNESSES IN ORDER TO ISSUE WARRANT; CAN RELY ON
CERTIFICATION OF PROSECUTOR. With respect to petitioners contention that public respondent judge
failed to personally examine and determine the existence of probable cause for the issuance of a warrant,
suffice it to say that the judge does not have to personally examine the complainant and his witnesses in
order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398
[1988]. There is ample evidence and sufficient basis on record that support the trial courts issuance of the
warrant as petitioners themselves do not contend that the prosecutors certification was unaccompanied by
the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover,
contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judges
examination of the certification, report and findings of the preliminary investigation and its annexes should
be as this depends not only upon the sound exercise of the judges discretion in personally determining the
existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292,
306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the
performance of his duties (Rule 131, Sec. 3[m], Rules of Court). The issuance of the warrants of arrest
against petitioners thus can not be said to be whimsical or arbitrary.
DECISION

PUNO, J.:
Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and
mandamus with application for temporary restraining order and preliminary injunction to: (1) annul and set
aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita
Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the
aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the
accused therein. 1
From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI)
filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian.
Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the
Department of Justice formed a panel of prosecutors headed by Assistant Chief State prosecutor Jovencito
R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30,
1991 of Carmela N. Vizconde, 4 her mother Estrellita Nicolas-Vizoonde, 5 and sister Anne Marie Jennifer 6 in
their home at Number 80W. Vinzons, St., BF Homes, Paraaque, Metro Manila.
During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May
22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7
(2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa
E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March
9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt
on whether petitioner Webb was his co-passenger in the trip: (4) the sworn statement of Lolita Birrer, a
former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to
cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two of the
Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an
engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine
(9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19) 10 The genital examination of Carmela
confirmed the presence of spermatozoa. 11
Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production and
Examination of Evidence and Documents for the NBI to produce the following:
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"(a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert
Webb in the United States from March 9, 1991 to October 22, 1992;
(b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.;
(c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991);
(d) Photographs of fingerprints lifted from Vizconde residence taken during the investigation;
(e) Investigation records of NBI on Engr. Danilo Aguas, Et. Al.;
(f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2,
1991 submitted by Atty. Arlis Vela, Supervising Agent;
(g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the
May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;
(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent
Rodolfo C. Sison, Regional Deputy Director, NCRC;
(i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions
and duties;
(j) Statements made by other persons in connection with the crime charged."

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The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it

lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil
Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of
obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty.
Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The
original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It
appears however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of
Investigation (FBI) Report despite his request for its production.
Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he
went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His,
alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez,
Edgardo Ventura and Pamela Francisco. 13 To further support his defense, he submitted documentary
evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and
that he was issued by the State of California Drivers License. No. A8818707 on June 14, 1991. 15 Petitioner
Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner, Legal Attache of the US
Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on
March 9, 1991 as a passenger in United Airlines Flight No. 808.
The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter
Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to
dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and
Artemio "Dong" Ventura failed to file their counter-affidavits though they were served with subpoena in their
last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 oclock in the
evening of June 29. 1991 until 3 oclock in the morning of the following day, he was at the residence of his
friends, Carlos and Andrew Syyap, at New Alabang Village. Muntinlupa watching video tapes. He claimed
that his co-petitioner Lejano was with him.
On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents
for trial" and recommending that an Information for rape with homicide be filed against petitioners and their
co-respondents. 18 On the same date, it filed the corresponding Information 19 against petitioners and their
co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404
and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent
judge Raul de Leon, pairing judge of Judge Escano. who issued the warrants of arrest against the
petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any
suspicion about his impartiality considering his employment with the NBI before his appointment to the
bench. The case was re-raffled to branch 274, presided by Judge Amelita Tolentino who issued new warrants
of arrest against the petitioners and their co-accused. On August 11, 1995, petitioner Webb voluntarily
surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and
Lejano likewise gave themselves up to the authorities after filing their petitions before us.
In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused
their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest
against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause
to charge them crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due
process their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative
when it failed to charge Jessica Alfaro in the Information as an accused.
We find the petitions bereft of merit.
I
Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn
statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material
inconsistencies between April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for
her misdescription of petitioner Webbs hair as semi-blonde. They also criticize the procedure followed by the
DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the
sworn statements of the witnesses for the NBI.
We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides
that a preliminary investigation should determine." . . whether there is a sufficient ground to engender a
well-grounded belief that a crime cognizable by the Regional Trial Court has been committed and that the

respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the
procedure in conducting a preliminary investigation, thus:
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"SECTION 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an
offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been
first conducted in the following manner:
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(a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the
complainant and his witnesses as well as other supporting documents, in such number of copies as there are
respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal,
state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a
notary public, who must certify that he personally examined the affiants and that he is satisfied that they
voluntarily executed and understood their affidavits.
(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the
same if the finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching
thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from
receipt thereof, the respondent shall submit counter-affidavits and other supporting documents. He shall
have the right to examine all other evidence submitted by the complainant.
(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn
to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the
complainant.
(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter affidavits within the
ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the
complainant.
(e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to
propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded
an opportunity to be present but without the right to examine or cross-examine. If the parties so desire,
they may submit questions to the investigating officer which the latter may propound to the parties or
witnesses concerned.
(f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the
case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall
determine whether or not there is sufficient ground to hold the respondent for trial."
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Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial,
he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as
shown by the record, an authorized officer, has personally examined the complaint and his witnesses, that
there is reasonable ground to believe that a crime has been committed and that the accused is probably
guilty thereof . . . ."
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The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be
secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An
arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons
which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept
in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which
would lead a reasonably discreet and prudent man to believe an offense has been committed by the person
sought to be arrested. 22 Other jurisdictions utilize the term man of reasonable caution 23 or the term
ordinarily prudent and cautious man. 24 The terms are legally synonymous and their reference is not to a
person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It
ought to be emphasized that in determining probable cause, the average man weights facts and
circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge
is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance.
Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion
when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2)
grounds: (a) she allegedly erroneously described petitioner Webbs hair as semi-blond and she committed
material inconsistencies in her two (2) sworn statements, thus: 26

"x

"To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro:

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On whether Alfaro knew Carmela before the incident in question

First Affidavit: She had NOT met Carmela before June 29, 1991.
Second Affidavit: I met her in a party sometime in February, 1991.
On whether Alfaro saw the dead bodies
First Affidavit: She did not see the three dead persons on that night. She just said on the following day I
read in the newspaper that there were three persons who were killed . . .
Second Affidavit: I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied,
and in the floor, I saw Hubert on top of Carmela.
On the alleged rape of Carmela Vizconde
First Affidavit: She did not see the act of rape.
Second Affidavit: She saw Hubert Webb with bare buttocks, on top of Carmela and pumping, her mouth
gagged and she was moaning and I saw tears on her eyes.
On how Webb, Lejano, and Ventura entered the Vizconde house
First Affidavit: by jumping over the fence, which was only a little more than a meter high.
Second Affidavit: They entered the gate which was already open.
On whether Alfaro entered the Vizconde house
First Affidavit: She never entered the house.
Second Affidavit: I proceeded to the iron grill gate leading to the dirty kitchen."

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In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the
credibility of Alfaro. We quote the pertinent ruling, viz.: 27
"x

"As regards the admissibility of Alfaros statements, granting for purpose of argument merely that she is a
co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the
probability of the co-conspirators participation in the commission of the crime (see People v. Lumahang, 94
Phil. 1084).
Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior
agreement to commit the crime. Indeed, only rarely would such a prior agreement be demonstrable since,
in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus,
conspiracy may be inferred from the conduct of the accused before, during and after the commission of the
crime, showing that the several accused had acted in connect or in unison with each other, evincing a
common purpose or design. (Angelo v. Court of Appeals, 210 SCRA 402 [1992], Citations omitted; People v.
Molleda, 86 SCRA 699).
Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. In
Angelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying
of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was
executed five (5) months earlier. Granting, the Court continued, that a part of the witness testimony is
untrue, such circumstance is not sufficient to discredit the entire testimony of the witness.
On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the

instant complaint should not be decided within the month to give time to the NBI to coordinate with FBI on
the latters inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S. based witness.
In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno,
falsus in omnibus arising from the inconsistencies of Alfaros statements, among others. This is untenable.
As held in Angelo:
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There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of
belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The
maxim Falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is
universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion
reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the
court deemed proper.
In the case before us, complainant reasoned out that Alfaro was then having reservations when she first
executed the first statement and held back vital information due to her natural reaction of mistrust. This
being so, the panel believes that the inconsistencies in Alfaros two sworn statements have been sufficiently
explained especially so where there is no showing that the inconsistencies were deliberately made to distort
the truth. Consequently, the probative value of Alfaros testimony deserves full faith and credit. As it has
been often noted, ex parte statements are generally incomplete because they are usually executed when the
affiants state of mind does not give her sufficient and fair opportunity to comprehend the import of her
statement and to narrate in full the incidents which transpired (People v. Sarellana, 233 SCRA 31 [1994];
Angelo v. Court of Appeals, supra). In the case of bar, there is no dispute that a has been committed and
what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima
facie case that respondents conspired in the perpetration of the imputed offense."
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We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and
consist of six (6) pages, in single space reciting in rich details how the crime was planned and then executed
by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales
and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight
No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29
"x

"According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00
oclock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she
and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. it was the last
time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States.
While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman,
claims, aside from corroborating the statement of Nerissa Rosales, that on June 30, 1991, she woke up at
around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their
clothes to be washed. As a matter of fact, in that early morning, she entered Huberts room and saw Hubert,
who was only wearing his pants, already awake and smoking while he was sitting on his bed. She up
Huberts scattered clothes and brought them together with the clothes of the other members of the family to
the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was
washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the
laundry, she went to the servants quarters. But feeling uneasy, she decided to go up to the stockroom near
Huberts room to see what he was doing. In the said stockroom, there is a small door going to Huberts
room and in that door there is a small opening where she used to see Hubert and his friends sniffing on
something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room.
On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around
4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time
that she saw Hubert until she left the Webb family.
On the other hand, Carlos J. Cristobal, alleged that on March 9, 1991, at about 10:00 in the morning, he
was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No.
808 at 2:00 in the afternoon for New York. At the airports lobby, he saw then Congressman Freddie Webb
with a male companion. He greeted him and Webb answered: Mabuti naman, at ito, ihahatid ko ang anak
ko papuntang Florida. He knew Freddie Webb because he often watched him then in a television show
Chicks to Chicks. He observed that the man whom Freddie Webb referred to as his son, was of the same

height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. he (son
of Webb) was then wearing a stripped white jacket. When he and his children were already inside the plane,
he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy
class. He never noticed Freddie Webbs son upon their arrival in San Francisco. He claims that while watching
the television program DONG PUNO LIVE lately, he saw the wife of Freddie with her lawyer being
interviewed, and when she described Hubert as moreno and small built, with a height of five feet and seven
inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because
such description does not fit the physical traits of the son of Freddie, who left with him for United States on
the same flight and date.
Lolita Birrer, alleged that she know Gerardo Biong because she an affair with him for almost three (3) years
and in fact, she had a child with him who is now four (4) years old. Their relationship started in February,
1991 until she broke up with in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m.,
Biong invited her to play mahjong at the canteen of a certain Aling Glo located at the back of the Paraaque
Municipal Hall.
At about 2:30 in the early morning of June 30, 1991, the radio operator of the Paraaque police told Biong
that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after
somebody won the game, she, followed Biong at the radio room where she overheard him uttering, Ano?,
Saan?, Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige, When he put the phone
down, Biong told her, Mayroon lang akong rerespondehan, ikaw muna ang maupo and then, he went
outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived
with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by
blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not
able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around
7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his
handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief
and he answered, Hmp . . . amoy tae. She inquired what happened in BF. Homes and he replied, Putang
inang mga batang iyon, pinahirapan nila ako.
Biong later invited her for breakfast, but they first went to his office where she observed him doing
something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan, another policeman of
Paraaque, arrived and said, Oy Biong, may tatlong patay sa BF, inbestigahan mo to which Biong
answered, Oo susunod na ako. Biong went to the office of Capt. Bartolome who offered to accompany him
and with whom she asked permission to go with them. Before they preceded to the place where the killings
happened, she asked Biong if he knew the exact address and the latter immediately responded, Alam mo na
yon. She was surprised because Galvan never told him the place of the incident.
As soon as they arrived at the Viscondes residence, Biong instructed the housemaids to contact the victims
relatives, while the security guard fetched the barangay chairman and the president of the Homeowners
Association. when all these persons were already in the house, Biong started recording the wounds of the
victim. Inside the masters bedroom, she saw Biong took a watch from the jewelry box. Because she could
not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area.
On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out
from the room and proceeded to the front door to remove the chain lock; asked the keys from the
housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken
glass of the door and requested Capt. Bartolome to go inside the servants quarters as he doubted the
housemaids claim that they heard nothing unusual. Using the handle of his gun, Biong broke the remaining
glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of
the glass being broken. At the garage, Biong also noticed same marks on the hood of the car.
On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde
housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she
also saw from Vizcondes residence, to wit: calling cards, drivers license, ATM card, a crossed check worth
P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room
of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of
Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at
the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given
to him by the person who called him up in the early morning of June 30, 1991.
Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that
Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this

group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that
Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the
father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to
him (Colonel Pureza) and that was the last thing she remembered regarding this case.
The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioner. It
ruled: 30
"x

"The voluminous number of exhibit submitted by respondent Webb to support the his defense of denial alibi
notwithstanding the panel, after a careful and, thorough evaluation of the records believed that they cannot
outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification
made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification
especially so where the claim of alibi is supported mainly by friends and relatives (People v. Apolonla, 235
SCRA 124 [1994]: People v. Lucas, 181 SCRA 316 and a. long line of cases).
Similarly, denial is a self-serving negative which cannot be given, greater evidentiary weight than the
declaration of credible witness who testified on affirmative (People v. Carizo, 233 SCRA 687 ,[1994]. Indeed,
denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by
the witness for the prosecution (People v. Onpaid, 233 SCRA 62 [1994]).
Surprisingly, Gatchalians defense of alibi was not corroborated by Lejano, whom he claimed was with him
watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been
at or near the area of the Vizconde residence at the time of, the alleged commission of the crime,"
respondent Lejano proffered no evidence to substantiate his claim of alibi.
x

On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents
tending to show that he was thousands of miles away when the incident occurred. We have carefully
deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the
country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the
offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may
have submitted proof tending to show that he was issued a California drivers license on June 14, 1991,
there is no showing that he could not have been in the country on the dates above mentioned. Neither do
we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in
California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who
testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the
purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual
buyer of the merchandise."
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Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not
gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable cause
needs only to rest on evidence showing that more likely than not a crime has been committed and was
committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt,
neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing
absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more
than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of
probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt.
Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also
hold that the DOJ Panel did not gravely abuse its discretion in refusing to call the NBI witnesses for
clarificatory questions. The decision to call witnesses or clarificatory questions is addressed to the sound
discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable
cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies
probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of
trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to
confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel
correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory
hearing was unnecessary.

II
We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge
Amelita Tolentino issued warrants of arrest against them without conducting the required preliminary
examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants
of arrest in a matter of few hours: (2) the failure of said judges to issue orders of arrest: (3) the records
submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause:
and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL"
recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching
examination of witnesses and evaluation of the documents" on the part of said judges.
The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the
fundamental law of the land. Section 2 of Article III of the Constitution provides:
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"SECTION 2. The right of the people to be secure in their persons. houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may product
and particularly describing the place to be searched and the persons or things to be seized."
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The aforequoted provision deals with the requirements of probable cause both with respect to issuance of
warrants of arrest and search warrants. The similarities and differences of their requirements ought to be
educational. Some of them are pointed out by Professors LaFave and Israel, thus 32 : "It is generally
assumed that the same quantum of evidence is required whether one is concerned with probable cause to
arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different
facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be
supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected
with criminal activity, and that the items will be found in the place to be searched. It is not also necessary
that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a
crime has been committed and that the person to be arrested committed it, which of course can exist
without any showing that evidence of the crime will be found at premises under that persons control."
Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of
warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply
provides that "upon filing of an information. the Regional Trial Court may issue a warrant for the arrest of
the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus,
Sections 3, 4 and 5 of Rule 126 provide:
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"x

"SECTION 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable
cause in connection with one specific offense to be determined personally by the judge after examination
under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing
the place to be searched and the things to be seized.
SECTION 4. Examination of complainant; record. The judge must, before issuing the warrant, personally
examine in the form of searching questions and answers, in writing and under oath the complainant and any
witnesses he may produce on facts personally known to them and attach to the record their sworn
statements together with any affidavits submitted.
SECTION 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon
which the application is based, or that there is probable cause to believe that they exist he must issue the
warrant. which must be substantially in the form prescribed by these Rules."
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We discussed the difference in the procedure of issuing warrants of arrest and search warrants in Soliven v.
Makasiar, 33 thus:
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"x

"The second issue, raised by Beltran calls for an interpretation of the constitutional provision on the issuance
of warrants of arrest. The pertinent provision reads:
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Art. III. Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by
the judge after examination under oath or affirmation of the complainant and the witnesses he may
produce, and particularly describing the place to be searched and the persons or things to be seized.
The addition of the word personally after the word determined and the deletion of the grant of authority
by the 1973 Constitution to issue warrants to other responsible officers as may be authorized by law, has
apparently convinced petitioner Beltran that the constitution now requires the judge to personally examine
the complainant and his witnesses in his determination of probable cause for the issuance of warrants of
arrest. This is not an accurate interpretation.
What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy
himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the
issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his
witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the
supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis
hereof, issue a warrant of arrest: or (2) if on the basis thereof he finds no probable cause, he may disregard
the fiscals report and require the submission of supporting affidavits of witnesses to aid him in arriving at a
conclusions as to the existence of probable cause.
Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary
examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases
filed before their courts."
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Clearly then. the Constitution. the Rules of Court. and our case law 34 repudiate the submission of
petitioners that respondent judges should have conducted "searching, examination of witnesses" before
issuing warrants of arrest against them. They also reject petitioners contention that a judge must first issue
an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an
Order of Arrest prior to a warrant of arrest.
In the case at bar. the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn
statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter
affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties evidence made in
the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against
petitioners. Again. we stress that before issuing warrants of arrest, judges merely determine personally the
probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to
determine the existence of probable cause. They just personally review the initial determination of the
prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the
review process cannot be measured by merely counting minutes and hours. The fact that it took the
respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does
not mean they made no personal evaluation of the evidence attached to the records of the case. 36
Petitioners reliance on the case of Allado v. Diokno 37 is misplaced. Our Allado ruling is predicated on the
utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the
crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the
evidence on record, we stressed the necessity for the trial judge to make a further personal examination of
the complainant and his witnesses to reach a correct assessment of the existence or non-existence of
probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a
different factual setting. As priorly discussed, the various types of evidence extant in the records of the case
provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the
crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense
of petitioner Webb is also disputed by worn statements of their former maids. It was therefore unnecessary
for the respondent judges to take the further step of examining ex parte the complainant and their
witnesses with searching questions.
III
Petitioners also complain about the denial of their constitutional right to due process and violation of their
right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and
the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary
investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause
against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor
General, viz:
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"Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard.
Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held
on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and
Examination of Evidence and Documents" on June 27, 1995 (p. 4. Petition), a "Reply the Compliance and
Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6,
Petition), a "Comment and Manifestation" on July 7, 1995 (6, petition) his "Counter-Affidavit" on July 14,(pp.
6-7 Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter requests were also sent by the
petitioner Webbs counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports
prepared by the FBI concerning the petitioners whereabouts during the material period (Annexes "L", "L-1"
and "L-2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the
DOJ Panel not to issue subpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a
"Petition for Injunction,Certiorari. Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of
Makati in order to compel said Atty. Mercader, Jr. to produce the first sworn statement of Alfaro for
submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced
and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and
credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro.
(Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTG-Makati, branch 63 dated July 28,
1995) marked as Annex "F."
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It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation
was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further
proceedings, e.g., comparison of the photo-copies of the submitted documents with the originals on July 17,
1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on
July 18, 1995. (p. 17, Resolution) In addition to these, the panel even announced that any party may submit
additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the
termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the
resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on
August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court
that the investigating officer shall resolve the case within ten (10) days from the termination of the
preliminary investigation. The DOJ Panel precisely allowed the parties to adduce more evidence in their
behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of
the petitioners that the resolution of the preliminary investigation was done with indecent haste in violation
of the rights of the petitioners. During the period of twenty seven (27) days, the petitioners were free to
adduce and present additional evidence before the DOJ Panel.
Verily, petitioners cannot now assert that they were denied due process during the conduct of the
preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the
Information in court against them."
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Petitioners cannot also assail as premature the filing of the Information in court against them for rape with
homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the
Secretary of justice. The filing of said Information is in accord with Department of Justice Order No. 223,
series of 1993, dated June 25, 1993. We quote its pertinent sections, viz:
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"SECTION 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief
State prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable cause except upon
showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or
grave abuse of discretion no appeal shall be entertained where the appellant had already been arraigned. If
the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu proprio by
the Secretary of Justice.
An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the
filing of the information in court.
SECTION 2. When to Appeal. The appeal must be filed within a period of fifteen (15) days from receipt of
the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a

motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from
the time the resolution denying the motion shall have been received by the movant or his counsel."
(Emphasis supplied)
Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the
consummation of the preliminary investigation even if the accused can still exercise the right to seek a
review of the prosecutors recommendation with the Secretary of Justice.
Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged
conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on
Republic Act No. 6981, entitled "An Act providing For A Witness Protection, Security And Benefit Program
And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides:
"x

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"SECTION 10. State Witness. Any person who has participated in the commission of a crime and desires
to be a witness for the State, can apply and, if qualified as determined in this Act and by the Department,
shall be admitted into the Program whenever the following circumstances are present:
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(a) the offense in which his testimony will be used is a grave felony as defined under the R.P.C. or its
equivalent under special laws;
(b) there is absolute necessity for his testimony;
(c) there is no other direct evidence available for the proper prosecution of the offense committed;
(d) his testimony can be substantially corroborated on its material points;
(e) he does not appear to be most guilty; and
(f) he has not at anytime been convicted of any crime involving moral turpitude.
An accused discharged from an information or criminal complaint by the court in order that he may be a
State Witness pursuant to Sections 9 and 10 of Rule 119 of the Revised Rules of Court may upon his petition
be admitted to the Program if he complies with the other requirements of this Act. Nothing in this Act shall
prevent the discharge of an accused so that he can be used as a Witness under Rule 119 of the Revised
Rules of Court."
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Upon qualification of Alfaro to the program Section 12 of the said law mandated her non-inclusion in the
criminal Complaint or Information, thus:
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"x

SECTION 12. Effect of Admission of a State Witness into the Program. The certification of admission into
the Program by the Department shall be given full faith and credit by the provincial or city prosecutor who is
required NOT TO INCLUDE THE WITNESS IN THE CRIMINAL COMPLAINT OR INFORMATION and if included
therein to petition the court for his discharge in order that he can be utilized as a State Witness. The court
shall order the discharge and exclusion of the said accused from the information.
Admission into the Program shall entitle such State Witness to immunity from criminal prosecution for the
offense or offenses in which his testimony will be given or used and all the rights and benefits provided
under Section 8 hereof.
The validity of these provisions is challenged by petitioner Webb. It is urged that they constitute." . . an
intrusion into judicial prerogative for it is only the court which has the power under the Rules on Criminal
Procedure to discharge an accuse as a state witness." The argument is based on Section 9, Rule 119 38
which gives the court the prerogative to approve the discharge of an accused to be a state witness.
Petitioners argument lacks appeal for it lies on the faulty assumption that the decision whom to prosecute is
a judicial function, the sole prerogative of courts and beyond executive and legislative interference. In truth,
the prosecution of crimes appertains to the executive department of government whose principal power and
responsibility is to see that our laws are faithfully executed. A necessary component of this power to execute
our laws is the right to prosecute their violators. The right to prosecute vests the prosecutor with a wide

range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on
a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not
constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the
power to determine who can qualify as a witness in the program and who shall be granted immunity from
prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall
be a state witness is an inherent judicial prerogative. Under this provision the court is given the power to
discharge as state witness only because it has already acquired jurisdiction over the crime and the accused.
The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent
judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by
legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much
sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is
the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz:
"Witnesses. for fear of reprisal and economic dislocation, usually refuse to appear and testify in the
investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases
have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal
justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and
benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webbs challenge to the
validity of R. A No. 6981 cannot therefore succeed.
Further, petitioners charge the NBI with violating their right to discovery proceedings during their
preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro
and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the
rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules
on Criminal procedure do not expressly provide for discovery proceedings during the preliminary
investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the
right to move for a bill of particulars and for production or inspection of material evidence in possession of
the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and
the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to
prepare for trial. 43
This failure to provide discovery procedure during preliminary investigation does not, however, negate its
use by a person under investigation when indispensable to protect his constitutional tight to life, liberty and
property. Preliminary investigation is not too early a stage to guard against any significant erosion of the
constitutional right to due process of a potential accused. As afore discussed, the object of a preliminary
investigation is to determine the probability that the suspect committed a crime, We hold that the finding of
a probable cause by itself subjects the suspects life, liberty and property to real risk of loss or diminution. In
the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the
crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong.
Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation.
Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high
duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go v. Court of Appeals, 45 "the right to
have a preliminary investigation conducted before being bound over for trial for a criminal offense, and
hence formally at risk of incarceration or some other penalty, is not a mere or technical right; it is a
substantive right." A preliminary investigation should therefore be scrupulously conducted so that the
constitutional right to liberty of a potential accused can be protected from any material damage. We uphold
the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the
April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation
considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable
guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even
during the preliminary investigation of potential accused. It is also implicit in section (3) (a) of Rule 112
which requires during the preliminary investigation the filing of a sworn complaint which shall." . . state the
known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as
well as other supporting documents. . ."
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In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the
1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of
evidence favorable to an accused upon request violates due process where the evidence is material to guilt
or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case
of Mooney v. Holohan 47 which laid down the proposition that a prosecutors intentional use of perjured
testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the
prosecutors duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well

put by Justice Brennan in Brady 49 "society wins not only when the guilty are-convicted but when criminal
trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be
sprung and where gain by guile is not punished.
But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are
not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28,
1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable
cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaros
April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost.
Fortunately, Petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo
Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel
accepted the original of Alfaros April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners
thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the
exculpatory aspects of this sworn statement. Unfortunately for petitioners. the DOJ Panel still found probable
cause to charge them despite the alleged material discrepancies between the first and second sworn
statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down
as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi
of petitioner Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality
of evidence presented by the NBI.
Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial
publicity waged in the press and broadcast media by the NBI.
Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing
preliminary investigation. We find no procedural impediment to its early invocation considering the
substantial risk to their liberty while undergoing a preliminary investigation.
In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where
the conflicting demands of freedom of speech and of the press, the publics right to information, and an
accuseds right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing
where the balance should be truck has divided men of learning as the balance keeps moving either on the
side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The
dance of the balance is a difficult act to follow.
In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its
excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure,
few cases can match the high volume and high velocity of publicity that attended the preliminary
investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even
today. Commentators still bombard the public with views not too many of which are sober and sublime.
Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their
sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a
fair trial not withstanding, criminal trials cannot be completely closed to the press and the public. In the
seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held:
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"x

"(a) The historical evidence of the evolution of the criminal trial in Anglo American justice demonstrates
conclusively that at the time this Nations organic laws were adopted, criminal trials both here and in
England had long been presumptively open, thus giving assurance that the proceedings were conducted
fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret
bias or partiality. In addition, the significant community therapeutic value of public trials was recognized:
when a shocking crime occurs, a community reaction of outrage and public protest often follows, and
thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for
community concern, hostility, and emotion. To work effectively, it is important that societys criminal process
satisfy the appearance of justice, Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can
best be provided by allowing people to observe such process. From this unbroken, uncontradicted history,
supported by reasons as valid today as in centuries past, it must be concluded that a presumption of
openness inheres in the very nature of a criminal trial under this Nations system of justice, Cf., e.g., Levine
v. United States, 362 US 610, 4 L Ed 2d 989, 80 5 Ct 1038.
(b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a
common core purpose of assuring freedom of communication on matters relating to the functioning of

government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be
read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees;
the First Amendment right to receive information and ideas means, in the context of trials, that the
guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom
doors which had long been open to the public at the time the First Amendment was adopted. Moreover. the
right of assembly is also relevant, having been regarded not only as an independent right but also as a
catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately
linked by the draftsmen. A trial courtroom is a public place where the people generally and
representatives of the media have a right to be present, and where their presence historically has been
thought to enhance the integrity and quality of what takes place.
(c) Even though the Constitution contains no provision which by its terms guarantees to the public the right
to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as
indispensable to the enjoyment of enumerated rights. The right to attend criminal trials is implicit in the
guarantees of the First Amendment: without the freedom to attend such trials, which people have exercised
for centuries, important aspects of freedom of speech and of the press could be eviscerated."
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Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can
deprive an accused of his due process right to fair trial. Thus, in Martelino, Et. Al. v. Alejandro, Et Al., 54 we
held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have
been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we
find nothing in the records that will prove that the tone and content of the publicity that attended the
investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot
just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are
basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief
State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to
consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extrarecord evidence except evidence properly adduced by the parties. The length of time the investigation was
conducted despite its summary nature and the generosity with which they accommodated the discovery
motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the
disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of
prejudicial publicity.
It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have
to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the
light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an
accuseds right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie
of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high
profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court
reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal
prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting
the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done
and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion.
IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part
of the respondents. Costs against petitioners.
SO ORDERED.
Regalado and Mendoza, JJ., concur.
Narvasa, C.J., is on leave.
Separate Opinions
FRANCISCO, J., concurring:

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The thrust of petitioners arguments involve the validity and exercise of the prosecutory powers of the State.
Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants
of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a

case to warrant the Courts interference.

Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine
whether a crime has been committed and whether there is probable cause to believe that the accused is
guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond
reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this
case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not,
the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the
exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an
information in court their finding can be immediately brushed aside at the instance of those charged
(Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at
unmeritorious moves that could give a dent in the efficient and effective administration of justice.
Petitioners characterize the evidence against them to be inherently weak and corroborated vis-a-vis their
defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the
search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress
that trial is to e preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity
and merits of a partys defense or accusation as well as the admissibility or inadmissibility of testimonies and
evidence are better ventilated during the trial stage than in the preliminary investigation level. The
ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at
the trial.
With respect to petitioners contention that public respondent judge, failed to personally examine and
determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does
not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he
can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of
Arrests [June 30, 1997]; Soliven v. Makasiar, 167 SCRA 393, 399 [1988]). There is ample evidence and
sufficient basis on record that support the trial courts issuance of the warrant as petitioners themselves do
not contend that the prosecutors certification was unaccompanied by the records of the preliminary
investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners
simply, the Court may not determine how cursory or exhaustive the judges examination of the certification,
report and findings of the preliminary investigation and its annexes should be as this depends not only upon
the sound, exercise of the judges discretion in personally determining the existence of probable cause, but
also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent
judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131,
Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said
to be whimsical or arbitrary.
Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of
Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few
he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination,
the right to remain silent, to confront and cross-examine the witnesses against him, to have a speedy,
impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel
preferably of his own choice. These rights are afforded to the accused and not to the complainant.
Therefore, petitioners need not be distressed if they henceforth go to trial.
I vote to dismiss the petitions.

G.R. No. 176864 : December 14, 2010

PEOPLE OF THE PHILIPPINES, Appellee, v. HUBERT JEFFREY P. WEBB, ANTONIO LEJANO, MICHAEL
A. GATCHALIAN, HOSPICIO FERNANDEZ, MIGUEL RODRIGUEZ, PETER ESTRADA and GERARDO
BIONG, Appellants.
DECISION

ABAD, J.:

R E S O L U T I O N : January 18, 2011

SEPARATE OPINIONS:
CONCURRING OPINION:
Carpio Morales, J.
SUPPLEMENTAL OPINION:
Brion, J.
DISSENTING OPINION:
Villarama, Jr., J.
SEPARATE CONCURRING OPINION:
Sereno, J.

Brief Background
On June 30, 1991 Estrellita Vizconde and her daughters Carmela, nineteen years old, and Jennifer, seven,
were brutally slain at their home in ParaaqueCity. Following an intense investigation, the police arrested a
group of suspects, some of whom gave detailed confessions. But the trial court smelled a frame-up and
eventually ordered them discharged. Thus, the identities of the real perpetrators remained a mystery
especially to the public whose interests were aroused by the gripping details of what everybody referred to
as the Vizconde massacre.
Four years later in 1995, the National Bureau of Investigation or NBI announced that it had solved the
crime. It presented star-witness Jessica M. Alfaro, one of its informers, who claimed that she witnessed the
crime. She pointed to accused Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano, Artemio Dong Ventura,
Michael A. Gatchalian, Hospicio Pyke Fernandez, Peter Estrada, Miguel Ging Rodriguez, and Joey Filart as
the culprits. She also tagged accused police officer, Gerardo Biong, as an accessory after the fact. Relying
primarily on Alfaro's testimony, on August 10, 1995 the public prosecutors filed an information for rape with
homicide against Webb, et al.1
The RegionalTrialCourtofParaaqueCity, Branch 274, presided over by Judge Amelita G. Tolentino, tried only
seven of the accused since Artemio Ventura and Joey Filart remained at large. 2 The prosecution presented
Alfaro as its main witness with the others corroborating her testimony. These included the medico-legal
officer who autopsied the bodies of the victims, the security guards of Pitong Daan Subdivision, the former
laundrywoman of the Webbs household, police officer Biongs former girlfriend, and Lauro G. Vizconde,
Estrellitas husband.
For their part, some of the accused testified, denying any part in the crime and saying they were elsewhere
when it took place. Webbs alibi appeared the strongest since he claimed that he was then across the ocean
in the United States of America . He presented the testimonies of witnesses as well as documentary and

object evidence to prove this. In addition, the defense presented witnesses to show Alfaro's bad reputation
for truth and the incredible nature of her testimony.
But impressed by Alfaros detailed narration of the crime and the events surrounding it, the trial court found
a credible witness in her. It noted her categorical, straightforward, spontaneous, and frank testimony,
undamaged by grueling cross-examinations. The trial court remained unfazed by significant discrepancies
between Alfaros April 28 and May 22, 1995 affidavits, accepting her explanation that she at first wanted to
protect her former boyfriend, accused Estrada, and a relative, accused Gatchalian; that no lawyer assisted
her; that she did not trust the investigators who helped her prepare her first affidavit; and that she felt
unsure if she would get the support and security she needed once she disclosed all about the Vizconde
killings.
In contrast, the trial court thought little of the denials and alibis that Webb, Lejano, Rodriguez, and
Gatchalian set up for their defense. They paled, according to the court, compared to Alfaros testimony that
other witnesses and the physical evidence corroborated. Thus, on January 4, 2000, after four years of
arduous hearings, the trial court rendered judgment, finding all the accused guilty as charged and imposing
on Webb, Lejano, Gatchalian, Fernandez, Estrada, and Rodriguez the penalty of reclusion perpetua and on
Biong, an indeterminate prison term of eleven years, four months, and one day to twelve years. The trial
court also awarded damages to Lauro Vizconde.3
On appeal, the Court of Appeals affirmed the trial courts decision, modifying the penalty imposed on Biong
to six years minimum and twelve years maximum and increasing the award of damages to Lauro
Vizconde.4 The appellate court did not agree that the accused were tried by publicity or that the trial judge
was biased. It found sufficient evidence of conspiracy that rendered Rodriguez, Gatchalian, Fernandez, and
Estrada equally guilty with those who had a part in raping and killing Carmela and in executing her mother
and sister.
On motion for reconsideration by the accused, the Court of Appeals' Special Division of five members voted
three against two to deny the motion,5 hence, the present appeal.
On April 20, 2010, as a result of its initial deliberation in this case, the Court issued a Resolution granting
the request of Webb to submit for DNA analysis the semen specimen taken from Carmelas cadaver, which
specimen was then believed still under the safekeeping of the NBI. The Court granted the request pursuant
to section 4 of the Rule on DNA Evidence6 to give the accused and the prosecution access to scientific
evidence that they might want to avail themselves of, leading to a correct decision in the case.
Unfortunately, on April 27, 2010 the NBI informed the Court that it no longer has custody of the specimen,
the same having been turned over to the trial court. The trial record shows, however, that the specimen was
not among the object evidence that the prosecution offered in evidence in the case.
This outcome prompted accused Webb to file an urgent motion to acquit on the ground that the
governments failure to preserve such vital evidence has resulted in the denial of his right to due process.
Issues Presented
Accused Webbs motion to acquit presents a threshold issue: whether or not the Court should acquit him
outright, given the governments failure to produce the semen specimen that the NBI found on Carmelas
cadaver, thus depriving him of evidence that would prove his innocence.
In the main, all the accused raise the central issue of whether or not Webb, acting in conspiracy with Lejano,
Gatchalian, Fernandez, Estrada, Rodriguez, Ventura, and Filart, raped and killed Carmela and put to death
her mother and sister. But, ultimately, the controlling issues are:
1. Whether or not Alfaros testimony as eyewitness, describing the crime and identifying Webb, Lejano,
Gatchalian, Fernandez, Estrada, Rodriguez, and two others as the persons who committed it, is entitled to
belief; and

2. Whether or not Webb presented sufficient evidence to prove his alibi and rebut Alfaros testimony that he
led the others in committing the crime.
The issue respecting accused Biong is whether or not he acted to cover up the crime after its commission.
The Right to Acquittal
Due to Loss of DNA Evidence
Webb claims, citing Brady v. Maryland,7 that he is entitled to outright acquittal on the ground of violation of
his right to due process given the States failure to produce on order of the Court either by negligence or
willful suppression the semen specimen taken from Carmela.
The medical evidence clearly established that Carmela was raped and, consistent with this, semen specimen
was found in her. It is true that Alfaro identified Webb in her testimony as Carmelas rapist and killer but
serious questions had been raised about her credibility. At the very least, there exists a possibility that Alfaro
had lied. On the other hand, the semen specimen taken from Carmela cannot possibly lie. It cannot be
coached or allured by a promise of reward or financial support. No two persons have the same DNA
fingerprint, with the exception of identical twins. 8 If, on examination, the DNA of the subject specimen does
not belong to Webb, then he did not rape Carmela. It is that simple. Thus, the Court would have been able
to determine that Alfaro committed perjury in saying that he did.
Still, Webb is not entitled to acquittal for the failure of the State to produce the semen specimen at this late
stage. For one thing, the ruling in Brady v. Maryland9 that he cites has long be overtaken by the decision
inArizona v. Youngblood,10 where the U.S. Supreme Court held that due process does not require the State
to preserve the semen specimen although it might be useful to the accused unless the latter is able to show
bad faith on the part of the prosecution or the police. Here, the State presented a medical expert who
testified on the existence of the specimen and Webb in fact sought to have the same subjected to DNA test.
For, another, when Webb raised the DNA issue, the rule governing DNA evidence did not yet exist, the
country did not yet have the technology for conducting the test, and no Philippine precedent had as yet
recognized its admissibility as evidence. Consequently, the idea of keeping the specimen secure even after
the trial court rejected the motion for DNA testing did not come up. Indeed, neither Webb nor his co-accused
brought up the matter of preserving the specimen in the meantime.
Parenthetically, after the trial court denied Webbs application for DNA testing, he allowed the proceeding to
move on when he had on at least two occasions gone up to the Court of Appeals or the Supreme Court to
challenge alleged arbitrary actions taken against him and the other accused. 11 They raised the DNA issue
before the Court of Appeals but merely as an error committed by the trial court in rendering its decision in
the case. None of the accused filed a motion with the appeals court to have the DNA test done pending
adjudication of their appeal. This, even when the Supreme Court had in the meantime passed the rules
allowing such test. Considering the accuseds lack of interest in having such test done, the State cannot be
deemed put on reasonable notice that it would be required to produce the semen specimen at some future
time.
Now, to the merit of the case.

Alfaros Story
Based on the prosecutions version, culled from the decisions of the trial court and the Court of Appeals, on
June 29, 1991 at around 8:30 in the evening, Jessica Alfaro drove her Mitsubishi Lancer, with boyfriend Peter
Estrada as passenger, to theAyalaAlabangCommercialCenter parking lot to buy shabu from Artemio Dong
Ventura. There, Ventura introduced her to his friends: Hubert Jeffrey P. Webb, Antonio Tony Boy Lejano,
Miguel Ging Rodriguez, Hospicio Pyke Fernandez, Michael Gatchalian, and Joey Filart. Alfaro recalled

frequently seeing them at a shabu house in Paraaque in January 1991, except Ventura whom she had
known earlier in December 1990.
As Alfaro smoked her shabu, Webb approached and requested her to relay a message for him to a girl,
whom she later identified as Carmela Vizconde. Alfaro agreed. After using up their shabu, the group drove to
Carmelas house at 80 Vinzons Street, Pitong Daan Subdivision, BF Homes, ParaaqueCity. Riding in her car,
Alfaro and Estrada trailed Filart and Rodriguez who rode a Mazda pick-up and Webb, Lejano, Ventura,
Fernandez, and Gatchalian who were on a Nissan Patrol car.
On reaching their destination, Alfaro parked her car on Vinzons Street, alighted, and approached Carmelas
house. Alfaro pressed the buzzer and a woman came out. Alfaro queried her about Carmela. Alfaro had met
Carmela twice before in January 1991. When Carmela came out, Alfaro gave her Webbs message that he
was just around. Carmela replied, however, that she could not go out yet since she had just arrived home.
She told Alfaro to return after twenty minutes. Alfaro relayed this to Webb who then told the group to drive
back to the AyalaAlabangCommercialCenter.
The group had another shabu session at the parking lot. After sometime, they drove back but only Alfaro
proceeded to Vinzons Street where Carmela lived. The Nissan Patrol and the Mazda pick-up, with their
passengers, parked somewhere along Aguirre Avenue. Carmela was at their garden. She approached Alfaro
on seeing her and told the latter that she (Carmela) had to leave the house for a while. Carmela requested
Alfaro to return before midnight and she would leave the pedestrian gate, the iron grills that led to the
kitchen, and the kitchen door unlocked. Carmela also told Alfaro to blink her cars headlights twice when she
approached the pedestrian gate so Carmela would know that she had arrived.
Alfaro returned to her car but waited for Carmela to drive out of the house in her own car. Alfaro trailed
Carmela up to Aguirre Avenue where she dropped off a man whom Alfaro believed was Carmelas boyfriend.
Alfaro looked for her group, found them, and relayed Carmelas instructions to Webb. They then all went
back to the AyalaAlabangCommercialCenter. At the parking lot, Alfaro told the group about her talk with
Carmela. When she told Webb of Carmelas male companion, Webbs mood changed for the rest of the
evening (bad trip).
Webb gave out free cocaine. They all used it and some shabu, too. After about 40 to 45 minutes, Webb
decided that it was time for them to leave. He said, Pipilahan natin siya [Carmela] at ako ang
mauuna.Lejano said, Ako ang susunod and the others responded Okay, okay. They all left the parking
lot in a convoy of three vehicles and drove into Pitong Daan Subdivision for the third time. They arrived at
Carmelas house shortly before midnight.
Alfaro parked her car between Vizcondes house and the next. While waiting for the others to alight from
their cars, Fernandez approached Alfaro with a suggestion that they blow up the transformer near the
Vizcondes residence to cause a brownout (Pasabugin kaya natin ang transformer na ito). But Alfaro
shrugged off the idea, telling Fernandez, Malakas lang ang tama mo. When Webb, Lejano, and Ventura
were already before the house, Webb told the others again that they would line up for Carmela but he would
be the first. The others replied, O sige, dito lang kami, magbabantay lang kami.
Alfaro was the first to pass through the pedestrian gate that had been left open. Webb, Lejano, and Ventura
followed her. On entering the garage, Ventura using a chair mounted the hood of the Vizcondes Nissan
Sentra and loosened the electric bulb over it (para daw walang ilaw). The small group went through the
open iron grill gate and passed the dirty kitchen. Carmela opened the aluminum screen door of the kitchen
for them. She and Webb looked each other in the eyes for a moment and, together, headed for the dining
area.
As she lost sight of Carmela and Webb, Alfaro decided to go out. Lejano asked her where she was going and
she replied that she was going out to smoke. As she eased her way out through the kitchen door, she saw
Ventura pulling out a kitchen drawer. Alfaro smoked a cigarette at the garden. After about twenty minutes,
she was surprised to hear a womans voice ask, Sino yan? Alfaro immediately walked out of the garden to
her car. She found her other companions milling around it. Estrada who sat in the car asked her,Okay ba?
After sitting in the car for about ten minutes, Alfaro returned to the Vizconde house, using the same route.
The interior of the house was dark but some light filtered in from outside. In the kitchen, Alfaro saw Ventura

searching a ladys bag that lay on the dining table. When she asked him what he was looking for, he said:
Ikaw na nga dito, maghanap ka ng susi. She asked him what key he wanted and he replied:Basta
maghanap ka ng susi ng main door pati na rin ng susi ng kotse. When she found a bunch of keys in the
bag, she tried them on the main door but none fitted the lock. She also did not find the car key.
Unable to open the main door, Alfaro returned to the kitchen. While she was at a spot leading to the dining
area, she heard a static noise (like a television that remained on after the station had signed off). Out of
curiosity, she approached the masters bedroom from where the noise came, opened the door a little, and
peeked inside. The unusual sound grew even louder. As she walked in, she saw Webb on top of Carmela
while she lay with her back on the floor. Two bloodied bodies lay on the bed. Lejano was at the foot of the
bed about to wear his jacket. Carmela was gagged, moaning, and in tears while Webb raped her, his bare
buttocks exposed.
Webb gave Alfaro a meaningful look and she immediately left the room. She met Ventura at the dining area.
He told her, Prepare an escape. Aalis na tayo. Shocked with what she saw, Alfaro rushed out of the house
to the others who were either sitting in her car or milling on the sidewalk. She entered her car and turned
on the engine but she did not know where to go. Webb, Lejano, and Ventura came out of the house just
then. Webb suddenly picked up a stone and threw it at the main door, breaking its glass frame.
As the three men approached the pedestrian gate, Webb told Ventura that he forgot his jacket in the house.
But Ventura told him that they could not get in anymore as the iron grills had already locked. They all rode
in their cars and drove away until they reached Aguirre Avenue. As they got near an old hotel at the
TropicalPalace area, Alfaro noticed the Nissan Patrol slow down. Someone threw something out of the car
into the cogonal area.
The convoy of cars went to a large house with high walls, concrete fence, steel gate, and a long driveway at
BF Executive Village. They entered the compound and gathered at the lawn where the blaming session
took place. It was here that Alfaro and those who remained outside the Vizconde house learned of what
happened. The first to be killed was Carmelas mother, then Jennifer, and finally, Carmella. Ventura blamed
Webb, telling him, Bakit naman pati yung bata? Webb replied that the girl woke up and on seeing him
molesting Carmela, she jumped on him, bit his shoulders, and pulled his hair. Webb got mad, grabbed the
girl, pushed her to the wall, and repeatedly stabbed her. Lejano excused himself at this point to use the
telephone in the house. Meanwhile, Webb called up someone on his cellular phone.
At around 2:00 in the morning, accused Gerardo Biong arrived. Webb ordered him to go and clean up the
Vizconde house and said to him, Pera lang ang katapat nyan. Biong answered, Okay lang. Webb spoke to
his companions and told them, We dont know each other. We havent seen each otherbaka maulit
yan. Alfaro and Estrada left and they drove to her fathers house.12
1. The quality of the witness
Was Alfaro an ordinary subdivision girl who showed up at the NBI after four years, bothered by her
conscience or egged on by relatives or friends to come forward and do what was right? No. She was, at the
time she revealed her story, working for the NBI as an asset, a stool pigeon, one who earned her living by
fraternizing with criminals so she could squeal on them to her NBI handlers. She had to live a life of lies to
get rewards that would pay for her subsistence and vices.
According to Atty. Artemio Sacaguing, former head of the NBI Anti-Kidnapping, Hijacking, and Armed
Robbery Task Force (AKHAR) Section, Alfaro had been hanging around at the NBI since November or
December 1994 as an asset. She supplied her handlers with information against drug pushers and other
criminal elements. Some of this information led to the capture of notorious drug pushers like Christopher
Cruz Santos and Orlando Bacquir. Alfaros tip led to the arrest of the leader of the Martilyo gang that killed
a police officer. Because of her talent, the task force gave her very special treatment and she became its
darling, allowed the privilege of spending nights in one of the rooms at the NBI offices.
When Alfaro seemed unproductive for sometime, however, they teased her about it and she was piqued. One
day, she unexpectedly told Sacaguing that she knew someone who had the real story behind the Vizconde
massacre. Sacaguing showed interest. Alfaro promised to bring that someone to the NBI to tell his story.

When this did not happen and Sacaguing continued to press her, she told him that she might as well assume
the role of her informant. Sacaguing testified thus:
ATTY. ONGKIKO:
Q. Atty. Sacaguing, how did Jessica Alfaro become a witness in the Vizconde murder case? Will
you tell the Honorable Court?
xxxx
A. She told me. Your Honor, that she knew somebody who related to her the circumstances, I
mean, the details of the massacre of the Vizconde family. Thats what she told me, Your Honor.
ATTY. ONGKIKO:
Q. And what did you say?
xxxx
A. I was quite interested and I tried to persuade her to introduce to me that man and she
promised that in due time, she will bring to me the man, and together with her, we will try to
convince him to act as a state witness and help us in the solution of the case.
xxxx
Q. Atty. Sacaguing, were you able to interview this alleged witness?
WITNESS SACAGUING:
A. No, sir.
ATTY. ONGKIKO:
Q. Why not?
WITNESS SACAGUING:
A. Because Jessica Alfaro was never able to comply with her promise to bring the man to me. She
told me later that she could not and the man does not like to testify.
ATTY. ONGKIKO:
Q. All right, and what happened after that?
WITNESS SACAGUING:
A. She told me, easy lang kayo, Sir, if I may quote, easy lang Sir, huwag kayong
COURT:
How was that?
WITNESS SACAGUING:

A. Easy lang, Sir. Sir, relax lang, Sir, papapelan ko, papapelan ko na lang yan.
xxxx
ATTY. ONGKIKO:
Q. All right, and what was your reaction when Ms. Alfaro stated that papapelan ko na lang yan?
WITNESS SACAGUING:
A. I said, hindi puwede yan, kasi hindi ka naman eye witness.
ATTY. ONGKIKO:
Q. And what was the reply of Ms. Alfaro?
WITNESS SACAGUING:
A. Hindi siya nakakibo, until she went away.
(TSN, May 28, 1996, pp. 49-50, 58, 77-79)
Quite significantly, Alfaro never refuted Sacaguings above testimony.
2. The suspicious details
But was it possible for Alfaro to lie with such abundant details some of which even tallied with the physical
evidence at the scene of the crime? No doubt, yes.
Firstly, the Vizconde massacre had been reported in the media with dizzying details. Everybody was talking
about what the police found at the crime scene and there were lots of speculations about them.
Secondly, the police had arrested some akyat-bahay group in Paraaque and charged them with the crime.
The police prepared the confessions of the men they apprehended and filled these up with details that the
evidence of the crime scene provided. Alfaros NBI handlers who were doing their own investigation knew of
these details as well. Since Alfaro hanged out at the NBI offices and practically lived there, it was not too
difficult for her to hear of these evidentiary details and gain access to the documents.
Not surprisingly, the confessions of some members of the Barroso akyat bahay gang, condemned by the
Makati RTC as fabricated by the police to pin the crime on them, shows how crime investigators could make
a confession ring true by matching some of its details with the physical evidence at the crime scene.
Consider the following:
a. The Barroso gang members said that they got into Carmelas house by breaking the glass panel of the
front door using a stone wrapped in cloth to deaden the noise. Alfaro could not use this line since the core of
her story was that Webb was Carmelas boyfriend. Webb had no reason to smash her front door to get to
see her.
Consequently, to explain the smashed door, Alfaro had to settle for claiming that, on the way out of the
house, Webb picked up some stone and, out of the blue, hurled it at the glass-paneled front door of the
Vizconde residence. His action really made no sense. From Alfaros narration, Webb appeared rational in his
decisions. It was past midnight, the house was dark, and they wanted to get away quickly to avoid
detection. Hurling a stone at that glass door and causing a tremendous noise was bizarre, like inviting the
neighbors to come.

b. The crime scene showed that the house had been ransacked. The rejected confessions of the Barroso
akyat-bahay gang members said that they tried to rob the house. To explain this physical evidence, Alfaro
claimed that at one point Ventura was pulling a kitchen drawer, and at another point, going through a
handbag on the dining table. He said he was looking for the front-door key and the car key.
Again, this portion of Alfaros story appears tortured to accommodate the physical evidence of the ransacked
house. She never mentioned Ventura having taken some valuables with him when they left Carmelas house.
And why would Ventura rummage a bag on the table for the front-door key, spilling the contents, when they
had already gotten into the house. It is a story made to fit in with the crime scene although robbery was
supposedly not the reason Webb and his companions entered that house.
c. It is the same thing with the garage light. The police investigators found that the bulb had been loosened
to turn off the light. The confessions of the Barroso gang claimed that one of them climbed the parked cars
hood to reach up and darken that light. This made sense since they were going to rob the place and they
needed time to work in the dark trying to open the front door. Some passersby might look in and see what
they were doing.
Alfaro had to adjust her testimony to take into account that darkened garage light. So she claimed that
Ventura climbed the cars hood, using a chair, to turn the light off. But, unlike the Barroso akyat-bahay
gang, Webb and his friends did not have anything to do in a darkened garage. They supposedly knew in
advance that Carmela left the doors to the kitchen open for them. It did not make sense for Ventura to risk
standing on the cars hood and be seen in such an awkward position instead of going straight into the house.
And, thirdly, Alfaro was the NBIs star witness, their badge of excellent investigative work. After claiming
that they had solved the crime of the decade, the NBI people had a stake in making her sound credible and,
obviously, they gave her all the preparations she needed for the job of becoming a fairly good substitute
witness. She was their darling of an asset. And this is not pure speculation. As pointed out above,
Sacaguing of the NBI, a lawyer and a ranking official, confirmed this to be a cold fact. Why the trial court
and the Court of Appeals failed to see this is mystifying.
At any rate, did Alfaro at least have a fine memory for faces that had a strong effect on her, given the
circumstances? Not likely. She named Miguel Ging Rodriguez as one of the culprits in the Vizconde killings.
But when the NBI found a certain Michael Rodriguez, a drug dependent from the Bicutan Rehabilitation
Center, initially suspected to be Alfaros Miguel Rodriguez and showed him to Alfaro at the NBI office, she ran
berserk, slapping and kicking Michael, exclaiming: How can I forget your face. We just saw each other in a
disco one month ago and you told me then that you will kill me. As it turned out, he was not Miguel
Rodriguez, the accused in this case.13
Two possibilities exist: Michael was really the one Alfaro wanted to implicate to settle some score with him
but it was too late to change the name she already gave or she had myopic vision, tagging the wrong people
for what they did not do.
3. The quality of the testimony
There is another thing about a lying witness: her story lacks sense or suffers from inherent inconsistencies.
An understanding of the nature of things and the common behavior of people will help expose a lie. And it
has an abundant presence in this case.
One. In her desire to implicate Gatchalian, Fernandez, Estrada, Rodriguez, and Filart, who were supposed to
be Webbs co-principals in the crime, Alfaro made it a point to testify that Webb proposed twice to his friends
the gang-rape of Carmela who had hurt him. And twice, they (including, if one believes Alfaro, her own
boyfriend Estrada) agreed in a chorus to his proposal. But when they got to Carmelas house, only Webb,
Lejano, Ventura, and Alfaro entered the house.
Gatchalian, Fernandez, Estrada, and Rodriguez supposedly stayed around Alfaros car, which was parked on
the street between Carmelas house and the next. Some of these men sat on top of the cars lid while others
milled on the sidewalk, visible under the street light to anyone who cared to watch them, particularly to the
people who were having a drinking party in a nearby house. Obviously, the behavior of Webbs companions
out on the street did not figure in a planned gang-rape of Carmela.

Two. Ventura, Alfaros dope supplier, introduced her for the first time in her life to Webb and his friends in a
parking lot by a mall. So why would she agree to act as Webbs messenger, using her gas, to bring his
message to Carmela at her home. More inexplicably, what motivated Alfaro to stick it out the whole night
with Webb and his friends?
They were practically strangers to her and her boyfriend Estrada. When it came to a point that Webb decided
with his friends to gang-rape Carmela, clearly, there was nothing in it for Alfaro. Yet, she stuck it out with
them, as a police asset would, hanging in there until she had a crime to report, only she was not yet an
asset then. If, on the other hand, Alfaro had been too soaked in drugs to think clearly and just followed
along where the group took her, how could she remember so much details that only a drug-free mind can?
Three. When Alfaro went to see Carmela at her house for the second time, Carmella told her that she still
had to go out and that Webb and his friends should come back around midnight. Alfaro returned to her car
and waited for Carmela to drive out in her own car. And she trailed her up to Aguirre Avenue where she
supposedly dropped off a man whom she thought was Carmelas boyfriend. Alfaros trailing Carmela to spy
on her unfaithfulness to Webb did not make sense since she was on limited errand. But, as a critical witness,
Alfaro had to provide a reason for Webb to freak out and decide to come with his friends and harm Carmela.
Four. According to Alfaro, when they returned to Carmelas house the third time around midnight, she led
Webb, Lejano, and Ventura through the pedestrian gate that Carmela had left open. Now, this is weird.
Webb was the gang leader who decided what they were going to do. He decided and his friends agreed with
him to go to Carmelas house and gang-rape her. Why would Alfaro, a woman, a stranger to Webb before
that night, and obviously with no role to play in the gang-rape of Carmela, lead him and the others into her
house? It made no sense. It would only make sense if Alfaro wanted to feign being a witness to something
she did not see.
Five. Alfaro went out of the house to smoke at the garden. After about twenty minutes, a woman
exclaimed, Sino yan? On hearing this, Alfaro immediately walked out of the garden and went to her car.
Apparently, she did this because she knew they came on a sly. Someone other than Carmela became
conscious of the presence of Webb and others in the house. Alfaro walked away because, obviously, she did
not want to get involved in a potential confrontation. This was supposedly her frame of mind: fear of getting
involved in what was not her business.
But if that were the case, how could she testify based on personal knowledge of what went on in the house?
Alfaro had to change that frame of mind to one of boldness and reckless curiosity. So that is what she next
claimed. She went back into the house to watch as Webb raped Carmela on the floor of the masters
bedroom. He had apparently stabbed to death Carmelas mom and her young sister whose bloodied bodies
were sprawled on the bed. Now, Alfaro testified that she got scared (another shift to fear) for she hurriedly
got out of the house after Webb supposedly gave her a meaningful look.
Alfaro quickly went to her car, not minding Gatchalian, Fernandez, Estrada, Rodriguez, and Filart who sat on
the car or milled on the sidewalk. She did not speak to them, even to Estrada, her boyfriend. She entered
her car and turned on the engine but she testified that she did not know where to go. This woman who a
few minutes back led Webb, Lejano, and Ventura into the house, knowing that they were decided to rape
and harm Carmela, was suddenly too shocked to know where to go! This emotional pendulum swing
indicates a witness who was confused with her own lies.

4. The supposed corroborations

Intending to provide corroboration to Alfaros testimony, the prosecution presented six additional witnesses:
Dr. Prospero A. Cabanayan, the NBI Medico-Legal Officer who autopsied the bodies of the victims,
testified on the stab wounds they sustained14 and the presence of semen in Carmelas genitalia,15 indicating
that she had been raped.

Normal E. White, Jr., was the security guard on duty at Pitong Daan Subdivision from 7 p.m. of June 29 to
7 a.m. of June 30, 1991. He got a report on the morning of June 30 that something untoward happened at
the Vizconde residence. He went there and saw the dead bodies in the masters bedroom, the bag on the
dining table, as well as the loud noise emanating from a television set. 16
White claimed that he noticed Gatchalian and his companions, none of whom he could identify, go in and out
of Pitong Daan Subdivision. He also saw them along Vinzons Street. Later, they entered Pitong Daan
Subdivision in a three-car convoy. White could not, however, describe the kind of vehicles they used or recall
the time when he saw the group in those two instances. And he did not notice anything suspicious about
their coming and going.
But Whites testimony cannot be relied on. His initial claim turned out to be inaccurate. He actually saw
Gatchalian and his group enter the Pitong Daan Subdivision only once. They were not going in and out.
Furthermore, Alfaro testified that when the convoy of cars went back the second time in the direction of
Carmelas house, she alone entered the subdivision and passed the guardhouse without stopping. Yet, White
who supposedly manned that guardhouse did not notice her.
Surprisingly, White failed to note Biong, a police officer, entering or exiting the subdivision on the early
morning of June 30 when he supposedly cleaned up Vizconde residence on Webbs orders. What is more,
White did not notice Carmela arrive with her mom before Alfaros first visit that night. Carmela supposedly
left with a male companion in her car at around 10:30 p.m. but White did not notice it. He also did not
notice Carmela reenter the subdivision. White actually discredited Alfaros testimony about the movements
of the persons involved.
Further, while Alfaro testified that it was the Mazda pick-up driven by Filart that led the three-vehicle
convoy,17 White claimed it was the Nissan Patrol with Gatchalian on it that led the convoy since he would not
have let the convoy in without ascertaining that Gatchalian, a resident, was in it. Security guard White did
not, therefore, provide corroboration to Alfaros testimony.
Justo Cabanacan, the security supervisor at Pitong Daan Subdivision testified that he saw Webb around
the last week of May or the first week of June 1991 to prove his presence in the Philippines when he claimed
to be in the United States. He was manning the guard house at the entrance of the subdivision of Pitong
Daan when he flagged down a car driven by Webb. Webb said that he would see Lilet Sy. Cabanacan asked
him for an ID but he pointed to his United BF Homes sticker and said that he resided there. Cabanacan
replied, however, that Pitong Daan had a local sticker.
Cabanacan testified that, at this point, Webb introduced himself as the son of Congressman Webb. Still, the
supervisor insisted on seeing his ID. Webb grudgingly gave it and after seeing the picture and the name on
it, Cabanacan returned the same and allowed Webb to pass without being logged in as their Standard
Operating Procedure required.18
But Cabanacan's testimony could not be relied on. Although it was not common for a security guard to
challenge a Congressmans son with such vehemence, Cabanacan did not log the incident on the guardhouse
book. Nor did he, contrary to prescribed procedure, record the visitors entry into the subdivision. It did not
make sense that Cabanacan was strict in the matter of seeing Webbs ID but not in recording the visit.
Mila Gaviola used to work as laundry woman for the Webbs at their house at BF HomesExecutiveVillage.
She testified that she saw Webb at his parents house on the morning of June 30, 1991 when she got the
dirty clothes from the room that he and two brothers occupied at about 4.a.m. She saw him again pacing
the floor at 9 a.m. At about 1 p.m., Webb left the house in t-shirt and shorts, passing through a secret door
near the maids quarters on the way out. Finally, she saw Webb at 4 p.m. of the same day.19
On cross-examination, however, Gaviola could not say what distinguished June 30, 1991 from the other days
she was on service at the Webb household as to enable her to distinctly remember, four years later, what
one of the Webb boys did and at what time. She could not remember any of the details that happened in the
household on the other days. She proved to have a selective photographic memory and this only damaged
her testimony.

Gaviola tried to corroborate Alfaro's testimony by claiming that on June 30, 1991 she noticed bloodstains on
Webb's t-shirt.20 She did not call the attention of anybody in the household about it when it would have been
a point of concern that Webb may have been hurt, hence the blood.
Besides, Victoria Ventoso, the Webbs' housemaid from March 1989 to May 1992, and Sgt. Miguel Muoz, the
Webbs' security aide in 1991, testified that Gaviola worked for the Webbs only from January 1991 to April
1991. Ventoso further testified that it was not Gaviola's duty to collect the clothes from the 2 nd floor
bedrooms, this being the work of the housemaid charged with cleaning the rooms.
What is more, it was most unlikely for a laundrywoman who had been there for only four months to collect,
as she claimed, the laundry from the rooms of her employers and their grown up children at four in the
morning while they were asleep.
And it did not make sense, if Alfaros testimony were to be believed that Webb, who was so careful and
clever that he called Biong to go to the Vizconde residence at 2 a.m. to clean up the evidence against him
and his group, would bring his bloodied shirt home and put it in the hamper for laundrywoman Gaviola to
collect and wash at 4 a.m. as was her supposed habit.
Lolita De Birrer was accused Biongs girlfriend around the time the Vizconde massacre took place. Birrer
testified that she was with Biong playing mahjong from the evening of June 29, 1991 to the early morning of
June 30, when Biong got a call at around 2 a.m. This prompted him, according to De Birrer, to leave and go
to BF. Someone sitting at the backseat of a taxi picked him up. When Biong returned at 7 a.m. he washed
off what looked like dried blood from his fingernails. And he threw away a foul-smelling handkerchief. She
also saw Biong take out a knife with aluminum cover from his drawer and hid it in his steel cabinet. 21
The security guard at Pitong Daan did not notice any police investigator flashing a badge to get into the
village although Biong supposedly came in at the unholy hour of two in the morning. His departure before 7
a.m. also remained unnoticed by the subdivision guards. Besides, if he had cleaned up the crime scene
shortly after midnight, what was the point of his returning there on the following morning to dispose of some
of the evidence in the presence of other police investigators and on-lookers? In fact, why would he steal
valuable items from the Vizconde residence on his return there hours later if he had the opportunity to do it
earlier?
At most, Birrers testimony only established Biongs theft of certain items from the Vizconde residence and
gross neglect for failing to maintain the sanctity of the crime scene by moving around and altering the
effects of the crime. Birrers testimony failed to connect Biong's acts to Webb and the other accused.
Lauro Vizconde testified about how deeply he was affected by the loss of her wife and two daughters.
Carmella spoke to him of a rejected suitor she called Bagyo, because he was a Paraaque politicians son.
Unfortunately, Lauro did not appear curious enough to insist on finding out who the rejected fellow was.
Besides, his testimony contradicts that of Alfaro who testified that Carmela and Webb had an on-going
relation. Indeed, if Alfaro were to be believed, Carmela wanted Webb to come to her house around midnight.
She even left the kitchen door open so he could enter the house.
5. The missing corroboration
There is something truly remarkable about this case: the prosecutions core theory that Carmela and Webb
had been sweethearts, that she had been unfaithful to him, and that it was for this reason that Webb
brought his friends to her house to gang-rape her is totally uncorroborated!
For instance, normally, if Webb, a Congressmans son, courted the young Carmela, that would be news
among her circle of friends if not around town. But, here, none of her friends or even those who knew either
of them came forward to affirm this. And if Webb hanged around with her, trying to win her favors, he would
surely be seen with her. And this would all the more be so if they had become sweethearts, a relation that
Alfaro tried to project with her testimony.
But, except for Alfaro, the NBI asset, no one among Carmelas friends or her friends friends would testify
ever hearing of such relationship or ever seeing them together in some popular hangouts in Paraaque or

Makati. Alfaros claim of a five-hour drama is like an alien page, rudely and unconnectedly inserted into
Webb and Carmelas life stories or like a piece of jigsaw puzzle trimmed to fit into the shape on the board
but does not belong because it clashes with the surrounding pieces. It has neither antecedent nor
concomitant support in the verifiable facts of their personal histories. It is quite unreal.
What is more, Alfaro testified that she saw Carmela drive out of her house with a male passenger, Mr. X,
whom Alfaro thought the way it looked was also Carmelas lover. This was the all-important reason Webb
supposedly had for wanting to harm her. Again, none of Carmelas relatives, friends, or people who knew her
ever testified about the existence of Mr.X in her life. Nobody has come forward to testify having ever seen
him with Carmela. And despite the gruesome news about her death and how Mr. X had played a role in it, he
never presented himself like anyone who had lost a special friend normally would. Obviously, Mr. X did not
exist, a mere ghost of the imagination of Alfaro, the woman who made a living informing on criminals.
Webbs U.S. Alibi
Among the accused, Webb presented the strongest alibi.
a. The travel preparations
Webb claims that in 1991 his parents, Senator Freddie Webb and his wife, Elizabeth, sent their son to the
United States (U.S.) to learn the value of independence, hard work, and money.22 Gloria Webb, his aunt,
accompanied him. Rajah Tours booked their flight to San Francisco via United Airlines. Josefina Nolasco of
Rajah Tours confirmed that Webb and his aunt used their plane tickets.
Webb told his friends, including his neighbor, Jennifer Claire Cabrera, and his basketball buddy, Joselito
Orendain Escobar, of his travel plans. He even invited them to his despedidaparty on March 8, 1991 at Faces
Disco along Makati Ave.23 On March 8,1991, the eve of his departure, he took girlfriend Milagros Castillo to a
dinner at Bunchums at the Makati Cinema Square. His basketball buddy Rafael Jose with Tina Calma, a blind
date arranged by Webb, joined them. They afterwards went to Faces Disco for Webb's despedida party.
Among those present were his friends Paulo Santos and Jay Ortega. 24
b. The two immigration checks
The following day, March 9, 1991, Webb left for San Francisco,California, with his Aunt Gloria on board
United Airlines Flight 808.25 Before boarding his plane, Webb passed through the Philippine Immigration
booth at the airport to have his passport cleared and stamped. Immigration Officer, Ferdinand Sampol
checked Webbs visa, stamped, and initialed his passport, and let him pass through. 26 He was listed on the
United Airlines Flights Passenger Manifest.27
On arrival at San Francisco, Webb went through the U.S. Immigration where his entry into that country was
recorded. Thus, the U.S. Immigration Naturalization Service, checking with its Non-immigrant Information
System, confirmed Webb's entry into the U.S. on March 9, 1991. Webb presented at the trial the INS
Certification issued by the U.S. Immigration and Naturalization Service, 28 the computer-generated print-out
of the US-INS indicating Webb's entry on March 9, 1991, 29 and the US-INS Certification dated August 31,
1995, authenticated by the Philippine Department of Foreign Affairs, correcting an earlier August 10, 1995
Certification.30

c. Details of U.S. sojourn

In San Francisco, Webb and his aunt Gloria were met by the latters daughter, Maria Teresa Keame, who
brought them to Glorias house in Daly City,California. During his stay with his aunt, Webb met Christopher
Paul Legaspi Esguerra, Glorias grandson. In April 1991, Webb, Christopher, and a certain Daphne Domingo
watched the concert of Deelite Band in San Francisco. 31 In the same month, Dorothy Wheelock and her
family invited Webb to Lake Tahoe to return the Webbs hospitality when she was in the Philippines . 32

In May 1991, on invitation of another aunt, Susan Brottman, Webb moved to Anaheim
Hills,California.33 During his stay there, he occupied himself with playing basketball once or twice a week
with Steven Keeler34 and working at his cousin-in-laws pest control company.35 Webb presented the
companys logbook showing the tasks he performed,36 his paycheck,37 his ID, and other employment papers.
On June 14, 1991 he applied for a driver's license 38 and wrote three letters to his friend Jennifer Cabrera. 39
On June 28, 1991, Webbs parents visited him at Anaheim and stayed with the Brottmans. On the same day,
his father introduced Honesto Aragon to his son when he came to visit. 40 On the following day, June 29,
Webb, in the company of his father and Aragon went to Riverside,California, to look for a car. They bought
an MR2 Toyota car.41 Later that day, a visitor at the Brottmans, Louis Whittacker, saw Webb looking at the
plates of his new car.42To prove the purchase, Webb presented the Public Records of California Department of
Motor Vehicle43 and a car plate LEW WEBB.44 In using the car in the U.S. , Webb even received traffic
citations.45
On June 30, 1991 Webb, again accompanied by his father and Aragon, 46 bought a bicycle at
OrangeCycleCenter.47 The Center issued Webb a receipt dated June 30, 1991. 48 On July 4, 1991,
Independence Day, the Webbs, the Brottmans, and the Vaca family had a lakeside picnic. 49
Webb stayed with the Brottmans until mid July and rented a place for less than a month. On August 4, 1991
he left for Longwood,Florida, to stay with the spouses Jack and Sonja Rodriguez. 50 There, he met Armando
Rodriguez with whom he spent time, playing basketball on weekends, watching movies, and playing
billiards.51 In November 1991, Webb met performing artist Gary Valenciano, a friend of Jack Rodriguez, who
was invited for a dinner at the Rodriguezs house. 52 He left the Rodriguezs home in August 1992, returned to
Anaheim and stayed with his aunt Imelda Pagaspas. He stayed there until he left for the Philippines on
October 26, 1992.
d. The second immigration checks
As with his trip going to the U.S. , Webb also went through both the U.S. and Philippine immigrations on his
return trip. Thus, his departure from the U.S. was confirmed by the same certifications that confirmed his
entry.53 Furthermore, a Diplomatic Note of the U.S. Department of State with enclosed letter from Acting
Director Debora A. Farmer of the Records Operations, Office of Records of the US-INS stated that the
Certification dated August 31, 1995 is a true and accurate statement. And when he boarded his plane, the
Passenger Manifest of Philippine Airlines Flight No. 103,54 certified by Agnes Tabuena55confirmed his return
trip.
When he arrived in Manila, Webb again went through the Philippine Immigration. In fact, the arrival stamp
and initial on his passport indicated his return to Manila on October 27, 1992. This was authenticated by
Carmelita Alipio, the immigration officer who processed Webbs reentry.56 Upon his return, in October 1992,
Paolo Santos, Joselito Erondain Escobar, and Rafael Jose once again saw Webb playing basketball at the BF's
Phase III basketball court.
e. Alibi versus positive identification
The trial court and the Court of Appeals are one in rejecting as weak Webbs alibi. Their reason is uniform:
Webbs alibi cannot stand against Alfaros positive identification of him as the rapist and killer of Carmela
and, apparently, the killer as well of her mother and younger sister. Because of this, to the lower courts,
Webbs denial and alibi were fabricated.
But not all denials and alibis should be regarded as fabricated. Indeed, if the accused is truly innocent, he
can have no other defense but denial and alibi. So how can such accused penetrate a mind that has been
made cynical by the rule drilled into his head that a defense of alibi is a hangmans noose in the face of a
witness positively swearing, I saw him do it.? Most judges believe that such assertion automatically dooms
an alibi which is so easy to fabricate. This quick stereotype thinking, however, is distressing. For how else
can the truth that the accused is really innocent have any chance of prevailing over such a stone-cast tenet?
There is only one way. A judge must keep an open mind. He must guard against slipping into hasty
conclusion, often arising from a desire to quickly finish the job of deciding a case. A positive declaration from
a witness that he saw the accused commit the crime should not automatically cancel out the accuseds claim

that he did not do it. A lying witness can make as positive an identification as a truthful witness can. The
lying witness can also say as forthrightly and unequivocally, He did it! without blinking an eye.
Rather, to be acceptable, the positive identification must meet at least two criteria:
First, the positive identification of the offender must come from a credible witness. She is credible who can
be trusted to tell the truth, usually based on past experiences with her. Her word has, to one who knows her,
its weight in gold.
And second, the witness story of what she personally saw must be believable, not inherently contrived. A
witness who testifies about something she never saw runs into inconsistencies and makes bewildering
claims.
Here, as already fully discussed above, Alfaro and her testimony fail to meet the above criteria.
She did not show up at the NBI as a spontaneous witness bothered by her conscience. She had been
hanging around that agency for sometime as a stool pigeon, one paid for mixing up with criminals and
squealing on them. Police assets are often criminals themselves. She was the prosecutions worst possible
choice for a witness. Indeed, her superior testified that she volunteered to play the role of a witness in the
Vizconde killings when she could not produce a man she promised to the NBI.
And, although her testimony included details, Alfaro had prior access to the details that the investigators
knew of the case. She took advantage of her familiarity with these details to include in her testimony the
clearly incompatible act of Webb hurling a stone at the front door glass frames even when they were trying
to slip away quietlyjust so she can accommodate this crime scene feature. She also had Ventura
rummaging a bag on the dining table for a front door key that nobody needed just to explain the physical
evidence of that bag and its scattered contents. And she had Ventura climbing the cars hood, risking being
seen in such an awkward position, when they did not need to darken the garage to force open the front door
just so to explain the darkened light and foot prints on the car hood.
Further, her testimony was inherently incredible. Her story that Gatchalian, Fernandez, Estrada, Rodriguez,
and Filart agreed to take their turns raping Carmela is incongruent with their indifference, exemplified by
remaining outside the house, milling under a street light, visible to neighbors and passersby, and showing no
interest in the developments inside the house, like if it was their turn to rape Carmela. Alfaros story that
she agreed to serve as Webbs messenger to Carmela, using up her gas, and staying with him till the bizarre
end when they were practically strangers, also taxes incredulity.
To provide basis for Webbs outrage, Alfaro said that she followed Carmela to the main road to watch her let
off a lover on Aguirre Avenue. And, inexplicably, although Alfaro had only played the role of messenger, she
claimed leading Webb, Lejano, and Ventura into the house to gang-rape Carmella, as if Alfaro was
establishing a reason for later on testifying on personal knowledge. Her swing from an emotion of fear when
a woman woke up to their presence in the house and of absolute courage when she nonetheless returned to
become the lone witness to a grim scene is also quite inexplicable.
Ultimately, Alfaros quality as a witness and her inconsistent, if not inherently unbelievable, testimony cannot
be the positive identification that jurisprudence acknowledges as sufficient to jettison a denial and an alibi.
f. A documented alibi
To establish alibi, the accused must prove by positive, clear, and satisfactory evidence 57 that (a) he was
present at another place at the time of the perpetration of the crime, and (b) that it was physically
impossible for him to be at the scene of the crime.58
The courts below held that, despite his evidence, Webb was actually in Paraaque when the Vizconde killings
took place; he was not in the U.S. from March 9, 1991 to October 27, 1992; and if he did leave on March 9,
1991, he actually returned before June 29, 1991, committed the crime, erased the fact of his return to the
Philippines from the records of the U.S. and Philippine Immigrations, smuggled himself out of the Philippines
and into the U.S., and returned the normal way on October 27, 1992. But this ruling practically makes the

death of Webb and his passage into the next life the only acceptable alibi in the Philippines . Courts must
abandon this unjust and inhuman paradigm.
If one is cynical about the Philippine system, he could probably claim that Webb, with his fathers
connections, can arrange for the local immigration to put a March 9, 1991 departure stamp on his passport
and an October 27, 1992 arrival stamp on the same. But this is pure speculation since there had been no
indication that such arrangement was made. Besides, how could Webb fix a foreign airlines passenger
manifest, officially filed in the Philippines and at the airport in the U.S. that had his name on them? How
could Webb fix with the U.S. Immigrations record system those two dates in its record of his travels as well
as the dates when he supposedly departed in secret from the U.S. to commit the crime in the Philippines
and then return there? No one has come up with a logical and plausible answer to these questions.
The Court of Appeals rejected the evidence of Webbs passport since he did not leave the original to be
attached to the record. But, while the best evidence of a document is the original, this means that the same
is exhibited in court for the adverse party to examine and for the judge to see. As Court of Appeals Justice
Tagle said in his dissent,59 the practice when a party does not want to leave an important document with the
trial court is to have a photocopy of it marked as exhibit and stipulated among the parties as a faithful
reproduction of the original. Stipulations in the course of trial are binding on the parties and on the court.
The U.S. Immigration certification and the computer print-out of Webbs arrival in and departure from that
country were authenticated by no less than the Office of the U.S. Attorney General and the State
Department. Still the Court of Appeals refused to accept these documents for the reason that Webb failed to
present in court the immigration official who prepared the same. But this was unnecessary. Webbs passport
is a document issued by the Philippine government, which under international practice, is the official record
of travels of the citizen to whom it is issued. The entries in that passport are presumed true. 60
The U.S. Immigration certification and computer print-out, the official certifications of which have been
authenticated by the Philippine Department of Foreign Affairs, merely validated the arrival and departure
stamps of the U.S. Immigration office on Webbs passport. They have the same evidentiary value. The
officers who issued these certifications need not be presented in court to testify on them. Their
trustworthiness arises from the sense of official duty and the penalty attached to a breached duty, in the
routine and disinterested origin of such statement and in the publicity of the record. 61
The Court of Appeals of course makes capital of the fact that an earlier certification from the U.S.
Immigration office said that it had no record of Webb entering the U.S. But that erroneous first certification
was amply explained by the U.S. Government and Court of Appeals Justice Tagle stated it in his dissenting
opinion, thus:
While it is true that an earlier Certification was issued by the U.S. INS on August 16, 1995 finding
no evidence of lawful admission of Webb, this was already clarified and deemed erroneous by
no less than the US INS Officials. As explained by witness Leo Herrera-Lim, Consul and Second
Secretary of the Philippine Embassy in WashingtonD.C., said Certification did not pass through
proper diplomatic channels and was obtained in violation of the rules on protocol and standard
procedure governing such request.
The initial request was merely initiated by BID Commissioner Verceles who directly
communicated with the Philippine Consulate in San Francisco, USA , bypassing the Secretary of
Foreign Affairs which is the proper protocol procedure. Mr. Steven Bucher, the acting Chief of the
Records Services Board of US-INS Washington D.C. in his letter addressed to Philip Antweiler,
Philippine Desk Officer, State Department, declared the earlier Certification as incorrect and
erroneous as it was not exhaustive and did not reflect all available information. Also, Richard L.
Huff, Co-Director of the Office of Information and privacy, US Department of Justice, in response
to the appeal raised by Consul General Teresita V. Marzan, explained that the INS normally does
not maintain records on individuals who are entering the country as visitors rather than as
immigrants: and that a notation concerning the entry of a visitor may be made at the
Nonimmigrant Information system. Since appellant Webb entered the U.S. on a mere tourist visa,
obviously, the initial search could not have produced the desired result inasmuch as the data
base that was looked into contained entries of the names of IMMIGRANTS and not that of NONIMMIGRANT visitors of the U.S..62

The trial court and the Court of Appeals expressed marked cynicism over the accuracy of travel documents
like the passport as well as the domestic and foreign records of departures and arrivals from airports. They
claim that it would not have been impossible for Webb to secretly return to the Philippines after he
supposedly left it on March 9, 1991, commit the crime, go back to the U.S., and openly return to the
Philippines again on October 26, 1992. Travel between the U.S. and the Philippines , said the lower courts
took only about twelve to fourteen hours.
If the Court were to subscribe to this extremely skeptical view, it might as well tear the rules of evidence out
of the law books and regard suspicions, surmises, or speculations as reasons for impeaching evidence. It is
not that official records, which carry the presumption of truth of what they state, are immune to attack.
They are not. That presumption can be overcome by evidence. Here, however, the prosecution did not
bother to present evidence to impeach the entries in Webbs passport and the certifications of the Philippine
and U.S. immigration services regarding his travel to the U.S. and back. The prosecutions rebuttal
evidence is the fear of the unknown that it planted in the lower courts minds.
7. Effect of Webbs alibi to others
Webbs documented alibi altogether impeaches Alfaro's testimony, not only with respect to him, but also with
respect to Lejano, Estrada, Fernandez, Gatchalian, Rodriguez, and Biong. For, if the Court accepts the
proposition that Webb was in the U.S. when the crime took place, Alfaros testimony will not hold together.
Webbs participation is the anchor of Alfaros story. Without it, the evidence against the others must
necessarily fall.
CONCLUSION
In our criminal justice system, what is important is, not whether the court entertains doubts about the
innocence of the accused since an open mind is willing to explore all possibilities, but whether it entertains a
reasonable, lingering doubt as to his guilt. For, it would be a serious mistake to send an innocent man to jail
where such kind of doubt hangs on to ones inner being, like a piece of meat lodged immovable between
teeth.
Will the Court send the accused to spend the rest of their lives in prison on the testimony of an NBI asset
who proposed to her handlers that she take the role of the witness to the Vizconde massacre that she could
not produce?
WHEREFORE, the Court REVERSES and SETS ASIDE the Decision dated December 15, 2005 and
Resolution dated January 26, 2007 of the Court of Appeals in CA-G.R. CR-H.C. 00336
and ACQUITSaccused-appellants Hubert Jeffrey P. Webb, Antonio Lejano, Michael A. Gatchalian, Hospicio
Fernandez, Miguel Rodriguez, Peter Estrada and Gerardo Biong of the crimes of which they were charged for
failure of the prosecution to prove their guilt beyond reasonable doubt. They are ordered
immediately RELEASEDfrom detention unless they are confined for another lawful cause.
Let a copy of this Decision be furnished the Director, Bureau of Corrections, MuntinlupaCity for immediate
implementation. The Director of the Bureau of Corrections is DIRECTED to report the action he has taken to
this Court within five days from receipt of this Decision.
SO ORDERED.
[G.R. No. 182555 : September 07, 2010]
LENIDO LUMANOG AND AUGUSTO SANTOS, PETITIONERS, VS. PEOPLE OF THE PHILIPPINES,
RESPONDENT.
[G.R. No. 185123]
CESAR FORTUNA, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.
[G.R. No. 187745]

PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. SPO2 CESAR FORTUNA Y ABUDO,

RAMESES DE JESUS Y CALMA, LENIDO LUMANOG Y LUISTRO, JOEL DE JESUS Y VALDEZ AND
AUGUSTO SANTOS Y GALANG, ACCUSED, RAMESES DE JESUS Y CALMA AND JOEL DE JESUS Y
VALDEZ, ACCUSED-APPELLANTS.
DECISION
VILLARAMA, JR., J.:
For review is the Decision[1] dated April 1, 2008 of the Court of Appeals (CA) in CA-G.R. CR-HC No. 00667
which affirmed with modification the Joint Decision [2] dated July 30, 1999 of the Regional Trial Court of
Quezon City, Branch 103 in Criminal Case Nos. Q-96-66679, Q-96-66680, Q-96-66682, Q-96-66683 and Q96-66684.
The consolidated cases arose in connection with the killing of former Chief of the Metropolitan Command
Intelligence and Security Group of the Philippine Constabulary, now the Philippine National Police (PNP),
Colonel Rolando N. Abadilla ("Abadilla"), who was ambushed in broad daylight while driving his car along
Katipunan Avenue, Quezon City.
The Facts
On June 13, 1996, at around 8:00 o'clock in the morning, Abadilla left his house at Soliven I, Loyola Grand
Villas, Loyola Heights, Quezon City and drove his car, a black Honda Accord with Plate No. RNA-777. Soon
after he left, his wife Susan Abadilla received a phone call from him and they briefly talked. Just a few
minutes after their conversation, she received another phone call from Abadilla's tailor who was asking
about her husband because, according to him, he heard a radio broadcast report that Abadilla met an
accident.[3]
Meanwhile, at about 8:40 a.m., Senior Police Officer (SPO) 2 Arthur Ortiz, the desk officer on duty at Station
8 of the Central Police District Command (CPDC) located at P. Tuazon Blvd., Project 4, Quezon City,
answered a telephone call from a male person who reported a shooting incident along Katipunan Avenue.
Station Commander Police Chief Inspector (Insp.) Edward Villena, together with his investigators SPO2
Wahab Magundacan, Police Officer (PO) 2 Gerardo Daganta and PO1 Ronald Francisco immediately boarded
a PNP marked vehicle and headed towards Katipunan Avenue. [4]
Upon reaching the area at 8:45 a.m., they saw several onlookers around and near a black Honda Accord
with Plate No. RNA-777 on a stop position in the middle lane of Katipunan Avenue facing south going to
Libis. They found the victim's bloodied and bullet-riddled body partly slumped onto the pavement at the
car's left door, which was open. The front windshield and sliding glass windows on the left and right side
were shattered; a hole was seen on the glass window of the left rear door, apparently pierced by a bullet.
Glass splinters were scattered inside the car and on the pavement at both sides of the car. On orders of
Chief Insp. Villena, PO2 Daganta and PO1 Francisco assisted by a certain Cesar Espiritu, immediately
brought the victim to the Quirino Memorial Hospital in Project 4, Quezon City. SPO2 Magundacan was
instructed to stay behind to cordon the area for the start of the investigation while Chief Insp. Villena went
to their station to get his camera. [5] After ten (10) minutes, Chief Insp. Villena returned and took pictures of
the crime scene, and also of the victim at the hospital. [6] SPO2 Magundacan was able to pick up several
spent shells and two (2) slugs, apparently fired from .45 and 9 mm. pistols. [7] A sketch was prepared by
PO2 Daganta who also interviewed some of the witnesses present at the crime scene. [8] The spot report and
list of recovered items (including a Philippine Military Academy gold ring on which was engraved the name
"Rolando N. Abadilla") were later prepared by SPO2 Magundacan at the police station. [9]
On the same day, witnesses Cesar F. Espiritu (who was driving his car ahead of the victim), Aurora Urbano
(Metro Aide), Ani C. Icot (house gardener of the Abadilla family, Freddie Alejo (security guard posted at
Eliscon Electrical Supply store located at 211 Katipunan Avenue) and Minella Alarcon (college professor at
Ateneo de Manila University) gave their respective statements before the Criminal Investigation Division of
the Central Police District Command (CID-CPDC), PNP-National Capital Region (NCR) at Camp Karingal,
Sikatuna Village, Quezon City, while the statement of Merlito Herbas (security guard posted at the Blue
Ridge Realty Corporation located at No. 219 Katipunan Avenue, Quezon City) was taken at Station No. 8,
CPDC at P. Tuazon Blvd., Proj. 4, Quezon City.[10]
Based on their accounts, the black Honda Accord with Plate Number RNA-777 was caught in traffic while

traversing Katipunan Avenue going to Santolan at past 8:00 o'clock on the morning of June 13, 1996. While
on a stop position, four (4) men armed with handguns surrounded the said car and fired several successive
shots at the man inside it. One (1) of the men who were positioned at the left side of the car opened its
door and took something inside. He grabbed the victim by the neck and dropped his body down towards the
pavement at the left door. When there were already several people who had come out to see what was
happening, one of the suspects shouted, "Walang gagalaw...Dapa!"
Minella Alarcon, who was then with her son-in-law on board her white KIA Pride, was following the victim's
car (at other side or diagonal line) at the time of the incident. After the shooting, two (2) of the armed men
who fired at the victim's car approached their car and pounded at it saying "Baba...Baba!" Terrified, she and
her son-in-law got off and crawled towards the side of the street. The assailants then boarded the KIA Pride
and went away to the direction of an alley along Katipunan Avenue. Her car was later recovered, as it was
found abandoned along Aguinaldo Street near the corner of J.P. Rizal Street, Project 4, Quezon City, still with
bloodstains on the car door.[11]
The victim was pronounced dead on arrival at the hospital. The victim's identity was confirmed by Susan
Abadilla who had rushed to the hospital. Chief Insp. Villena escorted her in bringing the victim's body to the
PNP Crime Laboratory in Camp Crame for the autopsy requested by the CPDC, PNP-NCR, Camp Karingal. [12]
From the testimony and medico-legal report of Dr. Jesusa N. Vergara, it was disclosed that the victim died of
hemorrhage as a result of multiple gunshot wounds, mostly in the head and chest, and also sustained
abrasions, contusions, lacerated skin, hematoma and incised wounds or cuts in the skin caused by glass
splinters.[13]
Records indicate that immediately after the incident, elements of the CPDC, PNP-NCR at Camp Karingal were
already coordinating with investigators of Station 8-CPDC who had turned over to said office the evidence
gathered and referred the witnesses present at the crime scene. [14] As a result of follow-up operations, Joel
de Jesus, alias "Tabong," was apprehended on June 19, 1996 at his house at Dahlia St., Fairview, Quezon
City. He executed his Sinumpaang Salaysay dated June 20, 1996 and Karagdagang Sinumpaang
Salaysay dated June 21, 1996.[15]
In his first statement, Joel de Jesus narrated that on June 13, 1996 at 6:30 in the morning after parking his
tricycle at the corner of Regalado and Camaro Streets, Fairview, he was fetched by Lorenzo "Larry" delos
Santos who was his neighbor at Ruby St. Larry was accompanied by his nephew Ogie, and a certain "Tisoy"
who drove the owner-type jeep. Larry told him they were going to kill a big-time personality ("may titirahin
na malaking tao"), whose name was Abadilla, and that they were going to ambush the latter at Katipunan
Avenue. The ambush would be carried out by Joel, Larry, Tisoy, Ram (de Jesus), Cesar who was a
policeman, and four (4) others. That same morning, they proceeded to Katipunan Avenue on board Larry's
owner-type jeep without a plate and a Mitsubishi L-300 van. They carried .45 and 9 mm. pistols; Joel used
a .38 caliber revolver. According to Joel, he only acted as lookout; Lorenzo, Ram and Cesar were the ones
who fired shots, while Tisoy focused on a security guard at a store. After the shooting, they separated ways:
the owner-type jeep he was riding in headed towards Santolan; Cesar's group split so that three (3) of them
rode the L-300 van and the three (3) others boarded a car stolen from a woman driver. Upon reaching
Commonwealth Avenue and Tandang Sora, they stopped at Glori Supermarket where all the firearms used
were returned to the group, including the revolver earlier given to Joel. It was already dusk when Lorenzo
dropped him off at the tricycle parking area at Camaro St. [16]
Joel further stated that the ambush-slay of Abadilla was planned by the group three (3) days before, when
they met at the house of Ram de Jesus also in Fairview near his house. Although he did not know the
identity of the person who masterminded the ambush-slay of Abadilla, he described the mastermind as the
one (1) who opened Abadilla's car and pulled Abadilla from the inside of the car, and he was also the one (1)
who drove the L-300 van. Lorenzo told him he should not worry because Lorenzo would take care that he
would be compensated for his participation. When they reached Katipunan Avenue, they alighted from their
respective vehicles to wait for Abadilla. The L-300 van where the mastermind and Cesar rode was just
behind Abadilla's car. There was no more order given to fire because when traffic stopped the vehicles on the
road, those in the L-300 van just got down, positioned themselves and fired upon Abadilla. The mastermind
not only fired at Abadilla from outside the latter's car, he even made sure Abadilla was dead, as half of his
body went inside the car, firing again at Abadilla before finally dropping him to the ground. Joel added that
he just remained silent after the incident, for which he did not earn anything and was threatened by one (1)
of those who were in the L-300 van whose name he did not know.[17]
In his second statement, Joel pointed to his cohorts in a police line-up inside the CID-CPDC, PNP-NCR, Camp
Karingal, Quezon City where he positively identified Rameses de Jesus ("Ram"), Cesar Fortuna, Lenido

Lumanog and PO2 Romeo Costibolo as among those who participated in the ambush-slaying of Abadilla on
June 13, 1996.[18]
The afore-named suspects identified by Joel were apprehended during further follow-up operations
conducted on June 20, 1996 by "Task Force Rolly" subsequently formed by the PNP after the lead initially
provided by him. As mentioned in the Joint Affidavit executed by Police Senior Inspector (P/Sr. Insp.)
Ronello N. Navarro, Police Inspector (P/Insp.) Ferdinand A. Marticio, SPO4 Wilfredo G. Galvan and SPO1
Allan dela Cruz dated June 21, 1996, as early as June 15, 1996, or two (2) days after the ambush-slay of
Abadilla, their investigation already established the identities of a number of suspects through photo files
and forensic sketches of suspects provided by eyewitnesses. [19] Said arresting officers were also able to
seize certain firearms and other pieces of evidence, to wit:
4. That after SPO2 cesar Fortuna revealed the whereabouts of the slain victim's stolen cal .45 pistol, we
conducted a follow up in a gunsmith located at Sampaloc, Manila on 21 June 1996, from where we held for
investigation, one DANTE MONTEVIRGEN y VILLANUEVA, 37 years old, married, self-employed/gunsmith, native of Pula,
Oriental Mindoro and with given address at 1412 Riverside Street, Commonwealth Avenue, Bgy. Holy Spirit,
Quezon City.
5. That upon confrontation said subject person surrendered two (2) cal .45 pistols whom suspect Cesar
Fortuna allegedly brought to him for repair/tampering of serial numbers, to wit:
(a) 1- COLT MARK IV cal .45 pistol Gov't Model
SN-66B5574; and
(b) 1-COLT MARK IV cal .45 pistol Series 70
SN-647048.
6. On the same day, 21 June 1996, after SPO2 Cesar Fortuna expressed willingness to surrender the
motorcycle allegedly used in casing and surveillance upon the deceased victim, we took said motorcycle at
Gate 2 of Camp Crame along Santolan Road (Col Bony Serrano Avenue), Quezon City, to wit:
1- Unit, KAWASAKI motorcycle without license plate, chassis No. C-5121696, Motor No. 658 122951
7. That the aforenamed subject person together with the property/articles recovered were turned over to
the Police Headquarters for investigation and appropriate action;
x x x[20]
With respect to Lorenzo delos Santos, he also executed a statement dated June 21, 1996 admitting his
participation in the ambush-slay of Abadilla on June 13, 1996, and pointing to Rameses de Jesus as the
mastermind and also named the following suspects: "POGS" whose real name was Lenido Lumanog, Joel de
Jesus alias "Tabong," Cesar Fortuna and four (4) others whom he did not know. He said that he was just
brought along by Rameses de Jesus and was further threatened that if he would not go with them, they
would kill his family. He claimed that he merely acted as a lookout. As similarly recounted by Joel, Lorenzo
stated that the group used an L-300 van, a car and a jeep in going to Katipunan Avenue in the morning of
June 13, 1996. Joel had a .45 cal pistol, Cesar a .38 revolver, Lenido a 9 mm., a certain Manuel dela Rosa
who did not get out of the vehicle, carried a .38 cal revolver, and Lorenzo, also a .38 cal revolver. Rameses,
Joel, Cesar and Lenido were the ones who shot Abadilla. After the shooting, the group left him behind and
he just walked on the street before taking a taxi ride to the Bureau of Customs. Lorenzo maintained that he
was not given any money. He was just picked up from his house at Ruby St., Fairview Subdivision by
Rameses, Lenido, Cesar and Joel. He was made to board Rameses' car with a warning that if he did not join
the group, they would throw a hand grenade at his family.[21]
In his Karagdagang Salaysay dated June 21, 1996, security guard Freddie Alejo positively identified Joel and
Lorenzo during a police line-up. Alejo confirmed these two (2) as the persons he saw from his guard post
walking to and fro before the shooting incident. They were also the ones who shouted that no one (1)
should interfere at the time the four (4) armed men were firing shots at Abadilla. [22]
SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Lorenzo delos Santos y Dela Cruz, Lenido

Lumanog y Luistro, Joel de Jesus y Valdez and Arturo Napolitano y Caburnay were charged in Criminal Case
No. Q-96-66679 with theft of the alleged gun owned by the late Abadilla (Colt Mark IV cal .45 pistol SN66BS574), a gold-plated Omega wristwatch and a wallet containing an undetermined amount of cash plus
calling cards and other important papers, all of which were supposedly stolen by them after killing Abadilla.
[23]

On the other hand, Lorenzo delos Santos y Dela Cruz, SPO2 Cesar Fortuna y Abudo and Rameses de Jesus y
Calma were respectively charged with illegal possession of firearms (Presidential Decree No. 1866) in
Criminal Case Nos. Q-96-66680, Q-96-66682 and Q-96-66683.[24]
All the seven (7) named accused in Criminal Case No. Q-96-66684 were indicted for Murder under the
following Information:
That on or about the 13th day of June, 1996 in Quezon City, Philippines, the above-named accused,
conspiring together, confederating with several other persons whose true names, identities, whereabouts
have not as yet been ascertained and mutually helping with one another, did then and there, wilfully,
unlawfully and feloniously with intent to kill, with evident premeditation, treachery, in consideration of a
price, reward or promise, and taking advantage of superior strength, attack and employ personal violence
upon the person of COL. ROLANDO ABADILLA y NOLASCO by then and there shooting the latter with the use
of different kinds of firearms, hitting him on the different parts of his body, thereby causing the instant and
immediate cause of his death, to the damage and prejudice of the heirs of the said COL. ROLANDO
ABADILLA y NOLASCO.
Contrary to law.[25]
When arraigned, all the accused pleaded not guilty to the murder charge.
In view of the dismissal of the criminal cases for illegal possession of firearms (P.D. No. 1866) and theft
(Criminal Case Nos. Q-96-66679, Q-96-66680, Q-96-66682 and Q-96-66683), [26] our discussion of the
proceedings before the trial court will be confined to the case for murder against Fortuna, Lumanog, Joel de
Jesus, Rameses de Jesus and Santos.
Evidence for the Prosecution
The prosecution presented the testimonies of police officers who conducted the investigation and follow-up
operations up to the actual apprehension of suspects in the killing of Abadilla: SPO2 Wahab Magundacan,
PO2 Gerardo Daganta, Maj. Edward Villena, P/Insp. Rogelio Castillo, SPO2 Jose Garcia, Jr., SPO3 Romeo De
Guzman, SPO2 Pio Tarala, Atty. Florimond Rous, P/Sr. Insp. Jose B. Macanas and P/Insp. Ferdinand Marticio.
The testimonies of P/Insp. Castillo, SPO2 Garcia, SPO2 Tarala, Atty. Rous and P/Sr. Insp. Macanas were
given in court in the light of serious allegations of torture, forced confessions and violations of constitutional
rights raised by the accused, which were widely reported in the media and brought before the Commission
of Human Rights (CHR) and eventually to Amnesty International-USA.
P/Insp. Castillo, testifying on cross-examination, admitted that accused Joel de Jesus was apprehended by
members of his squad led by Lt. Rodolfo on June 19, 1996, but said suspect was not presented to him until
noontime of the next day, June 20, 1996. He did not ask his men if Joel had been subjected to investigation
and if he was, whether he was assisted by counsel. He explained that there were still then follow-up
operations in which they needed Joel. As for the press conference wherein Joel was presented together with
then Secretary Barbers and General Recaredo Sarmiento, he learned about it only later.[27]
The witness declared that the constitutional mandate and requirements under Republic Act (R.A.) No. 7438
had been complied with because he secured the services of a counsel during the interrogation of then
suspect Joel de Jesus when his sworn statement was taken on June 20, 1996. He had informed the said
suspect of his right to counsel in the presence of CID personnel and when he brought him to the office of
Atty. Confesor R. Sansano of the Integrated Bar of the Philippines (IBP) located at the second floor of the
Hall of Justice, Quezon City Hall. Asked why it occurred to him to bring the suspect to the IBP, the witness
replied that he believed IBP was a private, not a government, institution. He also asked Joel -- who was
allowed to make a telephone call, although he was not aware if Joel made any such call -- whether he had
his own lawyer. He recalled asking Joel if he was willing to go with them to the City Hall, because he had
asked to secure the services of counsel. There had been instances when the IBP lawyers assisted some
suspects brought by the CPDC. The CPDC provided the typewriter and papers to be used and in this case,

Atty. Sansano accommodated them in using the facilities of the IBP Chapter office. Joel executed his
statement, with SPO2 Jose L. Garcia, Jr. propounding the questions. They started taking his statement at
1:10 p.m. of June 20, 1996 at Room 235, IBP Office, Quezon City Hall of Justice in the presence of Atty.
Sansano and a number of people inside said office.[28] He was apprised for the first time about a suspect
(Joel) who was just apprehended when he called their office upon arriving home on the night of June 19,
1996. The information was given to him by the desk sergeant and thereupon he gave instruction to contact
the witness and include that suspect in a line-up. He then informed their Chief regarding this development.
When he asked for the whereabouts of this suspect, he was given the reply that the suspect was still with
their squad conducting follow-up operations.[29]
P/Insp. Castillo recounted that he reported to the office at 8:00 o'clock in the morning of June 20, 1996 and
Joel was actually presented to him by Lt. Rodolfo at 10:00 o'clock that same morning, in the presence of
CID men. He told Joel he was being implicated in the case, to which Joel replied "Sir, lookout lang naman
ako, sir." This initial questioning of Joel took place at the investigation room of the CID, where there were
other private complainants talking to investigators, and there were a number of policemen around who were
not in uniform. He advised Joel that he was free to use the telephone, and although Joel had no relatives
present at that time, he warned Joel that his case was serious and he must seek the services of counsel. He
first thought of the legal assistance provided by the City Attorney, then that by the Public Attorney's Office
(PAO), and lastly by the IBP. Between 12:30 and 1:00 p.m., he and his men, together with Joel in a separate
vehicle, left the CID to go to the Quezon City Hall. They scouted for a lawyer and inquired from the IBP
chapter office. They found Atty. Florimond Rous and the lady counsel at a hearing in a courtroom. Atty.
Rous advised them to wait for Atty. Sansano, who apparently was the head of the IBP chapter office. He
was moving in and out of the office while the statement of Joel was being taken in the presence of Atty.
Sansano. Before that, Atty. Sansano talked to Joel alone, after which they were called in again for the taking
of the statement at 2:00 p.m. They left City Hall at past 4:00 or 5:00 that afternoon. [30]
SPO2 Garcia, Jr. testified that he was a member of the CID-CPDC at Camp Karingal. On June 20, 1996
when he reported for duty, he was assigned by P/Insp. Castillo to take down the statement of Joel de Jesus.
While still inside the office of P/Insp. Castillo, he asked Joel if his statement was voluntary and what kind of
statement he was going to give. Joel answered that his statement was voluntary and he wanted to be
included as state witness in the Abadilla case. Together with Joel, SPO2 Tarala and SPO1 Edilberto Nicanor,
he took lunch at the back of their office before proceeding to the Quezon City Hall at around 12:00 o'clock
noon, with P/Insp. Castillo who said that Joel's statement would be taken infront of a counsel. At the Hall of
Justice lobby, P/Insp. Castillo instructed them to guard Joel as he would look for a counsel. After more or
less 25 to 30 minutes, P/Insp. Castillo came back and they proceeded to the second floor of the office of the
IBP chapter. They were met by a lady secretary, and afterwards he saw P/Insp. Castillo talking to a lawyer
whom he came to know as Atty. Rous. It seemed Atty. Rous could not decide on what P/Insp. Castillo told
him and said he (Atty. Rous) would first ask the permission of Atty. Sansano. They waited for Atty. Sansano,
who arrived in about twenty (20) to twenty-five (25) minutes. Atty. Sansano and P/Insp. Castillo talked for
about five (5) minutes and thereafter, Atty. Sansano requested them to leave, because he would talk
personally to Joel. Atty. Sansano and Joel talked inside the room for five (5) to ten (10) minutes.
Thereafter, he, P/Insp. Castillo, SPO2 Tarala and SPO1 Edilberto Nicanor went inside the room and that was
the time Atty. Sansano announced that Joel was ready for the taking of his statement. [31]
SPO2 Garcia, Jr. further testified that he took down the statement of Joel using a typewriter in the office of
Atty. Sansano. He brought said typewriter near the table of Atty. Sansano and a chair to sit on beside Joel.
Joel was seated infront of the desk where Atty. Sansano was sitting. After completing the taking down of the
statement, he gave it to Joel and asked the latter to read it. Joel read the typewritten statement and when
he finished reading, he gave the same to Atty. Sansano. Atty. Sansano read all the contents of the document
and asked Joel if he understood it, to which he answered "Yes, sir." Atty. Sansano then asked Joel if he was
willing to sign the statement, to which the latter again replied in the affirmative. Joel signed the statement
in his presence and also that of Atty. Sansano, who likewise signed it in his presence. SPO2 Garcia, Jr. also
identified his own signature and that of SPO1 Nicanor who signed the statement in his presence. From the
office of Atty. Sansano, they proceeded to the fourth floor in the office of Prosecutor Ramon Gerona before
whom Joel subscribed his statement. After reading the statement, Fiscal Gerona explained to Joel in Tagalog
the consequences of the statement he executed. Joel was calm and said he was only a lookout in the
crime. Earlier, before propounding questions to Joel at the office of Atty. Sansano, the latter addressed Joel
in Tagalog: "Joel naiintindihan mo na ang mga itinatanong sa iyo ng mga pulis? Ito ba sarili mo o boluntaryo
ba `tong statement mo na ito hindi ka ba nila tinakot, sinaktan o anupaman?" While Joel was answering his
questions, Atty. Sansano halted him from typing the answer given by Joel to ask the latter if he could
understand the question propounded to him. The witness was also asked to identify Joel de Jesus inside the
courtroom.[32]

On cross-examination, SPO2 Garcia, Jr. affirmed that before the taking down of the statement, he had
explained to Joel the consequences of his being a state witness, in accordance with the instruction of P/Insp.
Castillo. He specifically explained to Joel: "Itong statement na ito ay puwedeng gamitin laban o panig sa
`yo sa alinmang hukuman dito sa Pilipinas. Ikaw ba ay nakahandang tumestigo sa mga sasabihin ng tao
dito sa statement mo na ito na magiging laban sa kanila." Joel told him, "Yes, sir." P/Insp. Castillo had told
him that Joel was to turn state witness before the latter was brought to the IBP Office. When P/Insp.
Castillo had returned to the lobby of the Hall of Justice, he told them that the only person present who
would act as Joel's counsel would be located at the IBP Office, and Joel would be brought there. It was his
first time to meet Atty. Sansano. As to whether Joel was also assisted by Atty. Rous when he was
investigated on June 21, 1996, the witness said he did not know.[33] Regarding the portion of the statement
dated June 20, 1996 wherein he asked Joel about a pending case against him, which Joel identified as a rape
case, he denied having knowledge of any such pending case before the taking of the statement. He also did
not ask Joel if he already had a counsel, or if Joel already knew Atty. Sansano. Another lawyer, Atty. Rous,
was actually present when he was taking Joel's statement at the office of Atty. Sansano, who was also
present throughout the time he was taking down the statement of Joel. He did not hear Joel mention the
name of another lawyer to Atty. Sansano, specifically that of Atty. David as suggested by defense counsel. [34]
SPO2 Tarala testified that as a member of the PNP Station in Kamuning, Quezon City, assigned at the CID,
he came to investigate accused Lorenzo delos Santos on June 21, 1996. On that day, after lunch, he was
instructed by P/Insp. Castillo to proceed to the Public Assistance and Reaction Against Crime (PARAC), Dallas
Bldg. in Tomas Morato Avenue, because one (1) of the suspects in the Abadilla slaying was apprehended by
the PARAC follow-up team and was supposed to give his statement. So he went there together with SPO1
Primo Borito and PO3 Ramil Hatchero. Upon arriving at said office, he met P/Sr. Insp. Macanas, who called a
person he introduced as Lorenzo delos Santos. Before taking down the statement of Lorenzo, he advised the
latter of his rights under the law, warning that any statement he would make could be used against him in
any court of law, so that he had the right not to answer any question which to his mind would incriminate
him. Lorenzo responded by saying that he wanted to give a statement and to be a state witness. When
Lorenzo asked if he could use a telephone at the information table, he said yes. Lorenzo then called his
office because he was a customs broker, and also called up a relative who was a certain Col. Sala (Col.
Milagros Sala), a Quezon City police official. He told Lorenzo that he should have a lawyer of his choice
during the taking down of his statement. He prodded Lorenzo to call the lawyer, whom Lorenzo knew to be
always at the City Hall. They then proceeded to the Quezon City Hall to look for that lawyer at the Office of
the City Attorney. However, Lorenzo was not able to find said lawyer; he asked somebody (a woman) who
referred them to the Hall of Justice. After failing to find the person Lorenzo was looking for to be his
counsel, an old man, a vendor suggested to them to go upstairs at the IBP Office. The lady secretary of the
IBP chapter office introduced them to Atty. Florimond Rous, who then asked him and his companions to step
out of the room so Atty. Rous could talk to Lorenzo. Atty. Rous and Lorenzo talked for ten (10) to fifteen
(15) minutes, after which they were called again to enter the office. His two (2) companions were left
outside and he was told by Atty. Rous that he had already apprised Lorenzo of his rights, but Lorenzo still
wanted to give a statement.[35]
Upon the instruction of Atty. Rous, he took down the statement of Lorenzo, the three (3) of them in one (1)
corner of the room while over at the receiving area there were the secretary and a lady lawyer. The
statement of Lorenzo was in Tagalog, typewritten in question-and-answer form. Each time after he had
asked a question, Atty. Rous would in turn ask Lorenzo if he wanted to answer it, and Lorenzo would answer
yes. He was at the typewriter, and the two (2) (Atty. Rous and Lorenzo) were infront of him, seated across
each other. The taking of the statement started at about 3:10 in the afternoon and was finished in more
than one (1) hour. He asked Lorenzo to read first his statement, and then Atty. Rous read it also. Next,
they went up to the office of Fiscal Refuerzo, but was referred by the secretary to the inquest fiscal on duty,
Fiscal Ben dela Cruz. At his office, Fiscal dela Cruz asked Lorenzo to stand infront of him and asked if the
statement was voluntarily given by him, if what was contained therein was true, and if he was ready to
swear before him. Lorenzo answered yes, and the subscribing of his statement before Fiscal dela Cruz was
also witnessed by Atty. Rous.[36] Lorenzo had earlier told him and his companions at the PARAC office that
his participation in the ambush-slay of Abadilla was that of a lookout, and that he was only forced to join the
group because of the threat to his family.[37]
SPO2 Tarala admitted that the first time he went to the IBP Office at the Hall of Justice was on June 20,
1996 when SPO2 Garcia, Jr. took the statement of Joel de Jesus. Since only SPO2 Garcia, Jr. and Joel stayed
inside the room, he and his companion just walked around. [38]
Atty. Rous testified that he was one (1) of the free legal aid counsels of the Free Legal Aid Committee of

the IBP-Quezon City Chapter. One (1) of their primary duties was to assist indigents in their cases, and
aside from this, they were also tasked to assist the various suspects during custodial investigations in the
various investigations of different agencies, such as the CIS and PNP. He recalled handling at least ten (10)
to fifteen (15) of such custodial investigations. On June 21, 1996, he assisted a person by the name of
Lorenzo delos Santos accompanied by a police investigator (whose name he could no longer remember)
from the Central Police District, who told him that the said suspect was willing to make a confession and
asked if he could assist him during his custodial investigation. He identified Lorenzo inside the courtroom. [39]
The police investigator had informed him of the charge against Lorenzo, which was the killing of Abadilla. [40]
Before the start of the investigation of Lorenzo, Atty. Rous related that he asked the policeman to leave him
and Lorenzo. When the investigators were gone, he asked Lorenzo to remove his shirt so he could see if
there were any tell-tale marks of any harm or specific mark upon him. Having satisfied himself that there
were no such mark on the suspect's body, Atty. Rous began interviewing him. He asked Lorenzo if he was
willing to execute a confession, and Lorenzo answered he was willing to do so. He then asked Lorenzo if he
was willing to have him as his counsel. Evidently, Lorenzo wanted him to be his counsel during the custodial
investigation for the taking of his statement. Convinced that Lorenzo was giving his statement without any
pressure or force, they started the investigation proper. The police investigator who accompanied Lorenzo to
their office was the one (1) who had propounded questions in Tagalog and typed the answers given by
Lorenzo also in Tagalog. He was just within hearing distance and was present during the entire time of the
taking of Lorenzo's statement. Afterwards, he let Lorenzo read the typewritten statement, and he asked
Lorenzo if those were the questions given to him and the answers he had given, to which he replied in the
affirmative. He further asked Lorenzo if he was willing to sign the statement without pressure, and Lorenzo
said he was willing to sign the same. He asked Lorenzo to sign his statement before the office of Prosecutor
Ben dela Cruz. Prosecutor dela Cruz first read the statement and then asked Lorenzo if he was willing to
sign the same, and he answered in the affirmative. Lorenzo signed the statement in their presence; he and
Prosecutor dela Cruz also signed it.[41]
Atty. Rous further testified on cross-examination, that after the police investigator and Lorenzo had left, a
few minutes later, some other investigators arrived at their office, bringing along Joel de Jesus. This Joel de
Jesus had given a statement the previous day, June 20, 1996, and he was told that Joel would be giving this
time a supplemental statement. The investigators apprised Joel of his constitutional rights before the taking
down of his statement. He was not sure if Lorenzo and the police investigator had actually left already, and
he could not remember exactly what transpired at this point. The defense counsel noted the absence of the
word "competent" to qualify the word "counsel" in the preliminary portion of Lorenzo's statement. Atty. Rous
described the answers given by Lorenzo as spontaneous, and he did not recall any hesitancy on the part of
the latter. He maintained that he found no contusions or abrasions on Lorenzo's body.[42]
P/Sr. Insp. Macanas testified that he was then assigned at the PARAC as its operations officer. They were
closely coordinating with and sharing evidence for case build-up operations with the CPDC in the
investigation of the killing of Abadilla. On June 19, 1996, at around 3:00 o'clock in the afternoon, they were
directed to proceed to the CPDC headquarters in view of an information that a certain suspect alias "Tabong"
was already located while repairing his tricycle somewhere in Fairview, during which he was identified by an
eyewitness, security guard Alejo who went there with CPDC operatives. At the time this radio message was
received, they were within the vicinity of Fairview, and the CPDC gave the signal for them to accost said
suspect. He was present when "Tabong," who was later identified as Joel de Jesus, was arrested by the joint
elements of the CPDC and PARAC. Joel was turned over to the CID-CPDC at about past 4:00 p.m.
Subsequently, their superior, P/Sr. Supt. Bartolome Baluyot, informed them of revelations given by Joel, for
which they were called in again for joint follow-up operations. They brought Joel to Fairview along Ruby St.
where Joel's supposed companions, namely: one alias "Ram," Lorenzo delos Santos, Ogie and one (1) alias
"Cesar," could be found. Joel first pointed to the house of Ram (Rameses de Jesus), but they did not find him
there; instead they found a man named Cesar Fortuna, whom Joel pointed to infront of said house. They
immediately apprehended Fortuna and identified themselves. He informed Fortuna that he was being
implicated by Joel in the killing of Col. Abadilla. Fortuna introduced himself as a policeman assigned with the
Traffic Management Command (TMC). As a standard procedure, they informed Fortuna of his constitutional
rights and then brought him to the CPDC for investigation. At the time, Fortuna had a gun (caliber .38)
tucked in his waist, which they confiscated.[43]
P/Sr. Insp. Macanas further testified that in the course of their follow-up operations, with information being
provided by Joel, they were also able to arrest another suspect alias "Larry," whom they met at a dark alley.
Upon being pointed to by Joel, they apprehended Larry who was later identified as Lorenzo delos Santos,
frisked him and found in his possession a cal .38 Smith and Wesson, for which he could not present any
license or document. They brought Lorenzo to the CID-CPDC. He identified both Lorenzo and Fortuna inside

the courtroom.[44] On cross-examination, the witness admitted they had no warrant of arrest when they went
to Fairview to locate the suspects, as it was a "hot person" case ordered by their superior and requiring the
immediate arrest of suspects identified by witnesses like, in this case, Joel. Joel had admitted to the CIDCPDC investigators his participation in the Abadilla killing. After accosting Joel at Camaro St., whom they
identified through a photograph, and before taking him to the CID-CPDC, he informed Joel that he was
identified as one (1) of the suspects in the killing of Col. Abadilla; that he had a right to remain silent; that
anything he will say could be used against him; he had the right to counsel of his own choice, and if he
could not afford one, the government would provide him. As to Lorenzo, he was arrested past midnight of
June 20, 1996; they had brought Joel along while moving to locate Lorenzo.[45] He was just at the back of
those operatives who actually arrested Lorenzo.[46]
The principal witness for the prosecution was Freddie Alejo, who testified that as a security guard
employed by Provider Security Agency, he was then assigned at 211 Katipunan Avenue, Blue Ridge, Quezon
City. On June 13, 1996, he reported for duty at 7:00 o'clock in the morning. By 7:30 a.m., he noticed two
(2) men walking back and forth infront of his post. He was shown by the prosecutor some photographs
taken of the parking area he was then guarding, his guard post beside the building and the street infront of
said building (Exhibits "G", "H", "I" and "J"[47]).
Alejo recounted that there was a man riding in a black car who was shot by four (4) persons infront of the
building he was guarding. The car was in the middle lane of the road, and the car's specific location was
found in one (1) of the photographs (Exhibit "H-4" [48]). One (1) of the two (2) persons he earlier saw
walking back and forth in front of him pointed a gun at him (the position of said man was marked as Exhibit
"H-5"[49]). That man was holding a short gun and he told Alejo to come down ("Baba!"), but he did not
budge. He then saw one (1) of the assailants (No. 1 in Exhibit "H" [50]), the one (1) standing on the left side
of the car (left front door), grab the victim by the neck, get the clutch bag of the victim inside the car, pull
said victim out of the car, and drop him on the road. He then heard another shot coming from said attacker
(No. 1). Another man (No. 5 in Exhibit "H"[51]) shouted: "Dapa...walang makikialam!" and the rest of the four
(4) men (marked as Nos. 2, 3 and 4 in Exhibit "H"[52]) faced him (witness Alejo). Next, the companion of No.
5, who was earlier walking back and forth infront of him (marked as No. 6 in Exhibit "H" [53]), pointed a gun
at him. This time, he did come down, lowering his body and bowing his head inside the guardhouse. The
witness identified the suspects inside the courtroom as the persons he saw and marked as No. 5 (Joel de
Jesus) the first one who pointed a gun at him shouting "Baba ka!"; No. 1 who grabbed the victim, got his
clutch bag and pulled him out of the car (Lenido Lumanog); No. 2 (Rameses de Jesus); No. 6 the
second person who pointed a gun at him (Lorenzo delos Santos); No. 4 (Augusto Santos) and No. 3
who was positioned at the right front door of the victim's car (Cesar Fortuna). Nos. 1 and 3 (Lumanog and
Fortuna) were the ones who shot the victim with short firearms, while No. 2 (Rameses) was just standing
and facing the victim with a gun in his hand, and No. 4 (Augusto) was also just standing facing the driver
and holding a short gun. It was probably less than a minute when the gunfire stopped, and he stood up at
his guard post. The assailants were no longer in sight and he saw the car's window shattered. He identified
the victim's black car as shown in photographs (Exhibits "A-1" to "A-4" [54]).[55]
Alejo further testified that he was one (1) of those asked by the policemen who arrived regarding the
incident. He was told to go to Station 8, which was just near the place. At Station 8, another security guard
of an adjacent building was also being investigated. Thereafter, the police officers brought him to Camp
Karingal, along with the other security guard. [56]
On cross-examination, Alejo described his guard post as elevated; and two (2) arm's length on the left and
right side, there was an alley just beside the guard post which was at the corner.[57] The victim's car was
infront of the building he was guarding, at a slightly slanted direction from it ("Lihis po ng konti"). His view
was toward the direction of the front door of the car (rear end). From where he was at the time, the car
was at a distance of more or less ten (10) meters. The first time one (1) of the suspects pointed a gun at
him, he was not scared. He saw four (4) men standing around the victim's car, two (2) on the left side, and
two (2) on the right side. He saw only two (2) of them (the ones at the front left and right sides of the car)
shooting at the car; they were carrying short firearms. One (1) of these two (2) got the clutch bag (at the
left front side of the car), grabbed the victim by the neck and shot him once before dropping him down the
road. Even if he could not see the gun when that assailant pulled the victim from the car, he knew that the
victim was shot again, because he saw a gun smoke just beside the left side of the car where the victim was
dropped. The second man who pointed a gun at him shouted "Dapa!" and thereupon his companions (the
ones at the right rear side, left rear side, and front right side) faced him for less than a minute. Because at
that precise moment the gun was not yet poked at him, he was able to recognize their faces. When finally
the gun was pointed at him, he became nervous and bowed down his head inside the guard house. The
color of the clutch bag taken from the victim was black. He could see the inside of the car from his guard

post because the car's glass window was not tinted and, besides, his position was elevated or higher than
the height of the car.[58] He confirmed the contents of his Sinumpaang Salaysay (Exhibit "L") before
policeman Edilberto Nicanor on June 13, 1996 taken at the CID-PNP, Camp Karingal at 1:55 p.m. or barely
four (4) hours after the shooting incident.[59]
Alejo further testified on cross-examination that on June 19, 1996 at around 2:00 o'clock in the afternoon,
he was fetched by four (4) policemen at his agency in Monumento and they told him they were going to
Fairview. Before this, in the afternoon of June 18, 1996, they showed him a picture of a man wearing
eyeglasses, but he told them he would not point a man in photographs, but would like to see the man in
person. That was the second time he saw Joel de Jesus since the shooting incident on June 13, 1996. He
executed a supplemental statement on June 21, 1996 when he identified said suspect in a police line-up. [60]
On September 26, 1996, the trial court conducted an ocular inspection of the place where the shooting
incident took place, in the presence of the prosecutors, defense counsel, Alejo and Maj. Villena. Alejo was
asked to demonstrate his exact location, the relative positions of the assailants and the victim's car, and the
entire incident he had witnessed in the morning of June 13, 1996. The Presiding Judge who took the same
position of Alejo in the guardhouse made the following observations:
COURT:
From this position, the Presiding Judge can see the car very clearly even if the car would be moved back by
another segment of the cement or even if it is forwarded by another segment also, as segment can
accommodate one car of the likes of Honda Accord and the Court observes that from the guard post the
faces of the persons beside the car are very clear.
xxx
COURT:
The Court observed that from where the witness Alejo was he can still see the whole car as it has been
moved back per the directive of Major Villena.
xxx
COURT:
The Court adds that from the position of the witness, Freddie Alejo, the Court can still see faces behind the
car which can accommodate another car.
xxx
COURT:
The front right window has been rolled down and also the back right window of the car have been rolled
down with the left front door opened, the Court can observed the two (2) front seats particularly the upper
portion, meaning the head rest and the back rest, half of the back rest, all the head rest can be seen.
xxx
INTERPRETER:
(measuring the distance from the guardhouse to the black car).
The measurement from the foot of the guardpost up to the right front door of the black car is fifteen (15)
meters.
xxx
INTERPRETER:

(Measuring the distance between the bodega to the black car)

The measurement from the front portion of the bodega (papaya) to the side of the black car is 11.8 meters.
x xx
INTERPRETER:
The measurement...the distance from where suspect No. 6 was standing to the guard house when measured
is 7.34 meters, your Honor.
xxx
INTERPRETER:
The distance from where suspect No. 5 was standing up to the guard house is 5.17 meters.
xxx
COURT:
After the demonstration while witness Alejo was demonstrating how [suspect No. 2] got the clutch bag and
how [suspect No. 2] grabbed the neck of the driver of the black car, the Judge was at the guard post and
saw for himself that [Alejo] clearly saw the taking of the clutch bag even if the untinted windows were
closed and the pulling of the driver of the black car.[61]
P/Insp. Castillo, on re-direct examination testified that Atty. Sansano actively assisted Joel de Jesus
during the time the latter's Sinumpaang Salaysay was being taken by SPO2 Garcia, Jr. There were questions
propounded to Joel which Atty. Sansano had told Joel not to answer, and advice was given by said counsel.
They left Quezon City Hall at about 5:00 o'clock in the afternoon and returned to the CPDC headquarters.
He maintained that all the accused were brought before the City Prosecutor for inquest proceedings prior to
the filing of the information in court.[62]
Susan Samonte-Abadilla testified that their family incurred expenses for the burial of her husband, repair
of the Honda Accord and loss of the .45 cal gold cup pistol and Omega watch during the shooting of her
husband. She further testified that she was very shocked and saddened by the tragic death of her
husband. Because she led a practically sheltered life, it was difficult for her, as it was the older children who
were now taking care of their businesses, which were attended to by her husband when he was still alive.
Three (3) of her eight (8) children were still studying (Ana, 14; Nico, 13; and BJ, 10), and one had just
graduated last March 1997.[63]
Merlito Herbas, in his Karagdagang Salaysay dated June 21, 1996, identified Joel de Jesus in a police line-up
at the CID-CPDC, Camp Karingal, as one (1) of those men who shot the victim on June 13, 1996. [64]
However, not having been presented by the prosecution as witness, he testified for the defense declaring
that none of those whom he saw during the shooting incident was present inside the courtroom. He
produced a list of amounts he had received from Mayor Abadilla, totaling P30,000.00 in support of his claim
that Mayor Abadilla did not fulfill his promise to give him exactly the same salary he was receiving as
security guard (P6,000.00 monthly only instead of the P8,000.00 he used to receive as monthly pay),
although he admitted having stayed for free inside the Abadilla compound from July 11, 1996 up to
November 26, 1996. He was later told that he would no longer be presented as witness because the
testimony of Alejo would be sufficient.[65]
Defense Evidence
All the accused raised the defense of alibi, highlighted the negative findings of ballistic and fingerprint
examinations, and further alleged torture in the hands of police officers and denial of constitutional rights
during custodial investigation.
P/Insp. Reynaldo D. de Guzman, firearms examiner and Chief of the Firearms Division of the PNP Crime
Laboratory, testified that he conducted an examination of the slug recovered from the body of Col. Abadilla,
as per request of the CPDC for cross-matching with a bullet also recovered from the body of another

shooting victim, Suseso de Dios, i.e., whether or not they were fired from one (1) and the same firearm. [66]
The result of their microscopic examination was that the aforesaid bullets were fired from the same firearm.
[67]

Dr. Jesse Rey Cruel, medico-legal officer of the CHR, testified that he examined accused Cesar Fortuna,
Rameses de Jesus, Lenido Lumanog on June 25, 1996 and Lorenzo delos Santos on July 3, 1996. His
findings showed that their bodies bore the following injuries: "(1) Fortuna - abrasions on forearm, elbow and
knee; contusions on chest area; and incised wounds on the waist and legs [68]; (2) Rameses - contusions on
chest, abdomen, knee and thigh areas [69]; (3) Lumanog - contusions on abdomen and lumbar region, and a
horizontal lacerated wound on the forehead[70]; and (4) Lorenzo - abrasions on the arms, contusions in thigh
and knee, petechia marks (minute hemorrhages) between chest/abdomen and the penis, discoloration on
right arm, and new scars on left arm, right foot and second toe." [71] All said wounds required not more than
nine (9) days of medical attendance. The defense also presented pictures taken at the time of the
examination.[72] On cross-examination, Dr. Cruel opined that it was possible the injuries could have been
self-inflicted and pointed out that the injury on the forehead of Lumanog was not complained of.[73]
Remedios Dedicatoria, a fingerprint examiner at the PNP Crime Laboratory testified on the results stated
in a Dactyloscopy Report No. F-086-96 comparison of the latent prints lifted from the Honda Accord with
Plate No. RNA-777, Kia Pride PTZ-401 and Mitsubishi Lancer car with the standard fingerprints of the
accused. The only match was found in the specimen fingerprint of Rameses de Jesus with respect to the
fragmentary prints lifted from the Mitsubishi Lancer car. None of the fingerprints of the accused is identical
with the latent prints lifted from the Honda Accord and Kia Pride. [74] On cross-examination, the witness
stated that if a person had touched the car and rubbed it, there would be no fingerprint that could be lifted
therefrom. She also admitted that no latent print was taken from inside the Honda Accord nor was there
any fingerprint taken of the late Rolando Abadilla (only two [2] fingerprints were taken from his car). When
asked if a person opened the car holding only the back portion of the handle, the witness answered that
there would likewise be no fingerprint on the outside of the car.[75]
Joel de Jesus testified that on June 19, 1996, at around 3:00 o'clock in the afternoon, he was at their
street corner fixing his tricycle and was with Arturo Napolitano and Felicisimo Herrera. A van stopped and
six (6) armed men alighted from it, among whom he recognized Antonio Rodolfo, Pio Tarala and Dario
Aasco (whom he came to know when they charged him with rape on January 17, 1994, from which
charge he was acquitted on June 19, 1996). He even greeted said cops, but they forced him into the van,
and handcuffed and blindfolded the three (3) of them. They were brought to a certain house where they
were boxed, kicked and slammed on the wall. When his blindfold was removed, the police officers were
forcing him to admit that he killed Abadilla. Capt. Rodolfo was also there and he later identified the rest of
those who picked him up as Romulo Sales, Lt. Castillo, Bartolome Baluyot, Major Reyes and Catalua.
After he denied having anything to do with the killing, PO2 Tarala tried to suffocate him with a plastic bag.
He could not breathe and lost consciousness. Recounting his ordeal in tears, the witness said that for one
(1) hour his captors repeatedly inserted a plastic bag and boxed him. A younger looking man then slapped
him saying that they had ambushed his father. While detained, he was only given water to drink and not
allowed to contact his relatives. He was asked to sign by Lt. Castillo a seven (7)-page document, torturing
him if he refused to do so. There were already other signatures on the edge and every page of said
document (Sinumpaang Salaysay dated June 20, 1996). He denied the contents of this statement but
admitted that he was brought to the IBP Office, Quezon City Hall. After signing, he heard Lt. Castillo call
somebody saying, "Parating na kami dyan." He was then made to board a vehicle and was taken to the
Quezon City Hall where a man wearingbarong tagalog was waiting, asking if he was Joel de Jesus. When Lt.
Castillo answered in the affirmative, the man just signed the document. He denied having met Atty.
Confesor Sansano, nor was he told of his right to the assistance of counsel; he even told them the name of
his lawyer at that time, but they just said, "Mas marunong ka pa sa amin."[76]
Testifying on cross-examination, Joel insisted that on June 13, 1996, he went home at around 10:00 o'clock
in the evening. He started plying his route at 6:00 o'clock in the morning; he was hired (inarkila) by a
passenger who asked him to bring her to an albularyo in Roosevelt Avenue, Novaliches. He admitted this
was the first time he mentioned this, as it was not mentioned in his Affidavits [77] which were prepared by the
police. Atty. Lupino Lazaro assisted him in filing charges against the police officers and Atty. Hector Corpuz
before the Department of Justice (DOJ). He admitted that he did not say anything about the illegality of his
arrest and the torture he suffered prior to his arraignment. [78] On re-direct examination, he denied having
executed the Karagdagang Salaysay dated June 21, 1996 before the IBP lawyer, because at this time he was
still detained in a safehouse where he remained until June 25, 1996. He was just forced to sign said
document; after signing it, he heard Lt. Castillo say to one (1) Fiscal Soler, "Fiscal, salamat." Thereafter, he
and the other accused were presented in a press conference as suspects in the Abadilla slaying inside Camp

Crame. During this time, he pointed to Lorenzo delos Santos and Augusto Santos, because they were his
enemies at their place. He only pointed to them out of fear that he might be salvaged by the police and
because of the torture. He really did not know Abadilla nor was he at any time within the vicinity of
Katipunan Avenue on June 13, 1996. He knew Rameses de Jesus, being his longtime neighbor, and also
Lumanog who ran for councilor in their place. All he knows was that his co-accused were picked up from
their place, and he saw them only during the press conference. He affirmed the contents of
the Sinumpaang Salaysay he executed before Police Major (Pol. Maj.) Escote with the assistance of Atty.
Lazaro.[79]
Joel admitted that he was the one (1) who pointed out Cesar Fortuna and Rameses de Jesus to the PARAC
investigators. He confirmed that he was known as "Tabong" in their locality. He also filed a complaint before
the CHR against the same police officers.[80]
Cesar Fortuna testified that he was a member of the PNP assigned at Cagayan de Oro City. He came to
Manila on June 7, 1996, as he was ordered by his superior, Col. Roberto Sacramento, to attend to the
documents required for reassignment of some of their companions (as evidenced by a used Super Ferry
ticket and an unused return ticket for June 20, 1996). On June 11, 1996, he went to the PNP Directorate for
Personnel at the office of Insp. Oscar Alcala. However, on the night of June 19, 1996, he was arrested by
PARAC operatives while he was at the house of an acquaintance, Rameses de Jesus, in Ruby St., Fairview.
He had brought for repair a Ford Maverick Model '69 registered in the name of Col. Sacramento. At 11:00
o'clock in the evening, his mechanic road-tested the car, but since he was left alone, he decided to go to the
house of Rameses which was near the shop. Several armed policemen arrived and entered the house of
Rameses. Not finding Rameses there, they asked him instead to go along with them. He was made to board
an owner-type jeep and immediately blindfolded. After one (1) hour, they arrived at a place which he was
told was the office of PARAC. Somebody approached him and he felt a lighter's flame touch his chin. He
then identified himself as a policeman, but was only told: "Walang pulis pulis dito." They kept on asking him
where Rameses could be found. Still blindfolded, he led them to Palmera Subdivision where he knew
Rameses had another house. Upon reaching Palmera, his blindfold was removed, but he was unable to
locate the house until they went home at 5:00 p.m. In the morning of June 20, 1996, the policemen told
him that he was just confusing them (nililito), but he explained that he had been to that house only once.
The driver of the Honda Civic was already angry at him and inserted a .45 cal pistol in his mouth. They
went back to the PARAC office, and he was interrogated about the Abadilla killing. He was informed that he
was being implicated as somebody had pointed at him. When he still denied having any knowledge about
the ambush-slay, he was repeatedly suffocated with a plastic bag placed on his head while he was
handcuffed and blindfolded. After one (1) hour and due to hardship he suffered, he just told them he would
admit whatever it was they wanted him to admit. He said that he acted as a look-out. They had him copy a
prepared sketch and when his blindfold was finally removed, someone introduced himself as Col. Bartolome
Baluyot who told him he just had to obey and he would not be hurt. Maj. George Reyes arrived, looked at
the sketch and said it was not the place where Col. Abadilla was ambushed. He was blamed for that fiasco
even as he said it was they who prepared the sketch. After an hour, they returned to Palmera Subdivision,
Novaliches and this was already between 2:00 and 3:00 p.m. After rounding the area, he found the house,
but Rameses was not there. He was made to sit the whole night in the kitchen. [81]
Fortuna continued to narrate that on June 21, 1996, he was made to lie down on a bench covered with a GI
sheet and was asked where the firearm of Col. Abadilla was. When he answered that he really did not know
about it, they electrocuted him and poured cold water on his body. He told them that if they needed a gun,
he had a gun in Sampaloc, a .45 cal licensed firearm. Thereupon, they asked him to go to that place where
Dante Montevirgen was the gunsmith. Only the policemen alighted from the vehicle and talked to
Montevirgen. He saw that Montevirgen gave them two (2) firearms, after which they went back to the
PARAC office. On his licensed firearm, he just brought this for repair on May 10, 1996, saying "ayaw magautomatic," while the other gun belonged to Capt. Regis, and these were covered by receipts. Next, they
asked him about the Rolex watch of Col. Abadilla. When he denied having any knowledge about it, he was
again electrocuted. He had filed a complaint before the CHR for the injuries inflicted on him and the
violation of his rights. Aside from this case and the charge of illegal possession of firearms, he was also
charged with an administrative case and a criminal complaint for carnapping (of the KIA Pride). The
carnapping complaint was dismissed by Assistant Prosecutor Amolin on September 23, 1996. The Decision
issued by P/Sr. Supt. Rodolfo N. Caisip of the PNP Headquarters Traffic Management Group also dismissed
Administrative Case No. 96-09-03. He insisted that on the morning of June 13, 1996, he was at Camp
Crame following up the reassignment papers of his colleagues, showing the letter-order issued by Col.
Sacramento. He saw PO3 Ramon Manzano at the Office of the Directorate for Personnel at about 9:00
o'clock in the morning. He left said office as soon as he got the folder, signed their logbook, gave it to SPO4
Mercado of the Office of PNP Personnel Highway Patrol. Then he went home to eat before proceeding to the

Metro Traffic Force, Central District at the office of Col. Juanito de Guzman at Roces St., Quezon City, at
around 2:00 o'clock in the afternoon, for the renewal of the license of Col. Sacramento's driver.[82] He also
filed with the CHR an administrative complaint against those police officers who had illegally arrested,
detained and tortured him.
Fortuna further testified that PARAC operatives seized his Kawasaki motorcycle which he had left inside
Camp Crame because it had no fender. However, the certificate of registration was lost since it had been in
custody of the police; the Land Transportation Office (LTO) registration paper was locked inside, and he
forgot what its plate number was. He admitted that he was able to use said motorcycle in June 1996 even
with the missing fender. He left the motorcycle at Gate 2, Camp Crame before leaving for Cagayan de Oro
City; as to his car, he left it at Pier 2. He admitted that he was the same person charged with kidnapping
and serious illegal detention with ransom in Criminal Case No. 96-312, which was filed on July 15, 1996 in
Mabalacat, Pampanga against him, Lumanog and Rameses by a certain Dr. Jesusa dela Cruz. Said case was
transferred to the Quezon City RTC in the same sala of the presiding judge in this case. The filing of this
case destroyed his reputation as a police officer and affected his children, who stopped going to school. He
admitted though that he had once been dishonorably discharged from the service as a result of an extortion
case filed against him. He had appealed his case and he was reinstated on August 20, 1983. A
memorandum dated June 25, 1996 was issued by Col. Sacramento to attest to his moral character and
loyalty to the service.[83] He admitted that he never raised the issue of the legality of his arrest or the torture
he suffered while in detention, during his arraignment. When confronted with his sworn statement submitted
to the CHR, he admitted that he did not mention therein the pouring of cold water on his body, that he was
asked to make a sketch of Katipunan Avenue, that a .45 cal pistol was inserted into his mouth and that
there was no firearm confiscated from him at the time of his arrest. When he was apprehended on the night
of June 19, 1996 at the house of Rameses at Ruby St., he was half-naked standing outside at the balcony.
He saw someone's hand, but not the whole body of that person to whom he was shown that night, and he
just heard from the policemen he had been positively identified. [84]
Fortuna's claim that he was at Camp Crame following up papers in the morning of June 13, 1996 was
corroborated by Oscar Alcala (Chief Clerk of the Recruitment and Selection Division) and SPO2 Ramon
Manzano (Office of the Directorate for Personnel and Recruitment). However, Alcala could not present the
particular logbook containing the record of the documents and transaction with Fortuna, as it could not be
located, as it got lost after the office renovation in the early part of 1997. A xerox copy of the logbook entry
was presented in court (Exhibit "70").[85]However, said witness admitted he was not the custodian of the said
logbook, and he did not have personal knowledge of the date and time of the entries in Exhibit "70"; it was
also SPO2 Manzano who xeroxed the said logbook entry.[86] Manzano confirmed that he personally saw
Fortuna in the morning of June 13, 1996, between 9:00 and 9:30, when Fortuna retrieved the papers he
earlier submitted in May 1996.[87]
On further cross-examination, Fortuna admitted that he never told his lawyer (Atty. Ramonito M. Delfin)
when they brought his complaint before the CHR that he had documents to prove he was at Camp Crame in
the morning of June 13, 1996. He explained that the matter did not enter his mind because he had no food
and no sleep for several days: "At the time my salaysay was taken from me, everything was still fresh and
there were so many things that I wanted to say but I was not able to say because masama pa ang aking
pakiramdam." Neither did he mention it to Fiscal Refuerzo who interviewed him after the press conference,
as they did not ask him about it.[88] He had brought up such matter with his lawyer in another case not
before the sala of the presiding judge in this case.[89]
Lorenzo delos Santos testified that on June 13, 1996, he left his house at Fairview and boarded a bus
bound for Quiapo. Upon reaching Quiapo, he heard mass in Quiapo Church until around 8:30 a.m. He
arrived in their office at Binondo on June 13, 1996 at 9:30 a.m. He remembered going to the office of the
Felipe Santos Brokerage in the same building to check on the date of arrival of a certain shipment.
Thereafter, he went back to his office and stayed there until 2:30 p.m. He left his place of work about 4:30
in the afternoon and went to a client who invited him to drink at the house of his brother somewhere in
Quezon City. On June 19, 1996, at around 11:00 o'lock in the evening, several persons suddenly barged
into his house while he and his wife were sleeping. Sgt. Bela introduced himself, and he was slapped and
handcuffed and the house was searched. They took his .38 cal revolver which was licensed. He was
blindfolded, made to board a car and taken to a safehouse where he was tied and tortured (suffocation with
plastic bag and electrocution). He was told that he was pointed to by Joel, but he explained to them that
Joel was his opponent in a court case (for grave threats, physical injuries and trespassing). [90] He also
answered their questions regarding his co-accused. He told them that he used to see Rameses when he
brings his children to school and came to know Lumanog when he ran as city councilor, while he did not
know Fortuna. After the interrogation, he was again subjected to torture and he felt weak; this lasted up to

June 21, 1996. On June 21, 1996, he was brought to a field (bukid) where he was forced to sign a paper.
He was then brought to the Quezon City Hall of Justice at the second floor and instructed that he should just
walk along. There were two (2) women inside aside from policemen, and he was elbowed by a policeman to
sign a document. He signed it out of fear, and the document was handed by the policemen to a man who
entered the room, whom he later came to know as Atty. Florimond Rous. He was brought to another floor at
the Fiscal's Office while he was still limping. Somebody there asked why he was in that condition, but one
(1) of his police companions elbowed him so he just said it was nothing. A man who was probably the Fiscal
signed the document, and they left at around 5:00 in the afternoon. [91] Lorenzo admitted he had an ownertype jeep, which was registered in his own name, but said jeep had been mortgaged to Danilo Lintag since
May 27, 1996.[92]
Lorenzo presented as witness Edith Lingan, an employee of Felipe M. Santos, who corroborated his alibi.[93]
Augusto Santos testified that on June 13, 1996 at around 7:00 o'clock in the morning, he accompanied his
brother-in-law Jonas Ayhon whose wife, his sister, gave birth on June 11, 1996 at the Jose Fabella Hospital
at Sta. Cruz, Manila. He stayed there until 2:00 o'clock in the afternoon. On June 26, 1996, five (5) men
suddenly barged into their house. He was hit in the neck with a .45 cal. pistol, blindfolded and brought
outside where he was beaten. They had no warrant of arrest but were forcing him to admit that Joel de
Jesus gave him big money and that he knew what it was. He told them that he did not know anything, and
that Joel was his enemy, as hisTito Lorenzo had a quarrel with Joel in which he helped his Tito. He
confirmed the contents of the Sinumpaang Salaysay dated July 3, 1996 which he executed at Camp Crame,
and also presented a copy of the birth certificate of the baby delivered by his sister at Fabella Hospital. [94]
Jonas Padel Ayhon corroborated the foregoing testimony of his brother-in-law, Augusto "Ogie" Santos,
whose half-sister was his wife.[95]
Rameses de Jesus testified that on June 12, 1996 at 7:00 o'clock in the evening, he and Lumanog left for
Mabalacat, Pampanga on board the latter's brand new Mitsubishi Lancer, together with Romeo Costibollo,
Manny dela Rosa and Boni Mandaro. They arrived in Mabalacat at about 10:00 o'clock in the evening and
after resting they started digging infront of the church, inside the compound of the Tiglao family, Lumanog's
in-laws. They dug until 4:00 o'clock in the morning of June 13, 1996. Thereafter, they slept and woke up at
around 10:00 o'clock in the morning. They helped in the preparations for the celebration of the wedding
anniversary of the Tiglaos. After eating lunch, they drank liquor. They returned to Manila only on June 14,
1996 at 7:00 p.m.. On June 19, 1996, they went back to Pampanga and returned to Manila on June 20,
1996. At around 10:00 p.m., they proceeded to Fairview, Quezon City to visit the sick child of Romeo
Costibollo who was then confined at Fairview Polymedic Hospital. After Costibollo and Lumanog alighted from
their car and while he was parking infront of the hospital, several armed men came. Two (2) men
approached him from behind and asked him if Costibollo and Lumanog were his companions. When he
replied yes, he was pushed inside the car; Costibollo and Lumanog were handcuffed. Without any warrant,
they were apprehended, blindfolded and taken to a place where he was tortured. They were forcing him to
admit that he and his companions killed "Kabise" who was the ex-governor of Ilocos Norte. Despite his
denials they continued to torture him by electrocution and suffocation with a plastic bag. A policeman
arrived with Fortuna, who was asked how much Ram gave them, to which Fortuna replied "P10,000.00." He
got mad at Fortuna and cursed him for telling such a lie. After two (2) days, he was brought to Camp
Karingal still blindfolded. He was again tortured for two (2) days, the policemen forcing him to admit he
participated in the killing of Col. Abadilla. When he could no longer bear the torture, he finally admitted to
Insp. Castillo that he took part in the Abadilla ambush-slay. When the one (1) interviewing him asked how
he did it, he just said that Fortuna came to his house with an owner-type jeep and two (2) other persons,
and that they rode to Dau, Pampanga and headed to Tarlac, on their way to Ilocos to kill Abadilla. Insp.
Castillo got angry, saying that he was just fooling them and he was again hit. [96]
Rameses continued to narrate that after two (2) or three (3) days' stay at Camp Karingal, he and the other
accused were presented at a press conference. During the inquest conducted by Fiscal Refuerzo, he saw
Freddie Alejo for the first time, and also his co-accused Lumanog, Fortuna, Lorenzo, Joel and Augusto. As
far as he knew, they had brought the matter of the torture they suffered in the hands of policemen to the
DOJ.[97]
On cross-examination, Rameses was shown a medical certificate issued by Dr. Servillano B. Ritualo III at the
PNP General Hospital, Camp Crame, but he said he could no longer remember the date he was examined by
said doctor. He confirmed that Fortuna was renting a room in his house together with his mistress "Baby."
When confronted with his Sinumpaang Salaysay dated June 26, 1996 he executed before the CHR, he
admitted that there was no mention therein of their treasure-hunting trip to Pampanga on June 12 to 15,

1996. He said he was never asked about it. He likewise admitted that he was included in the kidnapping
charge filed in Mabalacat, but asserted that it was trumped-up ("Ipinatong po sa akin yan ni Col. Baluyot").
[98]

The Trial Court's Verdict

On August 11, 1999, the trial court promulgated a Joint Decision dated July 30, 1999, the dispositive portion
of which reads:
ACCORDINGLY, judgment is hereby rendered as follows:
x xx
V. In Criminal Case No. Q-96-66684, for Murder,:
1. Accused Arturo Napolitano y Caburnay is hereby ACQUITTED;
2. Accused SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Leonardo Lumanog y Luistro (a.k.a.
Leonido or Lenido), Joel de Jesus y Valdez, and Augusto Santos y Galang are hereby found GUILTY beyond
reasonable doubt as co-principals of the crime of MURDER as defined and penalized in the Revised Penal
Code for the death of ex-Col. Rolando Abadilla y Nolasco with the aggravating circumstances of treachery
(absorbing abuse of superior strength) and evident premeditation and they are hereby sentenced to suffer
the penalty of DEATH;
3. Accused Lorenzo delos Santos y dela Cruz is hereby ACQUITTED.
On the civil aspect, accused SPO2 Cesar Fortuna y Abudo, Rameses de Jesus y Calma, Leonardo Lumanog y
Luistron (a.k.a. Leonido or Lenido), Joel de Jesus y Valdez and Augusto Santos y Galang are hereby ordered
jointly and solidarily to pay the heirs of the deceased ex-Col. Rolando Abadilla y Nolasco the following:
1. As actual damages, the sum of P294,058.86;
2. As indemnity damages, the sum of P50,000.00;
3.

As moral damages, the sum of P500,000.00;

4.

As exemplary damages, the sum of P500,000.00.

The firearm, one (1) Smith & Wesson .38 caliber revolver with Serial No. 980974, subject of Case No. Q-9666680 is hereby ordered returned to Lorenzo delos Santos y dela Cruz.
The firearm, one (1) Amscor .38 caliber revolver with Serial No. 21907, subject of Case No. Q-96-66683 is
hereby ordered forwarded to the PNP Firearms and Explosives Division, Camp Crame, Quezon City for
safekeeping in accordance with law and as said firearm belongs and is licensed to accused Leonardo
Lumanog y Luistro (a.k.a. Leonido or Lenido) who has been sentenced in Case No. Q-96-66684 for Murder,
until further orders from this court.
Costs against the accused.
Let the entire records of these cases be transmitted forthwith to the Honorable Supreme Court for automatic
review, in accordance with law and the Rules of Court.
SO ORDERED.[99]
The trial court was firmly convinced that the prosecution succeeded in establishing the identities of accused
Joel, Rameses, Lumanog, Fortuna and Augusto as the perpetrators in the fatal shooting of Abadilla in the
morning of June 13, 1996. It found that both security guards Alejo and Herbas confirmed the presence of
Joel de Jesus in the crime scene. However, with respect to the positive identification of all the five (5)
accused, namely, Joel de Jesus, Rameses de Jesus, Cesar Fortuna, Lenido Lumanog and Augusto Santos, the
trial court gave more credence to the testimony of Alejo than the declaration on the witness stand of Herbas
who had backtracked on his earlier statement dated June 21, 1996 wherein he pointed to Joel as one (1) of
those participants in the shooting incident.
In doubting the credibility of Herbas, the trial court stressed that Herbas was obviously disgruntled at the

Abadilla family's failure to give him the promised salary, and circumstances showed that his need for job and
money colored his perception and attitude in testifying for the defense. Moreover, despite the impression he
had given to the police and the Abadilla family that he could identify the four (4) persons who surrounded
Col. Abadilla's car, Herbas could not have really been able to recognize the faces of the ambushers for three
(3) reasons: (1) he was on the ground when he turned his head (lumingon) towards where the gunshots
were being fired and quite a lot of vehicles in traffic stopped at the time; (2) the whole incident, as far as
Herbas observed, happened in seconds only; and (3) Herbas was three (3) Meralco posts away from the
ambush site. All these factors combined, according to the trial court, could not have given Herbas enough
time and opportunity to clearly see those who ambushed Abadilla, and hence he was really a poor and
inadequate witness either for the prosecution or the defense. [100]
Compared to Herbas, the trial court found the eyewitness testimony of Alejo more credible due to his
elevated position at his guard post and the fact that the ambush had taken place before his very eyes, so
near that one (1) of the conspirators had to order him to lie flat (which obviously he could not do because of
the narrow space inside his guard house), and which appeared to be the reason why a second order came
for him to get down from the guard house, to which he nervously complied. From his vantage point, Alejo
sufficiently and in a detailed manner recognized the relative positions and participations of the ambushers,
each of whom he had identified as Rameses, Fortuna, Lumanog, Augusto and Joel, both in the police line-up
and again inside the courtroom during the trial.[101]
The trial court also found that the statements of Joel, in which he admitted his participation in the crime
assisted by Atty. Sansano and in the presence of the IBP personnel and police investigators, were not flawed
by intimidation or violence when obtained and sworn to before the fiscal. The common defense of alibi put
up by all the accused was rejected by the trial court, holding that (1) the alleged treasure-hunting trip
made by Lumanog and Rameses was incredible and unpersuasive, as it was contrary to ordinary human
experience; (2) Fortuna's claim was weak, the logbook entry on his supposed transaction in the Office of
the Directorate for Personnel and Recruitment at Camp Crame was a mere photocopy, and also, as in the
case of Rameses, he never mentioned such digging activity in Pampanga in the sworn complaint he had filed
before the CHR; (3) Augusto's alibi was supported only by his brother-in-law, and it was simply not usual for
menfolk, instead of women, in our family culture, to fetch a woman who had just given birth at the hospital,
aside from the observation that Augusto could have gone straight to Fabella Hospital in Sta. Cruz, Manila
instead of going first to Buendia, Makati before 7:00 a.m. to fetch his brother-in-law. With respect to
Lumanog, the trial court pointed out that his silence and failure to testify in court, despite the evidence
implicating him in the murder of Abadilla, justified an inference that he was not innocent. [102]
On August 25, 1999, Lumanog filed a motion for reconsideration. [103] On September 2, 1999, Joel filed a
motion for new trial based on newly discovered evidence to present two witnesses, Merevic S. Torrefranca
and Rosemarie P. Caguioa, who offered to testify on the whereabouts of Joel on the day of the incident. [104]
Lumanog likewise filed a motion for new trial for the presentation of a new witness, who was allegedly on
board a taxi immediately behind Abadilla's car, and who clearly saw that those who perpetrated the
gruesome crime were not the accused.[105] In his Supplement to the Motion for Reconsideration, Lumanog
assailed the inconsistencies in the declarations of Alejo, and the non-presentation of eyewitnesses Minella
Alarcon and Metro Aide Aurora Urbano. In addition, Lumanog pointed to well-publicized statements of the
Alex Boncayao Brigade (ABB), which claimed responsibility for the killing of Abadilla, but the investigation
got sidetracked by another angle -- that a political rival of Abadilla paid money for a contract assassination.
He contended that the police opted for the path of least resistance by rounding up the usual suspects,
indeed another glaring example of our law enforcers' strategy of instituting trumped-up charges against
innocent people just to comply with their superior's directive to accelerate solving an ambush-slay case. [106]
In additional pleadings filed by his new counsel, Lumanog reiterated the ABB's assassination theory in the
light of more recent press statements issued by said group describing the accused as mere fall guys of the
police to project an image of efficiency.[107]
On January 25, 2000, the trial court issued an Order ruling on the pending motions:
WHEREFORE, premises considered, the court resolves:
1.

to DENY the Motion for Reconsideration by accused Lenido Lumanog;

2.

to DENY the Motion for New Trial by accused Joel de Jesus;

3.

to consider the Motion for New Trial by accused Lenido Lumanog as abandoned and/or withdrawn;

4.

to DENY the Supplement to the Motion for Reconsideration by accused Lenido Lumanog as well as
his addendum thereto and his Manifestation and Motion dated December 15, 1999 to allow him to
introduce additional evidence in support of his Supplement to the Motion for Reconsideration;

5.

to DENY the Manifestation and Submission dated December 14, 1999 by accused Lenido Lumanog;

6.

and to ORDER the immediate transmittal of the records of these cases to the Honorable Supreme
Court for automatic review pursuant to law, the Rules of Court and the Joint Decision of this court
dated July 30, 1999.

SO ORDERED.[108]
On January 19, 2000, Fr. Roberto P. Reyes, parish priest of the Parish of the Holy Sacrifice, University of the
Philippines at Diliman, Quezon City, assisted by Atty. Neri J. Colmenares, filed an "Urgent Independent
Motion for Leave of Court to Present Vital Evidence." Fr. Reyes claimed that an ABB personality came to him
confessing that the ABB was responsible for the killing of Abadilla and gave him an object (Omega gold
wristwatch) taken from said victim, which can be presented as evidence in this case to prove the innocence
of the accused who were erroneously convicted by the trial court and save them from the penalty of death.
[109]

After due hearing, the trial court denied the said motion of Fr. Reyes, holding that the latter's proposed
testimony could not be considered an exception to the hearsay rule, considering that: (1) it cannot be said
that the person who allegedly approached Fr. Reyes was unable to testify, as said person was simply
unwilling to face in a court of law the legal consequences of whatever admissions he made to Fr. Reyes; (2)
the alleged admission was made long after trial had ended and long after the court had promulgated its
decision, at which time the public and persons interested in the outcome of the case knew already what
were the court's findings and conclusions of fact; and (3) going by the advertised image of the ABB as an
ideologically motivated group that would shoot to death public officers and private individuals perceived by
its ranking cadres as corrupt, the court found it hard to believe that ABB gunman would in full view of
idealist comrades and everybody else, would open Abadilla's car and steal that watch, and remain unscathed
for his unproletarian act by his peers in the organization. [110] The trial court, however, ordered that the
Omega wristwatch allegedly belonging to the late Col. Abadilla, the copy of the motion for leave to present
vital evidence and the transcript of the proceedings on January 26, 2000 be attached to the records of the
case as part of the offer of proof of the defense.
Two (2) more pleadings were filed by Lumanog's counsel just before the records of Criminal Case No. Q-9666684 were transmitted to this Court for automatic review, namely, a Final Submission to This Court dated
February 8, 2000, together with an attached copy of the letter of Lt. Gen Jose M. Calimlim of the Armed
Forces of the Philippines (AFP) Intelligence Service regarding an unsuccessful operation of the ABB to kill
Col. Abadilla, and Final Manifestation to This Court dated February 9, 2000. [111]
Lumanog challenged before this Court the validity of the Orders dated January 25, 26, and 28, 2000
allegedly issued with grave abuse of discretion on the part of the trial judge who thereby denied the accused
the opportunity to introduce evidence on the alleged role of the ABB in the ambush-slay of Col. Abadilla. On
September 7, 2001, we denied his petition for certiorari in G.R. No. 142065, [112] as we thus held:
A perusal of the pieces of evidence, except the Omega wristwatch, which are sought to be presented by the
petitioners in a new trial are not newly discovered evidence because they were either available and could
have been presented by the defense during the trial of the case with the exercise of due diligence, such as
the alleged newspaper reports and AFP/PNP intelligence materials on Col. Abadilla. The wristwatch allegedly
belonging to the late Col. Abadilla is immaterial to the case of murder while the testimony of F. Roberto
Reyes on the turn over of the said wristwatch by an alleged member of the ABB who purportedly knows
certain facts about the killing of Col. Abadilla would be hearsay without the testimony in court of the said
alleged member of the ABB. The document which granted amnesty to Wilfredo Batongbakal is irrelevant to
the killing of Col. Abadilla inasmuch as Batongbakal does not appear privy to the actual commission of the
crime of murder in the case at bar. If at all, those pieces of additional evidence will at most be merely
corroborative to the defense of alibi and denial of herein petitioners. Petitioners' alternative prayer that this
Court "itself conduct hearings and receive evidence on the ABB angle" is not well taken for the reason that
the Supreme Court is not a trier of facts. [113]
Accused-petitioner's motion for reconsideration of the above decision was denied with finality on November
20, 2001.[114] On September 17, 2002, this Court likewise denied for lack of merit the motion for new trial

and related relief dated April 26, 2002 filed by counsel for said accused-petitioner.[115]
Pursuant to our decision in People v. Mateo,[116] this case was transferred to the Court of Appeals for
intermediate review on January 18, 2005.[117]
Ruling of the CA
On April 1, 2008, the CA rendered the assailed decision, thus:
WHEREFORE, in the light of the foregoing, the impugned decision is AFFIRMED with the MODIFICATION that
the accused-appellants are sentenced each to suffer reclusion perpetua without the benefit of parole.
In all other respects, the lower court's decision is AFFIRMED.
Costs against appellants.
SO ORDERED.[118]
The CA upheld the conviction of the accused-appellants based on the credible eyewitness testimony of Alejo,
who vividly recounted before the trial court their respective positions and participation in the fatal shooting
of Abadilla, having been able to witness closely how they committed the crime. On the sufficiency of
prosecution evidence to establish appellants' guilt beyond reasonable doubt and the scant weight of their
defense of alibi, as well as the allegations of torture and intimidation in the hands of the police investigator
and negative results of ballistic and fingerprint tests, the CA ruled as follows:
Despite a lengthy and exhaustive cross-examination by the defense counsel, eyewitness Alejo stuck to the
essentials of his story, including the identification of the persons who killed Col. Abadilla. He was only ten
(10) meters away from the locus crimini. Standing on an elevated guardhouse, he had a close and
unobstructed view of the whole incident. He was in a vantage position to clearly recognize Col. Abadilla's
assailants, more so because the crime happened in clear and broad daylight.
Even standing alone, Alejo's positive and unequivocal declaration is sufficient to support a conviction for
murder against appellants. Indeed, the testimony of a single witness, when positive and credible, is
sufficient to support a conviction even for murder. For there is no law requiring that the testimony of a
simple [sic] witness should be corroborated for it to be accorded full faith and credit. The credible testimony
of a lone witness(es) assumes more weight when there is no showing that he was actuated by improper
motive to testify falsely against the accused, as in the case of Freddie Alejo.
xxx
...appellants failed to prove that it was physically impossible for them to be at the locus delicti or within its
immediate vicinity at the time the crime was committed.
In the case of Joel de Jesus, he maintains that he was driving his tricycle on a special chartered trip for a
passenger going to Roosevelt, Novalichez, Quezon City. But, it was not impossible for him to have also gone
to Katipunan Avenue, which is also part of Quezon City; not to mention the fact that with his tricycle, he
could have easily moved from one place to another.
The testimonies of Rameses de Jesus and Leonido Lumanog that they were treasure hunting in Mabalacat,
Pampanga on the day in question, lack credence as they are unsupported by the testimonies of independent
witnesses. At any rate, Rameses de Jesus admitted that they were using the new car of Leonido Lumanog.
Hence, it was not physically impossible for them to travel to Quezon City via the North Expressway at the
time the crime took place.
Augusto claims that he was at the Fabella Hospital in Sta. Cruz, Manila, and his alibi was corroborated by his
brother-in-law, Jonas Padel Ayhon, who is not an impartial witness. Where nothing supports the alibi except
the testimony of a relative, it deserves scant consideration.
x xx
Finally, Cesar Fortuna claims that he was in Camp Crame on the day the murder took place. But it was not
impossible for him to have gone to Katipunan Road, Blue Ridge, which is relatively near Camp Crame when

the shooting happened around 8:40 in the morning. After the shooting, he could have easily and quickly
transferred to Camp Crame between 9:00 and 9:30 in the morning of the same day.
In any event, appellants' alibis were belied by the positive identification made by prosecution eyewitness
Freddie Alejo.
x xx
Further, appellants' allegations that the police authorities maltreated them, and forcibly extracted their
extra-judicial confessions do not exculpate them from criminal liability. For one, their conviction was not
based on their extra-judicial confessions, but on their positive identification of Freddie Alejo as the authors
of the crime. Such positive identification is totally independent of their extra-judicial confessions. For
another, the Constitutional guarantees contained in the Bill of Rights cannot be used as a shield whereby a
person guilty of a crime may escape punishment. Thus, the Supreme Court in Draculan vs. Donato, held:
"x x x. Pangalawa, ang mga karapatan ng mga mamamayan na natatala sa Saligang Batas (sa Bill of
Rights) ay hindi mga paraan upang ang isang tunay na may pagkakasala na labag sa batas, ay makaligtas
sa nararapat na pagdurusa. Ang tunay na layunin ng mga tadhanang iyon ng Saligang Batas ay walang iba
kundi tiyakin na sinumang nililitis ay magkaroon ng sapat na pagkakataon at paraan na maipagtanggol ang
sarili, bukod sa pagbabawal ng pagtanggap ng katibayan (evidence) laban sa kanya na bunga ng pagpipilit,
dahas at iba pang paraang labag sa kanyang kalooban."
To repeat, assuming that appellants' allegations of torture were true, the same do not exculpate them from
liability for the crime which the People had adequately established by independent evidence, neither was
their claim that the results of the ballistics test purportedly showing that the bullets and bullet shells found
in the crime scene did not match with any of the firearms supposedly in their possession. But these ballistic
results are inconclusive and can never prevail over appellants' positive identification by eyewitness Freddie
Alejo as the persons who perpetrated the ambush-slay of Col. Abadilla. Besides, there is no showing that
the firearms supposedly found in appellants' possession long after the incident were the same ones they
used in the ambush-slay.[119]
In its Resolution[120] dated October 28, 2008, the CA denied the motions for reconsideration respectively filed
by Fortuna and Joel de Jesus.[121]
Rameses de Jesus and Joel de Jesus filed notices of appeal[122] (G.R. No. 187745), while Fortuna (G.R. No.
185123), and Lumanog and Augusto Santos (G.R. No. 182555) filed their respective petitions for review.
On August 6, 2009, G.R. No. 187745 was ordered consolidated with the already consolidated petitions in
G.R. Nos. 182555 and 185123.[123] In view of the judgment of the CA imposing the penalty of reclusion
perpetua, said petitions for review are treated as appeals, in accordance with A.M. No. 00-5-03SC (Amendments to the Revised Rules of Criminal Procedure to Govern Death Penalty Cases)[124] which
provides under Rule 124 (c):
(c) In cases where the Court of Appeals imposes reclusion perpetua, life imprisonment or a lesser penalty, it
shall render and enter judgment imposing such penalty. The judgment may be appealed to the Supreme
Court by notice of appeal filed with the Court of Appeals.
Appellants' Arguments
Lenido Lumanog and Augusto Santos set forth the following arguments in their memorandum, which
basically reflect the same issues raised by appellants in the memorandum filed in G.R. No. 182555:
1. The Court of Appeals did not make a real and honest review of the appealed case. There was a failure of
appellate review, rendering its decision void.
2. The affirmation of the conviction over-relies on the testimony of one alleged eyewitness, Freddie Alejo.
3. The affirmation of the conviction misappreciates the alibi evidence for the defense.
4. The affirmation of conviction gravely erred when it unduly disregarded other pieces of vital evidence.
5. The penalty imposed by the Court of Appeals is unconstitutional. [125]

On his part, Fortuna alleges that:

I. The Honorable Court of Appeals committed serious error and gravely abused its discretion when it
affirmed the conviction of the petitioner and his co-accused based solely on the incredible and contradicted
eyewitness account of Security Guard (S/G) Alejo.
II. The Honorable Court of Appeals seriously erred and gravely abused its discretion in not considering the
defense of petitioner herein despite the weakness of the evidence of the prosecution.
III. The Honorable Court seriously erred in favoring the prosecution on the ballistic test showing that the
bullets and bullet shells found in the crime scene did not match with any firearms supposedly in petitioner's
possession; evidence which was supposed to support the theory of the prosecution. When such physical
evidence did not favor the prosecution's theory the same was still taken against the petitioner.
IV. The Honorable Court of Appeals seriously erred in disregarding allegations and proof of torture and
maltreatment by police officers against the petitioner in affirming his conviction. [126]
Appellants assail the wholesale adoption, if not verbatim copying, by the CA of the factual narration, as well
as the arguments for and disposition of the merits of the case from the Consolidated Brief for the Appellees,
which in turn is based on the memorandum submitted by the private prosecutors to the trial court. This
anomaly, according to the appellants, which was aggravated by the insufficient findings of fact and absence
of actual discussion of the assignment of errors raised by each appellant before the CA, resulted in the
failure of intermediate review without any independent findings and resolution of important issues of the
case, thus rendering the CA decision void. Hence, appellants seek not just to overturn or reverse the CA
decision but also to declare it null and void, by way of "radical relief" from this Court.
On the merits, appellants principally contend that the CA gravely erred in its over-reliance on the
problematic identification provided by the prosecution's lone eyewitness, security guard Alejo. The CA simply
did not rule on questions concerning the credibility of said eyewitness through the "totality of circumstances"
test. They also fault the CA for misappreciating their common defense of alibi, thus disregarding
exculpatory documentary evidence including negative results of ballistic and fingerprint examinations, and
evidence of torture which appellants had suffered in the hands of police investigators. Equally deplorable is
the trial and appellate courts' refusal to admit evidence coming from underground revolutionary forces, in
particular the ABB which claimed responsibility for the killing of Col. Abadilla, a notorious military henchman
during the martial law era. Appellants maintain that violations of constitutional rights have been held as a
ground for acquittal or dismissal in certain cases. In one (1) case, the long delay in the termination of
preliminary investigation was found to be violative of the accused's constitutional rights to procedural due
process and speedy disposition of cases and was cause for the dismissal of the case by this Court as a
matter of "radical relief."
Finally, the appellants argue that the penalty of reclusion perpetua "without the benefit of parole" meted by
the CA pursuant to Sec. 3 of R.A. No. 9346 is unconstitutional. Article III, Section 19 (1) of the 1987
Constitution provides that "any death penalty imposed shall be reduced to reclusion perpetua." There is no
mention of "without the benefit of parole" or "shall not be eligible for parole" therein.
Appellants contend that the questioned provisions of R.A. No. 9346 constitute encroachments or dilutions of
the President's broad, if not near absolute, constitutional power of executive clemency, based not only on
Article VII, Sec. 19, but also on constitutional tradition and jurisprudence. Although the said section does
not explicitly mention "parole" as a form of executive clemency, constitutional tradition and jurisprudence
indicate it to be such. In Tesoro v. Director of Prisons,[127] for instance, it was held that the power to pardon
given to the President by the Constitution includes the power to grant and revoke paroles. The aforesaid
provision of R.A. No. 9346 also inflicts an inhuman punishment, which is prohibited by the Constitution, and
also violates the equal protection clause of the Bill of Rights.
Our Ruling
Once again, this Court upholds the constitutional mandate protecting the rights of persons under custodial
investigation. But while we strike down the extrajudicial confession extracted in violation of constitutionally
enshrined rights and declare it inadmissible in evidence, appellants are not entitled to an acquittal because
their conviction was not based on the evidence obtained during such custodial investigation. Even without
the extrajudicial confession of appellant Joel de Jesus who was the first to have been arrested, the trial

court's judgment is affirmed, as the testimonial and documentary evidence on record have established the
guilt of appellants beyond reasonable doubt.
CA Decision meets the
constitutional standard
The Constitution commands that "[n]o decision shall be rendered by any court without expressing therein
clearly and distinctly the facts and the law on which it is based." [128] Judges are expected to make complete
findings of fact in their decisions and scrutinize closely the legal aspects of the case in the light of the
evidence presented. They should avoid the tendency to generalize and form conclusions without detailing
the facts from which such conclusions are deduced. [129]
Section 2, Rule 120 of the 1985 Rules on Criminal Procedure, as amended, likewise provides:
Sec. 2. Form and contents of judgments. -- The judgment must be written in the official language,
personally and directly prepared by the judge and signed by him and shall contain clearly and distinctly a
statement of the facts proved or admitted by the accused and the law upon which the judgment
is based.
xxx

xxx

x x x. [emphasis supplied.]

We have sustained decisions of lower courts as having substantially or sufficiently complied with the
constitutional injunction, notwithstanding the laconic and terse manner in which they were written; and even
if "there (was left) much to be desired in terms of (their) clarity, coherence and comprehensibility," provided
that they eventually set out the facts and the law on which they were based, as when they stated the legal
qualifications of the offense constituted by the facts proved, the modifying circumstances, the participation
of the accused, the penalty imposed and the civil liability; or discussed the facts comprising the elements of
the offense that was charged in the information, and accordingly rendered a verdict and imposed the
corresponding penalty; or quoted the facts narrated in the prosecution's memorandum, but made their own
findings and assessment of evidence, before finally agreeing with the prosecution's evaluation of the case.
[130]

In the same vein, we have expressed concern over the possible denial of due process when an appellate
court failed to provide the appeal the attention it rightfully deserved, thus depriving the appellant of a fair
opportunity to be heard by a fair and responsible magistrate. This situation becomes more ominous in
criminal cases, as in this case, where not only property rights are at stake but also the liberty if not the life
of a human being.[131] The parties to a litigation should be informed of how it was decided, with an
explanation of the factual and legal reasons that led to the conclusions of the trial court. The losing party is
entitled to know why he lost, so he may appeal to the higher court, if permitted, should he believe that the
decision should be reversed. A decision that does not clearly and distinctly state the facts and the law on
which it is based leaves the parties in the dark as to how it was reached and is precisely prejudicial to the
losing party, who is unable to pinpoint the possible errors of the court for review by a higher tribunal. [132]
In Bank of the Philippine Islands v. Leobrera,[133] we held that though it is not a good practice, we see
nothing illegal in the act of the trial court completely copying the memorandum submitted by a party,
provided that the decision clearly and distinctly states sufficient findings of fact and the law on which they
are based.[134] In another case where we upheld the validity of memorandum decisions, we nevertheless
took occasion to remind judges that it is still desirable for an appellate judge to endeavor to make the issues
clearer and use his own perceptiveness in unraveling the rollo and his own discernment in discovering the
law. No less importantly, he must use his own language in laying down his judgment. [135]
Perusing the CA decision, we hold that it cannot be deemed constitutionally infirm, as it clearly stated the
facts and law on which the ruling was based, and while it did not specifically address each and every
assigned error raised by appellants, it cannot be said that the appellants were left in the dark as to how the
CA reached its ruling affirming the trial court's judgment of conviction. The principal arguments raised in
their Memorandum submitted before this Court actually referred to the main points of the CA rulings, such
as the alleged sufficiency of prosecution evidence, their common defense of alibi, allegations of torture,
probative value of ballistic and fingerprint test results, circumstances qualifying the offense and modification
of penalty imposed by the trial court. What appellants essentially assail is the verbatim copying by the CA
of not only the facts narrated, but also the arguments and discussion including the legal authorities, in
disposing of the appeal. On such wholesale adoption of the Office of the Solicitor General's position, as well
as the trial court's insufficient findings of fact, appellants anchor their claim of failure of intermediate review

by the CA.
We now proceed to the other substantive issues presented by appellants.
Rights of Accused During
Custodial Investigation
The rights of persons under custodial investigation are enshrined in Article III, Section 12 of the 1987
Constitution, which provides:
Sec. 12 (1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with one. These
rights cannot be waived except in writing and in the presence of counsel.
(2) No torture, force, violence, threat, intimidation or any other means which 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 (right against selfincrimination) shall be inadmissible in evidence against him.
(4) The law shall provide for penal and civil sanctions for violation of this section as well as compensation for
the rehabilitation of victims of tortures or similar practices, and their families. [emphasis supplied.]
Extrajudicial Confession
of Joel de Jesus Not Valid
Custodial investigation refers to the critical pre-trial stage when the investigation is no longer a general
inquiry into an unsolved crime, but has begun to focus on a particular person as a suspect. [136] Police officers
claimed that appellants were apprehended as a result of "hot pursuit" activities on the days following the
ambush-slay of Abadilla. There is no question, however, that when appellants were arrested they were
already considered suspects: Joel was pinpointed by security guard Alejo who went along with the PARAC
squad to Fairview on June 19, 1996, while the rest of appellants were taken by the same operatives in
follow-up operations after Joel provided them with the identities of his conspirators and where they could be
found.
R.A. No. 7438,[137] approved on May 15, 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.
xxxx
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. [emphasis supplied.]
Police officers claimed that upon arresting Joel, they informed him of his constitutional rights to remain
silent, that any information he would give could be used against him, and that he had the right to a
competent and independent counsel, preferably, of his own choice, and if he cannot afford the services of
counsel he will be provided with one (1). However, since these rights can only be waived in writing and with

the assistance of counsel, there could not have been such a valid waiver by Joel, who was presented to
Atty. Sansano at the IBP Office, Quezon City Hall only the following day and stayed overnight at the police
station before he was brought to said counsel.
P/Insp. Castillo admitted that the initial questioning of Joel began in the morning of June 20, 1996, the first
time said suspect was presented to him at the CPDC station, even before he was brought to the IBP Office
for the taking of his formal statement. Thus, the possibility of appellant Joel having been subjected to
intimidation or violence in the hands of police investigators as he claims, cannot be discounted. 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.
[138]
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. [139]
Even assuming that custodial investigation started only during Joel's execution of his statement before Atty.
Sansano on June 20, 1996, still the said confession must be invalidated. To be acceptable, extrajudicial
confessions must conform to constitutional requirements. A confession is not valid and not admissible in
evidence when it is obtained in violation of any of the rights of persons under custodial investigation. [140]
Since Joel was provided with a lawyer secured by CPDC investigators from the IBP-Quezon City chapter, it
cannot be said that his right to a counsel "preferably of his own choice" was not complied with, particularly
as he never objected to Atty. Sansano when the latter was presented to him to be his counsel for the taking
down of his statement. The phrase "preferably of his own choice" does not convey the message that the
choice of a lawyer by a person under investigation is exclusive as to preclude other equally competent and
independent attorneys from handling the defense; otherwise the tempo of custodial investigation would be
solely in the hands of the accused who can impede, nay, obstruct the progress of the interrogation by simply
selecting a lawyer who, for one reason or another, is not available to protect his interest. [141] Thus, while the
choice of a lawyer in cases where the person under custodial interrogation cannot afford the services of
counsel - or where the preferred lawyer is not available - is naturally lodged in the police investigators, the
suspect has the final choice, as he may reject the counsel chosen for him and ask for another one. A lawyer
provided by the investigators is deemed engaged by the accused when he does not raise any objection
against the counsel's appointment during the course of the investigation, and the accused thereafter
subscribes to the veracity of the statement before the swearing officer.[142]
The question really is whether or not Atty. Sansano was an independent and competent counsel as to satisfy
the constitutional requirement. We held that the modifier competent and independent in the 1987
Constitution is not an empty rhetoric. It stresses the need to accord the accused, under the uniquely
stressful conditions of a custodial investigation, an informed judgment on the choices explained to him by a
diligent and capable lawyer.[143] An effective and vigilant counsel necessarily and logically requires that the
lawyer be present and able to advise and assist his client from the time the confessant answers the first
question asked by the investigating officer until the signing of the extrajudicial confession. Moreover, the
lawyer should ascertain that the confession is made voluntarily and that the person under investigation fully
understands the nature and the consequence of his extrajudicial confession in relation to his constitutional
rights. A contrary rule would undoubtedly be antagonistic to the constitutional rights to remain silent, to
counsel and to be presumed innocent.[144]
Atty. Sansano, who supposedly interviewed Joel and assisted the latter while responding to questions
propounded by SPO2 Garcia, Jr., did not testify on whether he had properly discharged his duties to said
client. While SPO2 Garcia, Jr. testified that Atty. Sansano had asked Joel if he understood his answers to the
questions of the investigating officer and sometimes stopped Joel from answering certain questions, SPO2
Garcia, Jr. did not say if Atty. Sansano, in the first place, verified from them the date and time of Joel's
arrest and the circumstances thereof, or any previous information elicited from him by the investigators at
the station, and if said counsel inspected Joel's body for any sign or mark of physical torture.
The right to counsel has been written into our Constitution in order to prevent the use of duress and other
undue influence in extracting confessions from a suspect in a crime. The lawyer's role cannot be reduced to
being that of a mere witness to the signing of a pre-prepared confession, even if it indicated compliance with
the constitutional rights of the accused. The accused is entitled to effective, vigilant and independent
counsel.[145] Where the prosecution failed to discharge the State's burden of proving with clear and
convincing evidence that the accused had enjoyed effective and vigilant counsel before he extrajudicially
admitted his guilt, the extrajudicial confession cannot be given any probative value.[146]

With respect to the other appellants, they were likewise entitled to the rights guaranteed by the Constitution
when they were brought to the police station as suspects and were, therefore under custodial investigation.
[147]
However, they cannot simply rely on those violations of constitutional rights during custodial
investigation, which are relevant only when the conviction of the accused by the trial court is based on the
evidence obtained during such investigation.[148] As for the matters stated in the extrajudicial confession of
appellant Joel, these were not the basis for appellants' conviction. It has to be stressed further that no
confession or statement by appellants Fortuna, Lumanog, Augusto and Rameses was used as evidence by
the prosecution at the trial.
After a thorough and careful review, we hold that there exists sufficient evidence on record to sustain
appellants' conviction even without the extrajudicial confession of appellant Joel de Jesus.
Allegations of Torture
and Intimidation
The Court notes with utmost concern the serious allegations of torture of appellants who were dubbed by
the media as the "Abadilla 5." This was brought by appellants before the CHR which, in its Resolution dated
July 26, 1996, did not make any categorical finding of physical violence inflicted on the appellants by the
police authorities. The CHR, however, found prima facie evidence that respondent police officers could have
violated R.A. No. 7438, particularly on visitorial rights and the right to counsel, including the law on arbitrary
detention, and accordingly forwarded its resolution together with records of the case to the Secretary of
Justice, Secretary of the Department of Interior and Local Government, the PNP Director General and the
Ombudsman to file the appropriate criminal and/or administrative actions against the person or persons
responsible for violating the human rights of the suspects as the evidence may warrant. [149] As per the
manifestation of appellants, the DOJ, after conducting a preliminary investigation, referred the matter to the
Ombudsman in 2004. As of July 2007, the case before the Ombudsman docketed as OMB-P-C-041269/CPL-C-04-1965 was "still pending preliminary investigation.[150]
Right to Speedy
Disposition of Cases
Appellants further cite the comment made by the United Nations Human Rights Committee in its
Communication No. 1466/2006 that under the circumstances, there was, insofar as the eight (8)-year delay
in the disposition of their appeal in the CA was concerned, a violation of Article 14, paragraph 3 (c) of
the International Covenant on Civil and Political Rights (1966). It provides that in the determination of any
criminal charge against him, everyone shall be entitled, as among the minimum guarantees provided
therein, "to be tried without undue delay." [151]
Section 16, Article III of the 1987 Constitution provides that "all persons shall have the right to a speedy
disposition of their cases before all judicial, quasi-judicial, or administrative bodies." [152] This protection
extends to all citizens and covers the periods before, during and after trial, affording broader protection than
Section 14(2), which guarantees merely the right to a speedy trial. [153] However, just like the constitutional
guarantee of "speedy trial," "speedy disposition of cases" is a flexible concept. It is consistent with delays
and depends upon the circumstances. What the Constitution prohibits are unreasonable, arbitrary and
oppressive delays, which render rights nugatory.[154]
In this case, the records of Criminal Case No. Q-96-66684 were transmitted to this Court for automatic
review on February 11, 2000. On September 7, 2001, this Court rendered a decision dismissing the Petition
for Certiorari (Rule 65) and for Extraordinary Legal and Equitable Relief (G.R. No. 142065). By June 2004, all
appeal briefs for the present review had been filed and on July 6, 2004, appellants filed a Consolidated
Motion for Early Decision. On December 13, 2004, they filed a Motion for Early Decision. [155]
By resolution of January 18, 2005, we transferred this case to the CA for intermediate review, conformably
with our pronouncement in People v. Mateo decided on July 7, 2004. Appellants' Urgent Motion for
Reconsideration of Transfer to the Court of Appeals filed on February 24, 2005 was denied on March 29,
2005. A similar request filed on June 2, 2005 was likewise denied by our Resolution dated July 12, 2005.
[156]
At the CA, appellants also moved for early resolution of their appeal after the case was submitted for
decision on November 29, 2006. The case remained unresolved due to a number of factors, such as the CA
internal reorganization and inhibition of some Justices to whom the case was re-raffled. [157] Before the
retirement of the ponente, Justice Agustin S. Dizon, the CA's Sixteenth Division finally rendered its decision
on April 1, 2008. Appellants' motion for reconsideration was denied by the Special Former Sixteenth
Division on October 28, 2008.

It must be stressed that in the determination of whether the right to speedy disposition of cases has been
violated, particular regard must be taken of the facts and circumstances peculiar to each case. A mere
mathematical reckoning of the time involved would not be sufficient. [158] Under the circumstances, we hold
that the delay of (4) four years during which the case remained pending with the CA and this Court was not
unreasonable, arbitrary or oppressive.
In several cases where it was manifest that due process of law or other rights guaranteed by the
Constitution or statutes have been denied, this Court has not faltered to accord the so-called "radical relief"
to keep accused from enduring the rigors and expense of a full-blown trial. [159] In this case, however,
appellants are not entitled to the same relief in the absence of clear and convincing showing that the delay
in the resolution of their appeal was unreasonable or arbitrary.
Credibility of Eyewitness Testimony
Time and again, we have held that the testimony of a sole eyewitness is sufficient to support a conviction so
long as it is clear, straightforward and worthy of credence by the trial court. [160][161] Indeed, when it comes to
credibility of witnesses, this Court accords the highest respect, even finality, to the evaluation made by the
lower court of the testimonies of the witnesses presented before it. This holds true notwithstanding that it
was another judge who presided at the trial and Judge Jaime N. Salazar, Jr. who penned the decision in this
case heard only some witnesses for the defense. It is axiomatic that the fact alone that the judge who
heard the evidence was not the one who rendered the judgment, but merely relied on the record of the
case, does not render his judgment erroneous or irregular. This is so even if the judge did not have the
fullest opportunity to weigh the testimonies, not having heard all the witnesses speak or observed their
deportment and manner of testifying.
Verily, a judge who was not present during the trial can rely on the transcript of stenographic notes taken
during the trial as basis of his decision. Such reliance does not violate substantive and procedural due
process.[162] We have ruled in People v. Rayray[163] that the fact that the judge who heard the evidence was
not himself the one who prepared, signed and promulgated the decision constitutes no compelling reason to
jettison his findings and conclusions, and does not per se render his decision void. The validity of a decision
is not necessarily impaired by the fact that its ponente only took over from a colleague who had earlier
presided at the trial. This circumstance alone cannot be the basis for the reversal of the trial court's
decision.[164]
In giving full credence to the eyewitness testimony of security guard Alejo, the trial judge took into account
his proximity to the spot where the shooting occurred, his elevated position from his guardhouse, his
opportunity to view frontally all the perpetrators for a brief time -- enough for him to remember their faces
(when the two [2]lookouts he had earlier noticed walking back and forth infront of his guard post pointed
their guns at him one [1]after the other, and later when the four [4] armed men standing around the
victim's car momentarily looked at him as he was approached at the guardhouse by the second lookout),
and his positive identification in the courtroom of appellants as the six (6) persons whom he saw acting
together in the fatal shooting of Abadilla on June 13, 1996. The clear view that Alejo had at the time of the
incident was verified by Judge Jose Catral Mendoza (now an Associate Justice of this Court) during the ocular
inspection conducted in the presence of the prosecutors, defense counsel, court personnel, and witnesses
Alejo and Maj. Villena.
The trial judge also found that Alejo did not waver in his detailed account of how the assailants shot Abadilla
who was inside his car, the relative positions of the gunmen and lookouts, and his opportunity to look at
them in the face. Alejo immediately gave his statement before the police authorities just hours after the
incident took place. Appellants make much of a few inconsistencies in his statement and testimony, with
respect to the number of assailants and his reaction when he was ordered to get down in his guard post.
But such inconsistencies have already been explained by Alejo during cross-examination by correcting his
earlier statement in using number four (4) to refer to those persons actually standing around the car and
two (2) more persons as lookouts, and that he got nervous only when the second lookout shouted at him to
get down, because the latter actually poked a gun at him. It is settled that affidavits, being ex-parte, are
almost always incomplete and often inaccurate, but do not really detract from the credibility of witnesses.
[165]
The discrepancies between a sworn statement and testimony in court do not outrightly justify the
acquittal of an accused,[166] as testimonial evidence carries more weight than an affidavit. [167]
As to appellants' attempt to discredit Alejo by reason of the latter's acceptance of benefits from the Abadilla
family, the same is puerile, considering that the trial court even verified for itself how Alejo could have

witnessed the shooting incident and after he withstood intense grilling from defense lawyers. Case law has
it that where there is no evidence that the principal witness for the prosecution was actuated by improper
motive, the presumption is that he was not so actuated and his testimony is entitled to full faith and credit.
[168]

The trial judge also correctly rejected appellants' proposition that the eyewitness testimony of security guard
Herbas should have been given due weight and that other eyewitnesses should have been presented by the
prosecution, specifically Cesar Espiritu and Minella Alarcon, who allegedly had better opportunity to
recognize Abadilla's attackers. As correctly pointed out by the trial judge, Herbas could not have really seen
at close range the perpetrators from his position at a nearby building, which is several meters away from the
ambush site, as confirmed by photographs submitted by the prosecution, which Herbas failed to refute. The
same thing can be said of Espiritu who admitted in his Sinumpaang Salaysay that his car was ahead of the
Honda Accord driven by Abadilla, and that he had already alighted from his car some houses away from the
exact spot where Abadilla was ambushed while his car was in the stop position. [169]
Positive Identification of Appellants
Appellants assail the out-of-court identification made by Alejo who pointed to appellant Joel de Jesus and
Lorenzo delos Santos in a line-up at the police station together with police officers. However, appellants'
claim that the police officers who joined the line-up were actually in their police uniforms at the time, as to
make the identification process suggestive and hence not valid, was unsubstantiated.
In People v. Teehankee, Jr.,[170] we explained the procedure for out-of-court identification and the test to
determine the admissibility of such identification, thus:
Out-of-court identification is conducted by the police in various ways. It is done thru show-upswhere the
suspect alone is brought face to face with the witness for identification. It is done thrumug shots where
photographs are shown to the witness to identify the suspect. It is also done thruline-ups where a witness
identifies the suspect from a group of persons lined up for the purpose. . . In resolving the admissibility of
and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances
test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at
the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior
description given by the witness; (4) thelevel of certainty demonstrated by the witness at the
identification; (5) the length of time between the crime and the identification; and, (6) the
suggestiveness of the identification procedure.[171] [emphasis supplied.]
Examining the records, we find nothing irregular in the identification made by Alejo at the police station for
which he executed the Karagdagang Sinumpaang Salaysay dated June 21, 1996, during which he positively
identified Joel de Jesus and Lorenzo delos Santos as those lookouts who had pointed their guns at him
demanding that he buck down at his guardhouse. In any case, the trial court did not rely solely on said outof-court identification considering that Alejo also positively identified appellants during the trial. Thus, even
assuming arguendo that Alejo's out-of-court identification was tainted with irregularity, his subsequent
identification in court cured any flaw that may have attended it.[172] We have held that the inadmissibility of
a police line-up identification should not necessarily foreclose the admissibility of an independent in-court
identification.[173]
We also found none of the danger signals enumerated by Patrick M. Wall, a well-known authority in
eyewitness identification, which give warning that the identification may be erroneous even though the
method used is proper. The danger signals contained in the list, which is not exhaustive, are:
(1) the witness originally stated that he could not identify anyone;
(2) the identifying witness knew the accused before the crime, but made no accusation against him when
questioned by the police;
(3) a serious discrepancy exists between the identifying witness' original description and the actual
description of the accused;
(4) before identifying the accused at the trial, the witness erroneously identified some other person;
(5) other witnesses to the crime fail to identify the accused;

(6) before trial, the witness sees the accused but fails to identify him;
(7) before the commission of the crime, the witness had limited opportunity to see the accused;
(8) the witness and the person identified are of different racial groups;
(9) during his original observation of the perpetrator of the crime, the witness was unaware that a crime was
involved;
(10) a considerable time elapsed between the witness' view of the criminal and his identification of the
accused;
(11) several persons committed the crime; and
(12) the witness fails to make a positive trial identification. [174]
Appellants nonetheless point out the allegedly doubtful prior descriptions given by Alejo, who was able to
describe the physical appearance of only two (2) suspects in his statement:
Iyong tumutok sa akin ay naka-asul na t-shirt, edad 30-35, 5'5"-5'6" ang taas, katamtaman ang katawan,
maikli ang buhok, kayumanggi. Ang baril niya ay tipong 45 o 9 mm na pistola. Iyong sumakal sa biktima at
nang-agaw ng clutch bag nito ay 25-30 ang edad, payat, mahaba ang buhok na nakatali, maitim, may taas
na 5'5"-5'6", maiksi din ang baril niya at naka-puting polo. Iyong iba ay maaring makilala ko kung makikita
ko uli.[175]
Appellants claimed that if Alejo was referring to appellant Joel de Jesus who pointed a gun at him, his
description did not jibe at all since Joel de Jesus was just 22 years old and not 30-35 years of age, and who
stands 5'9" and not 5'5"-5'6". And if indeed it was appellant Lenido Lumanog whom Alejo saw as the
gunman who had grabbed the victim by the neck after opening the car's left front door, his description again
failed because far from being"maitim," Lumanog was in fact fair-complexioned.
We are not persuaded. Alejo positively identified Joel de Jesus in a line-up at the police station and again
inside the courtroom as the first lookout who pointed a gun at him. Though his estimate of Joel's age was
not precise, it was not that far from his true age, especially if we consider that being a tricycle driver who
was exposed daily to sunlight, Joel's looks may give a first impression that he is older than his actual age.
Moreover Alejo's description of Lumanog as dark-skinned was made two (2) months prior to the dates of the
trial when he was again asked to identify him in court. When defense counsel posed the question of the
discrepancy in Alejo's description of Lumanog who was then presented as having a fair complexion and was
40 years old, the private prosecutor manifested the possible effect of Lumanog's incarceration for such
length of time as to make his appearance different at the time of trial.
Applying the totality-of-circumstances test, we thus reiterate that Alejo's out-court-identification is reliable,
for reasons that, first, he was very near the place where Abadilla was shot and thus had a good view of the
gunmen, not to mention that the two (2) lookouts directly approached him and pointed their guns at
them;second, no competing event took place to draw his attention from the event; third, Alejo immediately
gave his descriptions of at least two (2) of the perpetrators, while affirming he could possibly identify the
others if he would see them again, and the entire happening that he witnessed; and finally, there was no
evidence that the police had supplied or even suggested to Alejo that appellants were the suspects, except
for Joel de Jesus whom he refused to just pinpoint on the basis of a photograph shown to him by the police
officers, insisting that he would like to see said suspect in person. More importantly, Alejo during the trial
had positively identified appellant Joel de Jesus independently of the previous identification made at the
police station. Such in-court identification was positive, straightforward and categorical.
Appellants contend that the subsequent acquittal of Lorenzo delos Santos, whom Alejo had categorically
pointed to as one (1) of the two (2) men whom he saw walking to and fro infront of his guard post prior to
the shooting incident, and as one (1) of the two (2) men who pointed a gun at him and ordered him to get
down, totally destroyed said witness' credibility and eroded the trustworthiness of each and every
uncorroborated testimony he gave in court. This assertion is untenable. A verdict of acquittal is
immediately final; hence, we may no longer review the acquittal of accused Lorenzo delos Santos.
[176]
However, the acquittal of their co-accused does not necessarily benefit the appellants. We have ruled
that accused-appellant may not invoke the acquittal of the other conspirators to merit the reversal of his
conviction for murder.[177]

Ballistic and fingerprint

examination results are
inconclusive and not
indispensable
Appellants deplore the trial court's disregard of the results of the ballistic and fingerprint tests, which they
claim should exonerate them from liability for the killing of Abadilla. These pieces of evidence were
presented by the defense to prove that the empty shells recovered from the crime scene and deformed slug
taken from the body of Abadilla were not fired from any of the firearms seized from appellants. Instead,
they matched the same firearm used in the killings of Suseso de Dios and other supposed victims of
ambush-slay perpetrated by suspected members of the ABB. Further, none of the fingerprints lifted from the
KIA Pride, used by the gunmen as getaway vehicle, matched any of the specimens taken from the
appellants.
We are not persuaded. As correctly held by the CA, the negative result of ballistic examination was
inconclusive, for there is no showing that the firearms supposedly found in appellants' possession were the
same ones used in the ambush-slay of Abadilla. The fact that ballistic examination revealed that the empty
shells and slug were fired from another firearm does not disprove appellants' guilt, as it was possible that
different firearms were used by them in shooting Abadilla. [178] Neither will the finding that the empty shells
and slug matched those in another criminal case allegedly involving ABB members, such that they could
have been fired from the same firearms belonging to said rebel group, exonerate the appellants who are on
trial in this case and not the suspects in another case. To begin with, the prosecution never claimed that the
firearms confiscated from appellants, which were the subject of separate charges for illegal possession of
firearms, were the same firearms used in the ambush-slay of Abadilla. A ballistic examination is not
indispensable in this case. Even if another weapon was in fact actually used in killing the victim, still,
appellants Fortuna and Lumanog cannot escape criminal liability therefor, as they were positively identified
by eyewitness Freddie Alejo as the ones who shot Abadilla to death. [179]
As this Court held in Velasco v. People[180] -As regards the failure of the police to present a ballistic report on the seven spent shells recovered from the
crime scene, the same does not constitute suppression of evidence. A ballistic report serves only as a guide
for the courts in considering the ultimate facts of the case. It would be indispensable if there are no credible
eyewitnesses to the crime inasmuch as it is corroborative in nature. The presentation of weapons or the
slugs and bullets used and ballistic examination are not prerequisites for conviction. The corpus
delicti and the positive identification of accused-appellant as the perpetrator of the crime are more than
enough to sustain his conviction. Even without a ballistic report, the positive identification by prosecution
witnesses is more than sufficient to prove accused's guilt beyond reasonable doubt. In the instant
case, since the identity of the assailant has been sufficiently established, a ballistic report on the
slugs can be dispensed with in proving petitioner's guilt beyond reasonable doubt. [emphasis
supplied.]
The negative result of the fingerprint tests conducted by fingerprint examiner Remedios is likewise
inconclusive and unreliable. Said witness admitted that no prints had been lifted from inside the KIA Pride
and only two (2) fingerprints were taken from the car of Abadilla.
Defense of Alibi Cannot
Prevail Over Positive Identification
Alibi is the weakest of all defenses, for it is easy to fabricate and difficult to disprove, and it is for this reason
that it cannot prevail over the positive identification of the accused by the witnesses. [181] To be valid for
purposes of exoneration from a criminal charge, the defense of alibi must be such that it would have been
physically impossible for the person charged with the crime to be at the locus criminis at the time of its
commission, the reason being that no person can be in two places at the same time. The excuse must be so
airtight that it would admit of no exception. Where there is the least possibility of accused's presence at the
crime scene, the alibi will not hold water.[182]
Deeply embedded in our jurisprudence is the rule that positive identification of the accused, where
categorical and consistent, without any showing of ill motive on the part of the eyewitness testifying, should
prevail over the alibi and denial of appellants, whose testimonies are not substantiated by clear and
convincing evidence.[183] However, none of the appellants presented clear and convincing excuses showing

the physical impossibility of their being at the crime scene between 8:00 o'clock and 9:00 o'clock in the
morning of June 13, 1996. Hence, the trial court and CA did not err in rejecting their common defense
of alibi.
As to the failure of appellant Lumanog to take the witness stand, indeed the grave charges of murder and
illegal possession of firearms would have normally impelled an accused to testify in his defense, particularly
when his life is at stake. As this Court observed in People v. Delmendo:[184]
An adverse inference may also be deduced from appellant's failure to take the witness stand. While his
failure to testify cannot be considered against him, it may however help in determining his guilt."The
unexplained failure of the accused to testify, under a circumstance where the crime imputed to
him is so serious that places in the balance his very life and that his testimony might at least help
in advancing his defense, gives rise to an inference that he did not want to testify because he did
not want to betray himself."
An innocent person will at once naturally and emphatically repel an accusation of crime, as a matter of selfpreservation, and as a precaution against prejudicing himself. A person's silence, therefore, particularly
when it is persistent, may justify an inference that he is not innocent. Thus, we have the general principle
that when an accused is silent when he should speak, in circumstances where an innocent person so
situated would have spoken, on being accused of a crime, his silence and omission are admissible in
evidence against him. Accordingly, it has been aptly said that silence may be assent as well as consent, and
may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a
quasi-confession.[185]
Treachery and Evident Premeditation
Attended the Commission of the Crime
As regards the presence of treachery as a qualifying circumstance, the evidence clearly showed that the
attack on the unsuspecting victim -- who was inside his car on a stop position in the middle of early morning
traffic when he was suddenly fired upon by the appellants -- was deliberate, sudden and unexpected. There
was simply no chance for Abadilla to survive the ambush-slay, with successive shots quickly fired at close
range by two (2) armed men on both sides of his car; and much less to retaliate by using his own gun, as no
less than 23 gunshot wounds on his head and chest caused his instantaneous death. As we have
consistently ruled, the essence of treachery is the sudden and unexpected attack on an unsuspecting victim
by the perpetrator of the crime, depriving the victim of any chance to defend himself or to repel the
aggression, thus insuring its commission without risk to the aggressor and without any provocation on the
part of the victim.[186]
Evident premeditation was likewise properly appreciated by the trial court, notwithstanding the
inadmissibility of Joel de Jesus's extrajudicial confession disclosing in detail the pre-planned ambush of
Abadilla, apparently a contract killing in which the perpetrators were paid or expected to receive payment
for the job. As correctly pointed out by the CA, Alejo had stressed that as early as 7:30 in the morning of
June 13, 1996, he already noticed something unusual going on upon seeing the two (2) lookouts (appellants
Joel de Jesus and Lorenzo delos Santos) walking to and fro along Katipunan Avenue infront of the building
he was guarding. True enough, they were expecting somebody to pass that way, who was no other than
Abadilla driving his Honda Accord. After the lapse of more or less one (1) hour, he already heard successive
gunshots, while in his guard post, from the direction of the middle lane where Abadilla's car was surrounded
by four (4) men carrying short firearms. All the foregoing disclosed the execution of a pre-conceived plan to
kill Abadilla. The essence of evident premeditation is that the execution of the criminal act is preceded by
cool thought and reflection upon the resolution to carry out criminal intent within a span of time sufficient to
arrive at a calm judgment.[187]
The trial court and CA were therefore correct in declaring the appellants guilty as conspirators in the
ambush-slay of Abadilla, the presence of treachery and evident premeditation qualifying the killing to
murder under Art. 248 of the Revised Penal Code, as amended.
Proper Penalty
The CA correctly modified the death penalty imposed by the trial court. At the time the crime was
committed, the penalty for murder was reclusion perpetua to death. Since the penalty is composed of two
(2) indivisible penalties, then for the purpose of determining the imposable penalty, Article 63 of the Revised
Penal Code, as amended, must be considered. It provides in part:

1. When in the commission of the deed there is present only one aggravating circumstance, the greater
penalty shall be applied.
With the presence of the aggravating circumstance of treachery and there being no mitigating circumstance,
the higher penalty of death should be imposed.[188]
In view, however, of the passage of Republic Act No. 9346 entitled, "An Act Prohibiting the Imposition of
Death Penalty in the Philippines," which was signed into law on June 24, 2006, the imposition of the death
penalty has been prohibited. Pursuant to Section 2 thereof, the penalty to be meted to appellants shall
be reclusion perpetua. Said section reads:
SECTION 2. In lieu of the death penalty, the following shall be imposed:
(a) the penalty of reclusion perpetua, when the law violated makes use of the nomenclature of the penalties
of the Revised Penal Code; or
(b) the penalty of life imprisonment, when the law violated does not make use of the nomenclature of the
penalties of the Revised Penal Code.
Notwithstanding the reduction of the penalty imposed on appellants, they are not eligible for parole following
Section 3 of said law which provides:[189]
SECTION 3. Persons convicted of offenses punished with reclusion perpetua, or whose sentences will be
reduced to reclusion perpetua, by reason of this Act, shall not be eligible for parole under Act No. 4103,
otherwise known as the Indeterminate Sentence Law, as amended.
Appellants' attack on the constitutionality of the above provision on grounds of curtailment of the President's
absolute power to grant executive clemency, imposition of an inhuman punishment and violation of equal
protection clause, is utterly misplaced.
As succinctly explained by this Court in People v. Gardon[190]
We should point out that the benefit of parole cannot be extended to Gardon even if he committed the
crimes for which he is now convicted prior to the effectivity of R.A. No. 9346. Sec. 2 of the Indeterminate
Sentence Law provides that the law "shall not apply to persons convicted of offenses punished with death
penalty or life- imprisonment." Although the law makes no reference to persons convicted to suffer the
penalty of reclusion perpetua such as Gardon, the Court has consistently held that the Indeterminate
Sentence Law likewise does not apply to persons sentenced to reclusion perpetua. In People v. Enriquez, we
declared:
[R]eclusion perpetua is the only penalty that can be imposed against the appellants. As correctly argued by
the Solicitor General, Act No. 4103, otherwise known as theIndeterminate Sentence Law, cannot be applied
in the case of appellants considering the proscription in Sec. 2 thereof, viz:
xxxx
Indeed, in People v. Asturias, Serrano v. Court of Appeals, People v. Lampaza andPeople v. Tan, to name a
few cases, we in effect equated the penalty of reclusion perpetua as synonymous to life-imprisonment for
purposes of the Indeterminate Sentence Law, and ruled that the latter law does not apply to persons
convicted of offenses punishable with the said penalty. Consequently, we affirm the Court of Appeals in not
applying the Indeterminate Sentence Law, and in imposing upon appellants the penalty of reclusion
perpetua instead.
Reclusion perpetua is an indivisible penalty without a minimum or maximum period. Parole, on the other
hand, is extended only to those sentenced to divisible penalties as is evident from Sec. 5 of the
Indeterminate Sentence Law, which provides that it is only after "any prisoner shall have served the
minimum penalty imposed on him" that the Board of Indeterminate Sentence may consider whether such
prisoner may be granted parole.[191]
Further, we cite the concurring opinion of Mr. Justice Dante Tinga in People v. Tubongbanua,[192] addressing
the issue herein raised by appellants, to wit:

No constitutional sanctities will be offended if persons previously sentenced to death, or persons sentenced
to reclusion perpetua, are denied the benefit of parole conformably to Section 3 of Rep. Act No. 9346. As to
persons previously sentenced to death, it should be remembered that at the time of the
commission of the crime, the penalty attached to the crime was death. To their benefit, Rep. Act
No. 9346 reduced the penalty attached to the crime to reclusion perpetua. Yet such persons cannot
claim the benefit of parole on the basis of the ex post factoclause of the Constitution, since an ex post
facto law is one which, among others, "changes punishment, and inflicts a greater punishment than the law
annexed to the crime when committed." Rep. Act No. 9346 had the effect of "inflicting" a lighter
punishment, not a greater punishment, than what the law annexed to the crime when committed. [193]
[emphasis supplied.]
Civil Liability
When death occurs due to a crime, the following damages may be awarded: (1) civil indemnity ex delicto for
the death of the victim; (2) actual or compensatory damages; (3) moral damages; (4) exemplary damages;
and (5) temperate damages.[194]
Civil indemnity is mandatory and granted to the heirs of the victim without need of proof other than the
commission of the crime.[195] We have ruled that even if the penalty of death is not to be imposed because
of the prohibition in R.A. No. 9346, the civil indemnity of P75,000.00 is proper, because it is not dependent
on the actual imposition of the death penalty but on the fact that qualifying circumstances warranting the
imposition of the death penalty attended the commission of the offense. [196] As explained in People v.
Salome,[197] while R.A. No. 9346 prohibits the imposition of the death penalty, the fact remains that the
penalty provided for by the law for a heinous offense is still death, and the offense is still heinous.
Accordingly, the heirs of Col. Rolando N. Abadilla is entitled to civil indemnity in the amount of P75,000.00.
The grant of actual damages representing burial expenses, funeral services and cost of repair of the Honda
car, is likewise in order, being duly supported by receipts.[198]
With regard to moral and exemplary damages, we find the amounts awarded by the trial court excessive and
the same are hereby reduced to P75,000.00 and P30,000.00, respectively. It must again be stressed that
moral damages are emphatically not intended to enrich a plaintiff at the expense of the defendant. When
awarded, moral damages must not be palpably and scandalously excessive as to indicate that it was the
result of passion, prejudice or corruption on the part of the trial judge or appellate court justices. [199] As to
exemplary damages, the same is justified under Article 2230 of the New Civil Code when a crime is
committed with an aggravating circumstance, either qualifying or generic. [200]
WHEREFORE, the consolidated petitions and appeal are hereby DISMISSED. The Decision dated April 1,
2008 of the Court of Appeals in CA-G.R. CR-HC No. 00667 is hereby AFFIRMED with MODIFICATIONS in
that the civil indemnity for the death of Col. Rolando N. Abadilla is hereby increased to P75,000.00, and the
amounts of moral and exemplary damages awarded to his heirs are reduced to P75,000.00 and P30,000.00,
respectively.
With costs against the accused-appellants.
SO ORDERED.
Corona, C.J., Velasco, Jr., Leonardo-De Castro, Peralta, Del Castillo, and Perez, JJ., concur.
Carpio, J., see dissenting opinion.
Carpio Morales and Sereno, JJ., join the dissent of JJ. Carpio and Abad.
Nachura, no part. signed pleading as Sol Gen.
Brion, J., on official leave but he left his vote concurring with J. Villarama and the majority.
Bersamin, J., with concurring opinion.
Abad, J., see my dissenting opinion.
Mendoza, J., no part.

G.R. No. 198452, February 19, 2014

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. VICENTE ROM, Accused-Appellant.
DECISION
PEREZ, J.:
On appeal is the Decision1 dated 9 August 2010 of the Court of Appeals in CA-G.R. CR-H.C. No. 00579
affirming with modification the Decision2 dated 24 June 2002 of the Regional Trial Court (RTC) of Cebu City,
Branch 10, in Criminal Case Nos. CBU-55062, CBU-55063 and CBU-55067, finding herein appellant Vicente
Rom guilty beyond reasonable doubt of violating Sections 15 3 (illegal sale ofshabu), 15-A4 (maintenance of a
drug den) and 165 (illegal possession of shabu), Article III of Republic Act No. 6425, also known as the
Dangerous Drugs Act of 1972, as amended by Republic Act No. 7659. 6 In Criminal Case Nos. CBU-55062 and
CBU-55063, for respectively violating Sections 15 and 16, Article III of Republic Act No. 6425, as amended,
the trial court imposed on the appellant the penalty of prision correccional in its medium period ranging
between two (2) years, four (4) months and one (1) day, as minimum, to four (4) years and two (2)

months, as maximum. While in Criminal Case No. CBU-55067, that is for violating Section 15-A, Article III of
Republic Act No. 6425, as amended, the trial court sentenced the appellant to reclusion perpetua and he was
likewise ordered to pay a fine of P500,000.00. The Court of Appeals, however, modified and reduced the
penalty in Criminal Case Nos. CBU-55062 and CBU-55063 to an imprisonment of six (6) months of arresto
mayor, as minimum, to four (4) years and two (2) months of prision correccional, as maximum, after
applying the Indeterminate Sentence Law.
In three separate Informations7 all dated 1 September 2000, the appellant was charged with violation of
Sections 15, 15-A and 16, Article III of Republic Act No. 6425, as amended. The three Informations read:
Criminal Case No. CBU-55062

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That on or about the 31st day of August 2000, at about 10:30 P.M. in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, [herein appellant], with deliberate intent and without
being authorized by law, did then and there sell, deliver or give away to a poseur buyer one (1) heat
sealed plastic packet of white crystalline substance weighing 0.03 gram locally known as
shabu, containing Methylamphetamine Hydrochloride, a regulated drug. 8 (Emphasis and italics supplied).
Criminal Case No. CBU-55063
That on or about the 31st day of August 2000, at about 10:30 P.M., in the City of Cebu, Philippines, and
within the jurisdiction of this Honorable Court, [appellant], with deliberate intent and without being
authorized by law, did then and there have in [his] possession and control or use the following:
Four (4) heat sealed plastic packets of white crystalline substance weighing 0.15 gram
locally known as shabu, containing Methylamphetamine Hydrochloride, a regulated drug, without the
corresponding license or prescription.9 (Emphasis and italics supplied).
Criminal Case No. CBU-55067
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That on the 31s[t] day of August, 2000, at about 10:30 P.M., in the City of Cebu, Philippines, and within the
jurisdiction of this Honorable Court, [appellant], with deliberate intent, did then and thereknowingly
maintain a den for regulated users along the interior portion of Barangay T. Padilla in violation to (sic)
the provision of Sec. 15-A of Art. III of RA 6425.10 (Emphasis supplied).
On arraignment, the appellant, with the assistance of counsel de parte, pleaded NOT GUILTY 11 to all the
charges. A pre-trial conference was conducted on 2 April 2001, but no stipulation or agreement was arrived
at.12 The pre-trial conference was then terminated and trial on the merits thereafter ensued.
The prosecution presented as witnesses Police Officer 2 Marvin Martinez (PO2 Martinez), the
designated poseur-buyer; PO3 Franco Mateo Yanson (PO3 Yanson); and Police Senior Inspector Marvin
Sanchez (P/Sr. Insp. Sanchez), the team leader of the buy-bust operation against the appellant. They were
all assigned at the Vice Control Section of the Cebu City Police Office (VCS-CCPO). The testimony, however,
of P/Sr. Insp. Mutchit G. Salinas (P/Sr. Insp. Salinas), the forensic analyst, was dispensed 13 with in view of
the admission made by the defense as to the authenticity and due existence of Chemistry Report No. D1782-200014 dated 1 September 2000 and the expertise of the forensic analyst.
The prosecutions evidence established the following facts:

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Two weeks prior to 31 August 2000, the VCS-CCPO received confidential information from their informant
that alias Dodong, who turned out later to be the appellant, whose real name is Vicente Rom, was engaged
in the illegal sale of shabu and also maintained a drug den at his residence inBarangay T. Padilla, Cebu City.
Thus, the VCS-CCPO, particularly PO2 Martinez, conducted surveillance and monitoring operation. 15
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On 31 August 2000, at around 10:15 p.m., P/Sr. Insp. Sanchez, Chief of VCS-CCPO, formed a team to
conduct a buy-bust operation against the appellant. The buy-bust team was composed of PO2 Martinez
(poseur-buyer), Senior Police Officer 1 Jesus Elmer Fernandez (SPO1 Fernandez), PO3 Yanson, PO3 Benicer
Tamboboy (PO3 Tamboboy), PO3 Jaime Otadoy (PO3 Otadoy) and P/Sr. Insp. Sanchez (team leader). Being
the designated poseur-buyer, PO2 Martinez was provided with a P100.00 peso bill and a P10.00 peso bill
buy-bust money bearing Serial Nos. AD336230 and AM740786, respectively, and both were marked with the
initials of PO2 Martinez, i.e. MM. The former amount would be used to buy shabu while the latter amount
would serve as payment for the use of the drug den. 16
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After the briefing, the buy-bust team proceeded to the target area and upon arrival there at around 10:20
p.m., PO2 Martinez proceeded directly to the appellants house, which was earlier pointed to by their

informant, who was also with them during the buy-bust operation. The rest of the buy-bust team
strategically positioned themselves nearby. Once PO2 Martinez reached the appellants house, he knocked on
the door, which the appellant opened. PO2 Martinez subsequently told the appellant that he wanted to
buy shabu worth P100.00. The appellant looked around to check if PO2 Martinez had a companion. Seeing
none, the appellant took out his wallet from his pocket and got one heat-sealed plastic packet containing
white crystalline substance, later confirmed to be shabu, and gave it to PO2 Martinez. The latter, in turn,
gave the P100.00 peso bill marked money to the appellant. While this sale transaction was going on, PO3
Yanson and P/Sr. Insp. Sanchez were only five to eight meters away from PO2 Martinez and the appellant.
P/Sr. Insp. Sanchez clearly witnessed the sale transaction as it happened right outside the door of the
appellants house.17
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Afterwards, PO2 Martinez told the appellant that he wanted to sniff the shabu, so the latter required the
former to pay an additional amount of P10.00 as rental fee for the use of his place. After paying the said
amount, the appellant allowed PO2 Martinez to enter his house. Once inside the house, PO2 Martinez was
directed by the appellant to proceed to the room located at the right side of the sala. Upon entering the said
room, PO2 Martinez saw three persons, later identified to be Jose Delloso (Delloso), Danilo Empuerto
(Empuerto) and Arnie Ogong (Ogong), already sniffing shabu.18
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Thereupon, PO2 Martinez made a missed call to P/Sr. Insp. Sanchez, which was their pre-arranged signal, to
signify that the whole transaction was consummated. After the lapsed of about 10 to 15 seconds, the rest of
the team, who were just few meters away from the appellants house, barged in and identified themselves
as police officers. PO2 Martinez then told PO3 Yanson to hold the appellant. PO3 Yanson grabbed the
appellant and made a body search on the latter that led to the recovery of four heat-sealed transparent
plastic packets containing white crystalline substance, which were inside the appellants brown wallet that
was tucked in his pocket; the buy-bust money consisting of P100.00 peso bill and P10.00 peso bill; and
P280.00 consisting of two P100.00 peso bills, one P50.00 peso bill and three P10.00 peso bills believed to be
the proceeds of the appellants illegal activities. The one heat-sealed plastic packet of shabu bought by PO2
Martinez from the appellant remained in the possession of the former.19
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The appellant, Delloso, Empuerto and Ogong were informed of their constitutional rights and were later
brought by the buy-bust team to their office, together with the confiscated items, for documentation. At the
office of the buy-bust team, the confiscated items were given to their investigator, SPO1 Fernandez, who
marked the one heat-sealed plastic packet containing white crystalline substance, which was the subject of
the sale transaction, with VRR-8-31-2000-01 (buy-bust) while the other four heat-sealed plastic packets
containing white crystalline substance, which were recovered from the appellant, were similarly marked with
VRR-8-31-2000-02 to VRR-8-31-2000-05. The VRR in the markings are the initials of the appellant, i.e.,
Vicente Ramonida Rom.20
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Thereafter, all the five heat-sealed plastic packets containing white crystalline substance, together with the
Request for Laboratory Examination, were brought by PO3 Yanson to the Philippine National Police (PNP)
Crime Laboratory for chemical analysis, which examination yielded positive results for the presence
of methylamphetamine hydrochloride or shabu,21 as evidenced by Chemistry Report No. D-1782-2000.22

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For its part, the defense presented the appellant and Teresita Bitos, whose testimonies consist of sheer
denials. Their version of the 31 August 2000 incident is as follows:
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At around 10:15 p.m. to 10:30 p.m. of 31 August 2000, the appellant was at the house of his daughter,
Lorena Cochera (Lorena), in Barangay T. Padilla, Cebu City, as Lorena had asked her father to get the
monthly house rental fee from Teresita Bitos, whose nickname is Nene. While the appellant and Nene were
talking, the police officers suddenly barged in. The appellant noticed that PO2 Martinez proceeded to the
inner portion of the house and opened the door of the rooms. Nene stopped them but the police officers told
her to just keep quiet. The police officers went on opening the door of the two rooms, where they saw three
male persons. The police officers frisked the appellant and the three other men. The police officers likewise
took appellants wallet containing P360.00. The appellant then requested Nene to tell his daughter that he
was arrested. Thereafter, the police officers brought the appellant and the three other men to the police
station.23
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The appellant denied that he sold shabu to PO2 Martinez. He also denied that he was maintaining a drug den
and that he allowed persons to sniff shabu inside the house in Barangay T. Padilla, Cebu City, in exchange
for a sum of money. The appellant likewise denied that he knew the three other men who were arrested
inside the room in the said house. The appellant claimed instead that he knew PO2 Martinez prior to 31
August 2000 because the latter usually stayed at the house to apprehend snatchers. Also, a week before 31

August 2000, he and PO2 Martinez had a conversation and he was asked to pinpoint the fat fish, which is
the code for the big time pusher. When he said that he does not know of such pusher, PO2 Martinez got
angry. The appellant maintained that on 31 August 2000, he was no longer living in the house in Barangay T.
Padilla, Cebu City, as his daughter had already brought him to Minglanilla, Cebu, as early as July 1999. On
the said date, Nene was already occupying the house and had subleased one of its rooms as his daughter
Maya told him so. The appellant admitted that a year prior to 31 August 2000, and before he transferred to
Minglanilla, he was apprehended for illegal possession of shabu.24
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The narration of the appellant was corroborated by Nene on all material points.
Testifying on rebuttal, PO2 Martinez denied that he knew the appellant prior to 31 August 2000. PO2
Martinez clarified that he came to know the appellant only on the night that they conducted the buy-bust
operation.25
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Finding the testimonies of the prosecution witnesses to be credible, competent and convincing as they were
able to satisfactorily prove all the elements of the offenses charged against the appellant, the trial court, in
its Decision dated 24 June 2002, held the appellant guilty beyond reasonable doubt of violation of Sections
15, 15-A and 16, Article III of Republic Act No. 6425, as amended. The trial court disposed of the case as
follows:
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IN THE LIGHT OF THE FOREGOING CIRCUMSTANCES, the Court finds the [herein appellant] for -

1) Criminal Case No. CBU-55062, for violating Section 15, Article

III, Republic Act No. 6425, as amended, GUILTY. There being no
mitigating nor any aggravating circumstance proven, the Court
hereby imposes the penalty ofPRISION CORRECCIONAL in the
MEDIUM PERIOD ranging between TWO (2) YEARS, FOUR (4)
MONTHS and ONE (1) DAY, as minimum[,] to FOUR (4) YEARS
and TWO (2) MONTHS, as maximum;
2) Criminal Case No. CBU-55063, for violating Section 16, Article
III, Republic Act No. 6425, as amended, GUILTY. In the absence of
any mitigating or aggravating circumstance, the Court imposes the
penalty of PRISION CORRECCIONAL in the MEDIUM PERIOD
ranging between TWO (2) YEARS, FOUR (4) MONTHS and ONE
(1) DAY, as minimum to FOUR (4) YEARS and TWO (2) MONTHS,
as maximum; and
3) Criminal Case No. CBU-55067, for violating Section 15-A, Article
III, Republic Act No. 6425, as amended, GUILTY. The court
hereby imposes upon the [appellant] the penalty of RECLUSION
PERPETUA and a FINE of FIVE HUNDRED THOUSAND
(P500,000.00) PESOS.
The five (5) heat-sealed plastic packets of white crystalline substance containing methylamphetamine
hydrochloride, locally known as shabu, are hereby CONFISCATED in favor of the government and shall be
destroyed in accordance with the law prohibiting said drug.26 (Emphasis, italics and underscoring supplied).
The appellant appealed the trial courts Decision to this Court via Notice of Appeal. 27 However, pursuant to
this Courts decision in People v. Mateo,28 the case was transferred to the Court of Appeals for intermediate
review.
On 9 August 2010, the Court of Appeals rendered the now assailed Decision affirming with modification the
ruling of the trial court. Its decretal portion reads, thus:
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WHEREFORE, in view of all the foregoing, the Decision of the RTC, Branch 10, Cebu City in Criminal Cases
No. CBU-55062, CBU-55063 and CBU-55067 is herebyAFFIRMED WITH MODIFICATION concerning
Criminal Cases No. CBU-55062 and CBU-55063, for which [the herein appellant] is sentenced to suffer the
penalty of imprisonment from six months of arresto mayor, as minimum, to four years and two months
of prision correccional, as maximum of the Indeterminate Sentence Law.29
The Court of Appeals upheld the conviction of the appellant on all the charges against him as the
prosecution was able to establish his guilt beyond reasonable doubt since all the essential elements of illegal
sale and possession of shabu were duly proven by the prosecution. As to the charge of maintaining a drug
den, the same was also established by the fact that PO2 Martinez himself paid P10.00 to sniff the shabu in
one of the rooms of the appellants house. The appellants denial, therefore, cannot prevail over the
evidence hurled against him.
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The Court of Appeals, however, deemed it necessary to modify the penalty in Criminal Case Nos. CBU-55062
and CBU-55063. It explained that the sale of less than 200 grams of shabu is punishable with a penalty
ranging from prision correccional to reclusion temporal, depending on the quantity. In this case, the quantity
of shabu illegally sold to the poseur-buyer by the appellant was 0.03 gram. Pursuant to the second
paragraph of Section 20,30 Article IV of Republic Act No. 6425, as amended, the proper penalty to be
imposed for the illegal sale of 0.03 gram of shabu would be prision correccional. Also, in this case, the
appellant had in his possession 0.15 gram of shabu, which is punishable also with imprisonment of prision
correccional. Thus, applying the Indeterminate Sentence Law, the appellant must be sentenced to an
imprisonment of six months of arresto mayor, as minimum, to four years and two months of prision
correccional, as maximum, in Criminal Case No. CBU-55062, as well as in Criminal Case No. CBU-55063. 31
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Still unsatisfied, the appellant appealed the Court of Appeals Decision to this Court via Notice of Appeal.32

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Both the appellant and the Office of the Solicitor General manifested 33 that they would no longer file their
respective supplemental briefs as the issues have already been fully discussed in their respective appeal
briefs34 with the Court of Appeals.
The appellants assignment of errors as stated in his Appellants Brief are as follows:

I.

II.

III.

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The Regional Trial Court erred in convicting the [herein appellant] notwithstanding the inherent
incredibility of evidence for the prosecution;
The Regional Trial Court gravely erred in allowing the evidence of the prosecution despite the
indubitable evidence that the [appellant] i[s] innocent of the crime[s] charged; [and]
The Regional Trial Court erred in convicting the [appellant] in spite of the failure of the prosecution
to prove the guilt of the [appellant] beyond reasonable doubt. 35
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The appellant avers that the testimony of the poseur-buyer was absurd, illogical, contrary to reason and
highly incredible for no person who is engaged in an illegal transaction would leave the door of the house
open after such transaction. Moreover, no person would sell shabu to a buyer when he knew all along that
the said buyer was a police officer as it was ridiculous to expose oneself to the danger of being caught and
arrested.
The appellant similarly holds that the entry in the house was illegal and there was certainly no transaction
that took place therein. The search and the seizure made in connection thereto were also invalid. Thus, the
pieces of evidence allegedly obtained by the police officers were inadmissible for being the fruit of a
poisonous tree. The same cannot be used against him in violation of his rights.
The appellant believes that the prosecution failed to prove his guilt beyond reasonable doubt as their
testimonies as to the facts and circumstances surrounding the case were contrary to human conduct,
especially with regard to the allegation that he knowingly maintained a drug den, since he was no longer the
owner of the house, which was the subject of the search, and he did not live there anymore.
The appellants contentions are devoid of merit.
In essence, the issues in this case hinge on the credibility of the testimonies of the prosecution witnesses.
It is a fundamental rule that findings of the trial court which are factual in nature and which involve the

credibility of witnesses are accorded with respect, more so, when no glaring errors, gross misapprehension
of facts, and speculative, arbitrary, and unsupported conclusions can be gathered from such findings. The
reason behind this rule is that the trial court is in a better position to decide the credibility of witnesses
having heard their testimonies and observed their deportment and manner of testifying during the
trial.36 The rule finds an even more stringent application where the trial courts findings are sustained by the
Court of Appeals.37
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After a careful perusal of the records, this Court finds no cogent or compelling reason to overturn the
findings of both lower courts, which were adequately supported by the evidence on record.
To secure a conviction for illegal sale of dangerous drugs, like shabu, the following essential elements
must be duly established: (1) identity of the buyer and the seller, the object, and consideration; and (2) the
delivery of the thing sold and the payment therefor.38 Succinctly, the delivery of the illicit drug to the poseurbuyer, as well as the receipt of the marked money by the seller, successfully consummates the buy-bust
transaction. Hence, what is material is the proof that the transaction or sale transpired, coupled with the
presentation in court of the corpus delicti as evidence.39
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In the case at bench, the prosecution was able to establish the above-enumerated elements beyond moral
certainty. The prosecution witnesses adequately proved that a buy-bust operation actually took place on
which occasion the appellant was caught red-handed giving one heat-sealed plastic packet containing white
crystalline substance to PO2 Martinez, the poseur-buyer, in exchange for P100.00. PO2 Martinez, being
the poseur-buyer, positively identified the appellant in open court to be the same person who sold to him the
said one-heat sealed plastic packet of white crystalline substance for a consideration of P100.00, 40 which
when examined was confirmed to be methylamphetamine hydrochloride or shabu per Chemistry Report No.
D-1782-2000 issued by P/Sr. Insp. Salinas, Head, Chemistry Branch, PNP Regional Crime Laboratory Office
7. Upon presentation thereof in open court, PO2 Martinez duly identified it to be the same object sold to him
by the appellant as it had the marking VRR-8-31-2000 (buy-bust), which SPO1 Fernandez had written
thereon in their presence.41This testimony of PO2 Martinez was corroborated by P/Sr. Insp. Sanchez, who
was just five to eight meters away from the former and the appellant during the sale transaction. 42
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Evidently, the prosecution had established beyond reasonable doubt the appellants guilt for the offense of
illegal sale of shabu in violation of Section 15, Article III of Republic Act No. 6425, as amended.
We already had occasion to show the unacceptability of the contention of the appellant that the testimony of
the poseur-buyer was absurd, illogical, contrary to reason and highly incredible for no person who is
engaged in an illegal transaction would leave the door of the house open after such transaction. In case after
case, we observed that drug pushers sell their prohibited articles to any prospective customer, be he a
stranger or not, in private as well as in public places, even in the daytime. Indeed, the drug pushers
have become increasingly daring, dangerous and, worse, openly defiant of the law. Hence, what matters
is not the existing familiarity between the buyer and the seller or the time and venue of the sale, but the
fact of agreement and the acts constituting the sale and the delivery of the prohibited drugs. 43
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With regard to the offense of illegal possession of dangerous drugs, like shabu, the following elements
must be proven: (1) the accused is in possession of an item or object that is identified to be a prohibited
drug; (2) such possession is not authorized by law; and (3) the accused freely and consciously possesses
the said drug.44 All these elements have been established in this case.
On the occasion of the appellants arrest for having been caught in flagrante delicto selling shabu, PO3
Yanson conducted a body search on the former resulting to the recovery of four more heat-sealed plastic
packets containing white crystalline substance inside his wallet that was tucked in his pocket with an
aggregate weight of 0.15 gram, which were later confirmed to be methylamphetamine
hydrochloride or shabu. PO3 Yanson identified in open the court the said four heat-sealed plastic packets
of shabu with markings VRR-8-31-2000-02 to VRR-8-31-2000-05 written thereon by SPO1 Fernandez to
be the same objects recovered from the appellant.45 PO2 Martinez, the poseur-buyer, corroborated this
testimony of PO3 Yanson.46
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Definitely, the records do not show that the appellant has the legal authority to possess the four heat-sealed
plastic packets of shabu. Settled is the rule that possession of dangerous drugs constitutesprima
facie evidence of knowledge or animus possidendi sufficient to convict an accused in the absence of a
satisfactory explanation of such possession. As such, the burden of evidence is shifted to the accused to
explain the absence of knowledge or animus possidendi,47 which the appellant in this case miserably failed to
do.

There is also no truth on the appellants claim that the entry in the house was illegal making the search and
the seizure in connection thereto invalid, rendering the pieces of evidence obtained by the police officers
inadmissible for being the fruit of a poisonous tree.
This Court in Dimacuha v. People48 clearly states:
The Constitution enshrines in the Bill of Rights the right of the people to be secure in their persons, houses,
papers and effects against unreasonable searches and seizures of whatever nature and for any purpose. To
give full protection to it, the Bill of Rights also ordains the exclusionary principle that any evidence obtained
in violation of said right is inadmissible for any purpose in any proceeding.
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In People v. Chua Ho San [citation omitted] we pointed out that the interdiction against warrantless
searches and seizures is not absolute and that warrantless searches and seizures have long been deemed
permissible by jurisprudence in the following instances: (1) search of moving vehicles; (2) seizure in plain
view; (3) customs searches; (4) waiver or consented searches; (5) stop and frisk situations (Terry search);
and (6) search incidental to a lawful arrest. The last includes a valid warrantless search and seizure
pursuant to an equally warrantless arrest, for, while as a rule, an arrest is considered legitimate if effected
with a valid warrant of arrest, theRules of Court recognizes permissible warrantless arrest, to wit:
(1) arrest inflagrante delicto; (2) arrest effected in hot pursuit; and (3) arrest of escaped prisoners.
Here, the petitioner was caught in flagrante delicto while in the act of delivering 1.15 grams and in actual
possession of another 10.78 grams of methamphetamine hydrochloride (shabu) as a result of an entrapment
operation conducted by the police on the basis of information received from Benito Marcelo regarding
petitioners illegal drug trade. Petitioners arrest, therefore, was lawful and the subsequent seizure of a bag
of shabu inserted inside the cover of her checkbook was justified and legal in light of the prevailing rule that
an officer making an arrest may take from the person arrested any property found upon his person in order
to find and seize things connected with the crime. The seized regulated drug is, therefore, admissible
in evidence, being the fruit of the crime.49 (Emphasis supplied).
To repeat, the appellant, in this case, was caught in flagrante delicto selling shabu, thus, he was lawfully
arrested. Following Dimacuha, the subsequent seizure of four heat-sealed plastic packets ofshabu in the
appellants wallet that was tucked in his pocket was justified and admissible in evidence for being the fruit of
the crime.
With the foregoing, this Court is fully convinced that the prosecution had likewise proved beyond a shadow
of reasonable doubt that the appellant is guilty of the offense of illegal possession of shabu in violation of
Section 16, Article III of Republic Act No. 6425, as amended.
Going to the charge of maintaining a drug den in violation of Section 15-A, Article III of Republic Act No.
6425, as amended, the prosecution had also established appellants guilt beyond reasonable doubt.
A drug den is a lair or hideaway where prohibited or regulated drugs are used in any form or are found. Its
existence may be proved not only by direct evidence but may also be established by proof of facts and
circumstances, including evidence of the general reputation of the house, or its general reputation among
police officers.50 In this case, this fact was proven by none other than the testimony of PO2 Martinez,
the poseur-buyer, who after buying the shabu had told the appellant that he wanted to sniff the same to
which the latter responded by requiring the former to pay a rental fee of P10.00. The appellant, thereafter,
allowed PO2 Martinez to enter his house and directed him to proceed to one of the rooms located at the
right side of the sala. Upon entering the said room, PO2 Martinez saw three other persons already
sniffing shabu.51 This testimony of PO2 Martinez was corroborated by PO3 Yanson and P/Sr. Insp.
Sanchez.52
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Moreover, as aptly observed by the Court of Appeals, several peso bills were found in the appellants wallet,
including three P10.00 peso bills, which circumstances bolstered the prosecutions assertion that the
appellant has indeed allowed his house to be used as a drug den for a fee of P10.00 per person. 53
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In his attempt to exonerate himself, the appellant vehemently asserts that he was no longer the owner of
the house in Barangay T. Padilla, Cebu City, and he was no longer residing therein. The defense also
presented Teresita Bitos to corroborate this claim of the appellant.
The testimony of Teresita Bitos corroborating the appellants testimony was not credible. She herself
admitted that the appellant requested her to testify in his favor.54
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Also, considering the seriousness of the charges against the appellant, he did not bother to present his
daughter, who is the alleged owner of the house in Barangay T. Padilla, Cebu City, to bolster his claim.
Time and again, this Court held that denial is an inherently weak defense and has always been viewed upon
with disfavor by the courts due to the ease with which it can be concocted. Inherently weak, denial as a
defense crumbles in the light of positive identification of the appellant, as in this case. The defense of denial
assumes significance only when the prosecutions evidence is such that it does not prove guilt beyond
reasonable doubt, which is not the case here. Verily, mere denial, unsubstantiated by clear and convincing
evidence, is negative self-serving evidence which cannot be given greater evidentiary weight than the
testimony of the prosecution witness who testified on affirmative matters. 55 Moreover, there is a presumption
that public officers, including the arresting officers, regularly perform their official duties. 56 In this case, the
defense failed to overcome this presumption by presenting clear and convincing evidence. Furthermore, this
Court finds no ill motive that could be attributed to the police officers who had conducted the buy-bust
operation. Even the allegation of the appellant that PO2 Martinez got angry with him when he failed to
pinpoint the big time pusher cannot be considered as the ill motive in implicating the appellant on all the
three charges against him for this is self-serving and uncorroborated.
Given all the foregoing, this Court sustains the appellants conviction on all the charges against him.
WHEREFORE, premises considered, the Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 00579
dated 9 August 2010 is hereby AFFIRMED in toto. No Costs.
SO ORDERED.

[G.R. No. L-58284. November 19, 1981.]

IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS. BERNABE BUSCAYNO,
JOSE MA. SISON and JULIET SISON, Petitioners, v. MILITARY COMMISSIONS NOS. 1, 2, 6 and 25,
GENERAL FABIAN VER, GENERAL FIDEL RAMOS, LIEUTENANT COLONEL VIRGILIO SALDAJENO,
CAPTAIN MELCHOR A. ACOSTA and REVIEW BOARD OF THE ARMED FORCES OF THE
PHILIPPINES, Respondents.
Juan T. David, for Petitioners.
Solicitor General Estelito P. Mendoza, Assistant Solicitor General Ramon A. Barcelona and
Solicitor Franklin S. Farolan for Respondents.
SYNOPSIS

Petitioners were charged with subversion by the Military Commission in different charge sheets on different
dates for acts committed prior to the effectivity of Presidential Decree No. 885 on May 11, 1976 amending
Republic Act No. 1700, the Anti-Subversion Law. The three petitioners were all charged with rebellion in an
amended charge sheet but only the subversion and murder cases against Buscayno were decided by the
Military Commission with the penalty of death by firing squad although the decision is still subject to review.
In the Supreme Court, a petition for habeas corpus for Buscayno in L-475185 (102 SCRA 7) and a petition
for habeas corpus, prohibition and mandamus filed by the Sison spouses and the Buscayno spouses in L49579 were both dismissed on January 15, 1981. Hence, this petition for habeas corpus, prohibition and
mandamus.
The Supreme Court in resolving the issues raised, ruled that the privilege of the writ of habeas corpus is
suspended as to petitioners who are under detention for rebellion or subversion, hence they are not entitled
to bail; the issue as to whether Buscayno was denied the right to present evidence, the propriety of the
perpetuation proceedings in the rebellion case and the conduct of the trial of the Commission cannot at this
stage be passed upon by this Court but for the guidance of the parties, the Court held further that
petitioners have not been placed in jeopardy as no case against them has been terminated and that acts
committed before the effectivity of Presidential Decree No. 885 shall be prosecuted and punished under
Republic Act No. 1700.
Petition dismissed.

SYLLABUS

1. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; PRIVILEGE OF THE WRIT OF
HABEAS CORPUS; SUSPENDED AS TO PERSONS DETAINED FOR REBELLION AND SUBVERSION AND ARE
NOT ENTITLED TO BAIL; CASE AT BAR. Petitioners have not been illegally deprived of their liberty and
there is no justification to order their release where Proclamation No. 2045 dated January 17, 1981 explicitly
provides that persons, like petitioners who are under detention for rebellion and the capital offense of
subversion, cannot enjoy the privilege of the writ of habeas corpus and because the said privilege is
suspended as to them, they are not entitled to bail (Lansang v. Garcia, L-33964, December 11, 1971 and
eight other cases, 42 SCRA 448).
2. ID.; JUDICIARY; SUPREME COURT; REVIEW OF RULINGS AND PROCEEDINGS OF THE MILITARY
COMMISSION UNDER THE NATIONAL SECURITY CODE; SCOPE. Ordinarily this Court cannot review the
rulings and proceedings of the military commissions except under the National Security Code, Presidential
Decree No. 1498, which was issued on June 11, 1978 (74 O.G. 11066) which provides in its Sections 86 (f)
and 87 (e) that what this Court can review are the decisions of the Court of Military Appeals in cases
appealed to it from the military commissions.
3. ID.; ID.; ID.; ADMINISTRATIVE SUPERVISION OVER CIVIL COURTS; DOES NOT INCLUDE THE MILITARY
COMMISSION; CASE AT BAR. Generally this Court does not exercise over military commissions the
supervisory jurisdiction which it possesses over civil courts whose interlocutory rulings and decisions may be
reviewed by this Court (See Kuroda v. Jalondoni, 83 Phil. 171; Martelino v. Alejandro, L-30894, March 25,
1970, 32 SCRA 106). Hence, the issue as to whether Buscayno was denied his constitutional right to present
evidence should first be passed upon by the reviewing military authority and not by the Supreme Court. The
propriety of the perpetuation proceedings in the rebellion case and the conduct of the trial in the
Commission cannot at this stage be passed upon by the Supreme Court.
4. CRIMINAL LAW; ANTI-SUBVERSION LAW; NOT REPEALED BY PRESIDENTIAL DECREE NO. 885 AS TO
ACTS COMMITTED IN VIOLATION OF THE FORMER LAW. The Revised Anti-Subversion Law (P.D. No. 885),
in repealing or superseding Republic Act No. 1700, expressly provides in its Section 7 that "acts committed
in violation of the former law before the effectivity of said decree "shall be prosecuted and punished in
accordance with the provisions of the former Act" and that nothing in said decree "shall prevent prosecution
of cases pending for violation of" Republic Act No. 1700. That saving or transitory clause is re-enacted in
Section 14(i) of the National Security Code.
5. ID.; REVISED ANTI-SUBVERSION LAW; DETERMINATION OF WHETHER A PARTY IS A SUBVERSIVE
ORGANIZATION; THE PURPOSE IS CONTROLLING. The fact that Presidential Decree No. 885 does not
mention the Communist Party of the Philippines does not mean that the party is no longer regarded as
subversive organization. The purpose of the party is the decisive factor in determining whether it is a

subversive organization.
6. REMEDIAL LAW; CRIMINAL PROCEDURE; DOUBLE JEOPARDY; "SAME OFFENSE" DEFINED. As may be
gleaned from Section 9, Rule 117 of the Rules of Court "same offense" means the offense charged, or an
attempt to commit it or a frustrated stage thereof, or "any offense which necessarily include or is necessarily
included in the offense charged in the former complaint or information."
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7. ID.; ID.; ID.; ESSENTIAL REQUISITES. For an accused to be in jeopardy, it is necessary (1) that a valid
complaint or information or other formal charge sufficient in form and substance to sustain a conviction is
filed against him; (2) that the charge it filed in a court of competent jurisdiction; and (3) that after he had
pleaded to the charge, he was convicted or acquitted or the case against him was dismissed or otherwise
terminated without his express consent (People v. Pilpa, L-30250, September 22, 1977, 79 SCRA 81).
8. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHTS OF THE ACCUSED; RULE ON DOUBLE JEOPARDY;
CANNOT BE INVOKED IF THE CASE IS NOT YET TERMINATED; CASE AT BAR. To be in jeopardy, the case
against the accused must be terminated by means of a final conviction, acquittal or dismissal without his
express consent. If the case is not yet terminated, then jeopardy does not set in. After the accused has been
put in jeopardy, the filing against him of another charge for the same offense or for an attempt or frustrated
stage thereof or for any offense which necessarily includes or is included in the offense originally charged
places him in double jeopardy which is forbidden by Section 23, Article IV of the Constitution or by the rule
against double jeopardy: nemo bis punitur pro eodem delicto (no one is twice punished for the same
offense) or non bis in idem which is analogous to res judicata in civil cases. Hence, because no case against
the petitioners has been terminated, as only the subversion case against Buscayno was decided but the
decision is still subject to review, it is at once evident that they cannot invoke the rule on double jeopardy.
9. CRIMINAL LAW; REBELLION AND SUBVERSION DISTINGUISHED; CASE AT BAR. Petitioners contention
that rebellion is an element of the crime of subversion is not correct because subversion does not
necessarily include rebellion. Subversion, like treason, is a crime against national security while rebellion is a
crime against public order. Rebellion is an offense that has existed in the Penal Code for a long time. It may
be committed by noncommunists without collaborating with the agents of an alien power. In contrast, the
crime of subversion came into existence when the communists sought to dominate the world in order to
establish a new social, economic and political order. In the case at bar, petitioners were accused of rebellion
for having allegedly undertaken a public uprising to overthrow the government. In contrast, they were
accused of subversion for being allegedly officers and ranking members of the Communist Party and similar
subversive groups. The alleged overt acts of resisting the armed forces were incidental to the main charge of
beings leaders of subversive or revolutionary organizations collaborating with an alien power to make the
country a satellite thereof.
10. REMEDIAL LAW; MOTION TO QUASH; DOUBLE JEOPARDY; NOT A CASE OF; CHARGES OF REBELLION
AND SUBVERSION WHOSE OVERT ACTS ARE DIFFERENT; CASE AT BAR. The issue on double jeopardy
raised by the petitioners was resolved by the Supreme Court in People v. Liwanag alias Linda Bie, L-27683,
October 19, 1976, 73 SCRA 473, where it was held that there was no double jeopardy because Liwanag was
convicted of rebellion for acts committed before the Anti-Subversion Law took effect while the subversion
charge referred to his act of having remained an officer and ranking leader of the CPP and HMB from the
time the Anti-Subversion Law took effect on June 20, 1957 up to his capture in 1960. In the instant case,
the rebellion charge against the petitioners embraced the acts committed by them on or about February 4,
1972 and during the period from August, 1973 to February, 1974. The subversion charge against Buscayno
involved his acts committed in 1965, 1967, 1969, 1970 and 1971. The subversion charge against the Sison
spouses referred to their acts committed in 1968 and for sometime prior and subsequent thereto. The
common denominator of the rebellion and subversion charges is that the petitioners committed overt acts as
alleged communists or leftists. The overt acts in the two charges are different.
11. CONSTITUTIONAL LAW; ANTI-SUBVERSION LAW; CONSTITUTIONAL ON THE GROUND OF SELFPRESERVATION OF THE STATE. A statute which punishes membership in a party or association that
advocates the overthrow or destruction of the government by force or violence is justified on the ground of
self-preservation. The constitutionality of the Anti-Subversion Law was upheld in People v. Ferrer, L-326l3-l4,
December 27, 1972, 48 SCRA 382 and 56 SCRA 793. Long before the passage of the Anti-Subversion Law
membership in illegal associations has been penalized. (Art. 146, Revised Penal Code)
FERNANDO, C.J., concurring and dissenting:

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1. CONSTITUTIONAL LAW; JUDICIARY; POWER OF THE SUPREME COURT TO REVIEW ACTUATIONS OF

MILITARY TRIBUNALS; QUESTION OF JURISDICTION MUST BE RAISED. On the question of the power of
this Court to review actuations of military tribunals, Chief Justice Fernando adheres to the decision in Go v.
Gen. Olivas, L-44989, Nov. 29, 1978. That petition for habeas corpus was dismissed on the basic principle
that no jurisdictional question was raised by the person detained. Nonetheless, the Supreme Court made
clear what are the guiding principles to determine its jurisdiction whenever the actuation of a military
tribunal is challenged before it. Thus: In Aquino v. Military Commission No. 2, the Supreme Court ruled that
there is no constitutional objection to military tribunals conducting trials of civilians for certain specified
offenses, among which is kidnapping. That does not preclude the judiciary from granting in appropriate case
applications for the return of habeas corpus. There is, however, this limitation. The jurisdictional question
must be squarely raised.
2. ID.; ID.; ID.; ID.; PROCEEDINGS OF A MILITARY OR NAVAL COURT CANNOT BE REVIEWED WHERE
JURISDICTION HAS BEEN ACQUIRED. As was said by the Supreme Court of the United States in a case
where the writ of habeas corpus had been sued out to liberate a person detained by virtue of the sentence
of a court-martial, the civil courts exercise no supervisory or correcting power by the writ of habeas
corpus over the proceedings of a court-martial and no mere errors in their proceedings are open to
consideration. The single inquiry, the test, is jurisdiction. That being established, the habeas corpus must be
denied and the petitioner remanded. That wanting, it must be sustained and the petitioner discharged. As
otherwise stated the rule is that the proceedings of a military or naval court cannot be reviewed
upon habeas corpus when it appears that such tribunal had jurisdiction over the offense charged and that
the offender was a person amenable to its authority.
3. ID.; ID.; ID.; MILITARY TRIBUNALS ARE BOUND TO OBSERVE FUNDAMENTAL RULES OF LAW AND
PRINCIPLES OF JUSTICE. In the same case of Aquino, Chief Justice Fernando quoted the pronouncement
made by Justice Antonio speaking for the Court that: "It is important to note here that an accused being
tried before a military tribunal enjoys the specific constitutional safeguards pertaining to criminal trials.
Thus, he is entitled to be heard by himself and counsel, to be informed of the nature and cause of the
accusation, to meet the witnesses face to face, to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf, and to be exempt from being a witness against
himself. As in trial before civil courts, the presumption of innocence can only be overcome by evidence
beyond reasonable doubt of the guilt of the accused. These tribunals, in general, are bound to observe the
fundamental rules of law and principles of justice observed and expounded by the civil judicature.
4. ID.; ID.; ID.; NEED OF RE-EXAMINATION OF THE DOCTRINE THAT SUSPENSION OF THE PRIVILEGE OF
HABEAS CORPUS CARRIES WITH IT THE SUSPENSION OF THE RIGHT TO BAIL. Chief Justice Fernando
votes for a re-examination of the doctrine that suspension of the privilege of the writ ofhabeas
corpus carries with it the suspension of the right to bail which was his view as one of the counsel in
Hernandez v. Montesa (90 Phil. 172), heard and thereafter decided in one opinion with Nava v. Gatmaitan.
He pointed out that as set forth in the dissenting opinion of Justice Teehankee, that was also the view of the
majority but unfortunately, there was one vote short of the necessary six affirmative votes at that time.
5. ID.; ID.; ID.; ONLY ONE MILITARY COMMISSION SHOULD CONTINUE TRIAL OF PETITIONERS. Chief
Justice Fernando observes that efforts had been made by counsel for petitioners to have the cases
transferred to the civil courts for which he is elated if it succeeds, since it would put an end to the
jurisdiction of military tribunals over civilians. And the evidence before the military commission which were
offered in due regard of the constitutional rights of an accused may still be relied upon by the civil courts to
which they may be transferred. On the other hand, if such effort fails, he desires that there be only one
military commission to continue with the trial of the petitioners.
TEEHANKEE, J., dissenting:

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1. CONSTITUTIONAL LAW; JUDICIARY; JUDICIAL POWER; GENERAL ORDER NO. 8 CREATING MILITARY
TRIBUNAL REVOKED BY PRESIDENTIAL PROCLAMATION NO. 2045. On the denial of the right of civilians
to trial by judicial process, Justice Teehankee reiterates his dissent in Aquino v. Military Commission No. 2
(63 SCRA 546) and in the latest cases of Buscayno v. Enrile (L-47l85, 102 SCRA 7, 21), Sison v. Enrile (L49579, 102 SCRA 33, 38) and Luneta v. Special Military Commission No. 1 (102 SCRA 56, 68) all decided
before the issuance of Proclamation No. 2045, and holds that in view of the lifting of martial law under
Proclamation No. 2045, and the revocation thereunder of General Order No. 8 creating military tribunals, as
well as the pronouncement of the Supreme Court in Sison on the phaseout of military tribunals, there is no
longer any justification for continuing to subject petitioners-civilians to trial by military commissions in
derogation of the judicial power vested exclusively in the civil courts.

2. ID.; ID.; MILITARY COMMISSIONS OR TRIBUNALS ARE NOT COURTS. Military commissions or tribunals
are not courts and do not form part of the judicial system. Since we are not enemy-occupied territory nor
are we under a military government, the military tribunals cannot try and exercise jurisdiction over civilians
for civil offenses committed by them which are properly cognizable by the civil courts that have remained
open and have been regularly functioning.
3. ID.; ID.; ID.; MILITARY TRIBUNALS; DISSOLVED UNDER PROCLAMATION No. 2045 BUT VESTED WITH
FINAL DETERMINATION AS TO WHAT CASES PENDING BEFORE THEM MAY BE TRANSFERRED TO CIVIL
COURTS WITHOUT PREJUDICE TO THE STATE. There has been no showing by respondents that the cases
against petitioners fall within the only exception provided in Proclamation No. 2045 wherein the military
tribunals which are therein dissolved may make a "final determination," to wit, "cases pending therein which
may not be transferred to the civil courts without irreparable prejudice to the State in view of rules on
double jeopardy, or other circumstances which render further prosecution of the cases difficult, if not
impossible" in the face of petitioners assertion and insistence that the military tribunals have no jurisdiction
over them as civilians.
4. ID.; BILL OF RIGHTS; RIGHT TO BAIL; ACCUSED ARE ENTITLED TO BAIL EVEN IF COVERED BY
PROCLAMATION OF SUSPENSION OF THE PRIVILEGE OF THE WRIT OF HABEAS CORPUS. Justice
Teehankee reiterates hit adherence to the majority opinion in the 1951 leading cases of Nava v. Gatmaitan
and Hernandez v. Montesa (90 Phil. 172) (although it failed one vote short of the required majority of six
affirmative votes at the time) that after formal indictment in court by the filing against them of an
information charging rebellion with murder, etc., Accused persons covered by the proclamation of the
suspension of the privilege of the writ of habeas corpus are entitled to bail. He quoted the pronouncement of
the then Chief Justice Ricardo Paras that "The right to bail, along with the right of an accused to be heard by
himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy
and public trial, to meet the witnesses face to face, and to have compulsory process to secure the
attendance of witnesses in his behalf (Article III, Section 1, Paragraph 17, of the Constitution), tends to aid
the accused to prove his innocence and obtain acquittal. If it be contended that the suspension of the
privilege of the writ of habeas corpus includes the suspension of the distinct right to bail or to be
provisionally at liberty, it would of fortiori imply the suspension of all his other rights (even the rights to be
tried by a court) that may win for him ultimate acquittal, and, hence, absolute freedom. The latter result is
not insisted upon for being patently untenable."
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5. ID.; JUDICIARY; POWER; DENIAL TO THE SUPREME COURT OF THE RIGHT TO REVIEW RULINGS AND
PROCEEDINGS OF MILITARY COMMISSIONS DOES NOT CARRY THE AFFIRMANCE OF THE MAJORITY OF THE
COURT. Justice Teehankee notes that the statements in the main opinion that would deny to the Supreme
Court the right to "review the rulings and proceedings of the military commission" or at best limit such
review "to decisions of the Court of Military Appeals in cases appealed to it from the military commission"
does not carry the affirmance of a majority of the Court that would unsettle or overthrow its consistent
exercise of its judicial power and jurisdiction through the prerogative writs of certiorari and prohibition
or habeas corpus over cases including military commissions (in whatever stage of the proceedings) where a
violation or denial of constitutional rights is asserted by the aggrieved party, although not always with
successful results.
6. ID.; ID.; ID.; SUPREME COURT EXERCISED ITS JURISDICTION OVER MILITARY COMMISSION IN ITS
RESOLUTION DATED OCTOBER 22, 1981 ISSUED IN CASE AT BAR. In this very case, the Supreme Court
did again exercise, with the required concurrence of at least eight (8) members, its jurisdiction over
proceedings in the military commissions per its Resolution of October 22, 1981 through the issuance of a
temporary restraining order enjoining respondent military commissions "from proceeding with the trial of
petitioners . . . until otherwise ordered by the Court."
DECISION
AQUINO, J.:
Bernabe Buscayno alias Commander Dante and Jose Ma. Sison alias Amado Guerrero, alleged subversives
classified as "PKP/HMB/CPP/MAMAO and Traditional Armed Group personalities," were wanted by the
authorities since 1971.

In Department Order No. 610 Undersecretary of National Defense Efren I. Plana fixed P150,000 and P50,000
as the prizes to be paid to any person who kills, captures or causes the killing, capture or surrender of
Buscayno and Sison, respectively, or who furnishes information directly leading to and which is the
proximate result of their killing or capture. (p. 96, Rollo of L-47185)
Buscayno and Sison were included in the so-called "National Target List" of active participants in the
conspiracy to seize political and state power and to take over the government by force whose arrest was
ordered under General Order No. 2 dated September 22, 1972. The list was prepared by Colonel Hamilton B.
Dimaya. (p. 95, Rollo of L-47185)
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Buscaynos cases. Even before Buscaynos arrest, he and Benigno S. Aquino, Jr. (arrested on September
23, 1972) were charged before Military Commission No. 2 in an amended charged sheet dated August 14,
1973 with subversion or violation of the Anti-Subversion Law, Republic Act No. 1700.
It was alleged that as ranking leaders of the Communist Party of the Philippines and its military arms, the
Hukbong Mapagpalaya ng Bayan and the New Peoples Army, constituting an organized conspiracy to
overthrow the government by force or placing it under the control of an alien power, they committed the
following acts (Criminal Case No. MC-2-23, pp. 71-75, Rollo of L-47185):
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1. In April, 1969, Aquino at 25 Times Street, Quezon City gave P15,000 to the said organizations for the
purpose of staging an NPA-sponsored demonstration in Manila which was in fact carried out in Congress,
Malacaang and the American Embassy on April 19, 1969 to achieve the objectives of the said
organizations.
2. Aquino in 1967 gave to Buscayno in Concepcion, Tarlac a .45 caliber pistol with magazine and ammunition
to be used against the government.
3. Aquino in August, 1967 in the house of Leonida Arceo located at Barrio San Francisco, Tarlac, Tarlac gave
to Buscayno two .45 caliber pistols to be used against the government.
4. Aquino in October, 1969 in Barrio Alto, Hacienda Luisita, San Miguel, Tarlac, Tarlac, gave to Commanders
Arthur Garcia and Jose Buscayno two armored vests and a pair of walkie-talkies to be used against the
government.
5. Aquino on November 1 and 2, 1965 in San Miguel, Tarlac, Tarlac, gave to Commander Alibasbas through
Commander Danilo several firearms and ammunition which were taken from the house of Manuel Rodriguez
and which were to be used against the government and in fact the said firearms were recovered from
Commander Alibasbas and his group when they were killed in Barrio Almendras, Concepcion, Tarlac.
6. Aquino in 1970 and 1971 at 25 Times Street, Quezon City provided shelter and medical treatment for
Roberto Santos alias Commander Felman, Benjamin Sanguyo alias Commander Pusa and eight other sick or
wounded officers or members of the HMB and NPA.
Aquino, Buscayno, Peter Ilocano and Puriok, as conspirators, were also charged with murder before Military
Commission No. 2 in a charge sheet dated August 7, 1973. It was alleged that during the last days of
November to December 2, 1967 they took Cecilio Sumat, a barrio captain of Motrico, La Paz, Tarlac, from his
house and killed him in Barrio San Miguel, Tarlac, Tarlac (Criminal Case No. MC-2-22, pp. 76-77, Rollo of L47185).
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In Criminal Case No. MC-1-92, Buscayno, with ninety-one other persons including Sison and his wife, Juliet
de Lima, Saturnino Ocampo and Mila Astorga-Garcia, were charged with rebellion before Military
Commission No. 1 in a charge sheet dated March 18, 1977.
It was alleged that on or about February 4, 1972 and for sometime prior or subsequent thereto the ninetytwo accused as officers and leaders of the Communist Party of the Philippines and its military arm, the New
Peoples Army, and as conspirators rose publicly and took up arms against the government in Navotas, Rizal
and elsewhere in the Philippines for the purpose of removing from the allegiance to said government or its
laws the territory of the Philippines or any part thereof or of its armed forces by organizing the Karagatan
Fishing Corporation and operating the M/V Karagatan, a fishing vessel, to procure firearms and ammunition
for the CPP and NPA as in fact war materials and armaments were landed at Digoyo Point, Palanan, Isabela
on July 2, 1972 from Communist China and were used against the army.

The second specification in Criminal Case No. MC-1-92 is that Buscayno, Sison and others during the period
from August, 1973 to February, 1974 committed rebellion in Manila, Baguio, La Union, Pangasinan, Bulacan
and elsewhere in the Philippines by acquiring, purchasing and operating vessels, motor vehicles, beach
houses, lots and other real and personal properties for use in distributing firearms and ammunition for the
CPP and NPA to be utilized in resisting the army and overthrowing the government. (pp. 78-91, Rollo of L47185)
The said case was refiled in Special Military Commission No. 1 as Criminal Case No. SMC-1-1 with an
amended charge sheet dated November 8, 1977 (pp. 189-205, Rollo of G.R. No. 58284)
Buscayno was arrested on August 26, 1976 in Barrio Sto. Rosario, Mexico, Pampanga by operatives of the
armed forces. He was detained in the Constabulary Security Unit at Camp Crame. When the trial counsel
informed Buscayno that his presence at the hearing on September 15, 1976 before the Military Commission
No. 2 was necessary, Buscayno in a letter dated September 7, 1976 addressed to the President of the
Commission declared that he had no intention of appearing before the tribunal; that he did not need a
lawyer; that he would not contest the tribunals jurisdiction and that any reference by the prosecution
witnesses to Buscayno alias Commander Dante would be to him and to no other person.
At Buscaynos arraignment in the subversion and murder cases, he waived his right to be present and to
have counsel. He said that he was not challenging any member of the tribunal. He just wanted to have a
record of the trial. He pleaded not guilty. After the prosecution had finished the presentation of its evidence,
Buscayno was asked whether he wanted to present evidence. He answered in writing that he did not want to
present evidence.
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On July 18, 1977, Juan T. David entered his appearance as counsel for Buscayno in Criminal Case No. MC-223 for subversion. On October 25, 1977, lawyer David filed in this Court in behalf of Buscayno a petition
for habeas corpus and prohibition.
As no restraining order was issued, the Commission continued its proceeding against Buscayno and Aquino.
On November 25, 1977, after Buscayno failed to present any evidence in spite of having been given another
chance to do so, his case was deemed submitted for decision. After deliberation, the Commission found all
the accused guilty as charged and imposed death by firing squad. The complete records of the cases were
transmitted to the Secretary of National Defense.
However, four days later or on November 29, the President of the Philippines directed the Commission to
reopen the trial and give Aquino and Buscayno another chance to present their evidence. According to the
petitioners, on December 15, 1977, this Court enjoined the Commission from rehearing the two cases (p.
20, Petition) but no restraining order was actually issued.
This Court in its decision dated January 15, 1981 dismissed Buscaynos petition (L-47185, 102 SCRA 7). We
reiterated the rule that a military tribunal has jurisdiction to try civilians and that the proceeding in a military
commission is not violative of procedural due process and would not be vitiated by partiality. (Aquino v.
Ponce Enrile, L-37364, May 9, 1975, 63 SCRA 546; Gamaua v. Espino, L-36188-37586, February 29, 1980,
96 SCRA 402.) *
On March 27, 1981, Military Commission No. 2 convened to hear Buscaynos evidence in the subversion and
murder cases. His counsel asked for postponement on the ground that he requested the President of the
Philippines to transfer the two cases to the civil courts and that he should be furnished with the transcripts
of the hearings held on November 25 and December 5, 1977. The truth is that he was furnished with those
transcripts on January 8, 1978.
The postponement was granted. The hearing was reset for April 23. At the hearing on that date, Buscaynos
counsel again asked for postponement because the President had not yet acted upon his request for the
transfer of his cases to the civil courts. He challenged the competency of the president of the Commission on
the ground of lack of adequate knowledge of the two cases. The challenge was rejected. Buscayno did not
present any evidence. The Commission considered the cases re-submitted for decision.
On May 4, 1981, the Commission denied Buscaynos motion for the reconsideration of the ruling that his
case was already submitted for decision. It reaffirmed its 1977 decision imposing on Buscayno the penalty of
death by firing squad.
Cases against Sison spouses. They were arrested on November 10, 1977 by virtue of arrest, search and

seizure orders issued by the Secretary of National Defense.

As already stated in connection with the Buscayno case, the Sison spouses and ninety-one other persons
including Buscayno and Victor Corpus were charged with rebellion on two counts before Special Military
Commission No. 1 as shown in the amended charge sheet dated November 8, 1977.
Even before her arrest, Juliet Sison, with fifty-five other persons including Victor Corpus, was charged with
subversion before Military Commission No. 6 (Case No. 55), as shown in the charge sheet dated November
16, 1972.
It was alleged therein that the fifty-six accused, in 1968 and for sometime prior and subsequent thereto,
became and have remained officers and ranking leaders of the CPP and the NPA, the CPPs military arm, and
the CPPs front organizations such as the Kabataang Makabayan (KM), Samahang Demokratikong Kabataan
(SDK), Malayang Samahan ng Magsasaka (MASAKA), Student Alliance for National Democracy (STAND),
Movement for Democratic Philippines (MDP) and Malayang Kilusan ng Bagong Kababaihan (MAKIBAKA),
whose objective is the overthrow of the government for the purpose of establishing a totalitarian regime and
placing the government under the control and domination of an alien power.
It was specified that the accused engaged in extensive indoctrination, agitation and promotion of rallies (ten
instances) and in propagandas, speeches, teach-ins, messages, lectures, all intended to promote the
communist pattern of subversion (eleven instances).
The same charge sheet indicated that the accused rose publicly and took up arms against the government,
engaging in war against the forces of the government and committing serious violence (eight instances).
Juliet Sison was pinpointed as a ranking leader of the Kabataang Makabayan operating in the Bicol region,
helping her husband Jose as KM chairman and editing the periodical Ang Bayan in Isabela in 1971-72
(Annex 3 of Return).
Jose Ma. Sison, with Juanito Canlas, Cesario Diego, Saturnino Ocampo, Antonio Liao, Mila Roque, Alfredo
Granada, Ramon Isberto, Ester Ceniza and Evelyn Sarmiento were charged with subversion under
Presidential Decree No. 885 (which superseded Republic Act No. 1700) before Military Commission No. 25 in
Case No. 113 as shown in the charge sheet dated October 3, 1978.
It was alleged that the ten accused, in or about 1968 and for sometime prior and subsequent thereto and
continuously thereafter, in Capas, Tarlac and elsewhere in the Philippines, wilfully organized and joined as
officers and ranking members of the CPP and the NPA for the purpose of overthrowing the government
through armed revolution, violence and subversion with the covert assistance and support of a foreign power
in order to establish therein a totalitarian regime subject to alien control and domination (Annex 4 of
Return).
In the rebellion case, Case No. SMC-1-1, the Sison spouses and the Buscayno spouses assailed the
jurisdiction of the military tribunal to try civilians like them.
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On January 3, 1979, the Sison spouses, together with the Buscayno spouses, Peter Mutuc, Edgar Pilapil,
Eduardo Lingat, Joaquin Rivera, Leonila Lumbang and Juanito Canlas, filed in this Court a petition for habeas
corpus, prohibition and mandamus (L-49579).
That petition, like Buscaynos petition in L-47185, was dismissed in this Courts decision dated January 15,
1981 (102 SCRA 33).
The instant case. On October 2, 1981, Buscayno and the Sison spouses filed the instant omnibus, catchall
petition for habeas corpus, prohibition and mandamus couched in repetitious, involuted and obfuscatory
verbiage.
They prayed that the decision of Military Commission No. 2 dated May 4, 1981, convicting Buscayno of
subversion and murder and sentencing him to death by firing squad, be declared void because he was
denied his constitutional right to present evidence and that he be released from detention.
They also prayed that the charges of rebellion and subversion be dismissed for being in contravention of the
rule on double jeopardy, that Military Commissions Nos. 1, 6 and 25 be enjoined from proceeding with the
trial of the petitioners and that the petitioners be released. They also prayed that they be granted bail.

The petitioners also asked for the issuance of a temporary restraining order, enjoining the three
Commissions from trying the petitioners, enjoining Military Commission No. 1 from continuing with the
perpetuation of testimonies and from requiring the petitioners to attend the perpetuation proceedings and
enjoining the Review Board-AFP from reviewing the decision in the subversion and murder cases.
Habeas corpus and petitioners release on bail. This is Buscaynos third petition for habeas corpusand the
second petition of the Sison spouses. The ultimate issue is whether they are legally detained. We find that
they have not been illegally deprived of their liberty and that there is no justification to order their release.
Proclamation No. 2045 dated January 17, 1981, which terminated martial law, sanctions the continued
confinement of the petitioners. It provides (77 OG 441);
". . . Now, therefore, I, Ferdinand E. Marcos, President/Prime Minister of the Philippines,. . . proclaim the
termination of the state of martial law throughout the Philippines;
"Provided, that the call to the Armed Forces of the Philippines to prevent or suppress lawless violence,
insurrection, rebellion and subversion shall continue to be in force and effect: and.
"Provided, that in the two autonomous regions in Mindanao, upon the request of the residents therein, the
suspension of the privilege of the writ of habeas corpus shall continue; and in all other places the suspension
of the privilege of the writ shall also continue with respect to persons at present detained as well as others
who may hereafter be similarly detained for the crimes of insurrection or rebellion, subversion, conspiracy or
proposal to commit such crimes, and for all other crimes and offenses committed by them in furtherance or
on the occasion thereof, or incident thereto, or in connection therewith;
"General Order No. 8 is also hereby revoked and the military tribunals created pursuant thereto are hereby
dissolved upon final determination of cases pending therein which may not be transferred to the civil courts
without irreparable prejudice to the state in view of the rules on double jeopardy, or other circumstances
which render further prosecution of the cases difficult, if not impossible;"
Proclamation No. 2045 explicitly provides that persons, like petitioners who are under detention for rebellion
and the capital offense of subversion, cannot enjoy the privilege of the writ of habeas corpus. Because the
privilege of the writ of habeas corpus is suspended as to them, they are not entitled to bail (Lansang v.
Garcia, L-33964, December 11, 1971 and eight other cases, 42 SCRA 448)
Review of rulings of the military commission. Ordinarily, this Court cannot review the rulings and
proceedings of the military commission. The National Security Code, Presidential Decree No. 1498, which
was issued on June 11, 1978 (74 OG 11066), provides in its Sections 86(f) and 87(e) that what this Court
can review are the decisions of the Court of Military Appeals in cases appealed to it from the military
commission.
Generally, this Court does not exercise over military commissions the supervisory jurisdiction which it
possesses over civil trial courts whose interlocutory rulings and decisions may be reviewed by this Court.
(See Kuroda v. Jalandoni, 83 Phil. 171; Martelino v. Alejandro, L-30894, March 25, 1970, 32 SCRA 106)

chanroble s lawlibrary : re dnad

So, the issue as to whether Buscayno was denied his constitutional right to present evidence should first be
passed upon by the reviewing military authority and not by this Court. The propriety of the perpetuation
proceedings in the rebellion case and the conduct of the trial in the Commission cannot at this stage be
passed upon by this Court.
We have definitively ruled that the petitioners can be tried by the military commissions and that their cases
are within the jurisdiction and competence of military tribunals.
Nevertheless, two legal issues regarding double jeopardy and the alleged repeal of the Anti-Subversion Law
may be resolved in the interest of justice, to dissipate any uncertainty and for the guidance of the parties.
Alleged repeal of the Anti-Subversion Law. Juliet de Lima-Sison contends that her criminal liability for
subversion was extinguished when Presidential Decree No. 885 (which took effect on May 11, 1976, 72 OG
3826) repealed Republic Act No. 1700. This contention is bereft of merit.
That decree, which is the Revised Anti-Subversion Law, in repealing or superseding Republic Act No. 1700,

expressly provides in its Section 7 that "acts committed in violation" of the former law before the effectivity
of the said decree "shall be prosecuted and punished in accordance with the provisions of the former Act"
and that nothing in the said decree "shall prevent prosecution of cases pending for violation of" Republic Act
No. 1700. That saving or transitory clause is reenacted in section 14(i) of the National Security Code.
It is similar to article 366 of the Revised Penal Code which provides that felonies and misdemeanors
committed prior to the effectivity of the Revised Penal Code shall be punished in accordance with the old
Penal Code and the laws in force at the time of their commission.
The fact that Presidential Decree No. 885 does not mention the CPP does not mean that the party is no
longer regarded as a subversive organization. The purpose of the party is the decisive factor in determining
whether it is a subversive organization.
The issue of double jeopardy. The petitioners invoke their constitutional right not to be put twice in
jeopardy of punishment for the same offense. As may be gleaned from Section 9, Rule 117 of the Rules of
Court, "same offense" means the offense charged, or an attempt to commit it or a frustrated stage thereof,
or "any offense which necessarily includes or is necessarily included in the offense charged in the former
complaint or information."
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For an accused to be in jeopardy, it is necessary (1) that a valid complaint or information or other formal
charge sufficient in form and substance to sustain a conviction is filed against him; (2) that the charge is
filed in a court of competent jurisdiction and (3) that after he had pleaded to the charge, he was convicted
or acquitted or the case against him was dismissed or otherwise terminated without his express consent
(People v. Pilpa, L-30250 September 22, 1977, 79 SCRA 81)
To be in jeopardy, the case against the accused must be terminated by means of a final conviction, acquittal
or dismissal without his express consent. If the case is not yet terminated, then jeopardy does not set in.
After the accused has been put in jeopardy, the filing against him of another charge for the same offense or
for an attempt or frustrated stage thereof or for any offense which necessarily includes or is included in the
offense originally charged places him in double jeopardy.
That is forbidden by Section 22, Article IV of the Constitution or by the rule against double jeopardy: nemo
bis punitur pro eodem delicto (no one is twice punished for the same offense) or non bis in idem which is
analogous to res judicata in civil cases.
As stated earlier, Buscayno was charged with subversion together with Aquino in a 1973 charge sheet. Jose
Ma. Sison was charged with subversion in a 1978 charge sheet. His wife, Juliet de Lima, was charged with
subversion in a 1972 charge sheet. The three petitioners were all charged with rebellion in an amended
charge sheet dated November 8, 1977. Only the subversion case against Buscayno was decided but the
decision is still subject to review.
Because no case against the petitioners has been terminated, it is at once evident that they cannot invoke
the rule on double jeopardy. The petitioners have not yet been placed in jeopardy.
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In Bulaong v. People, L-19344, July 27, 1966, 17 SCRA 746, Agaton Bulaong was charged with rebellion in
the Laguna Court of First Instance and later with subversion in the Manila Court of First Instance in
connection with his activities as an officer of the CPP and HMB. He was convicted of rebellion by the Laguna
court. The Court of Appeals affirmed the judgment of conviction. He appealed to this Court. The subversion
case was still pending in the Manila court.
In this Court, he contended that because rebellion is an offense cognate with subversion and that the two
informations contain the same facts, he could not be tried for rebellion and subversion without being placed
twice in jeopardy for the same acts.
It was held that the defense of double jeopardy should be interposed by Bulaong in the subversion case. He
could not plead double jeopardy in the rebellion case because the subversion case had not yet been
terminated. (See Silvestre v. Military Commission No. 21, L-46366, March 8, 1978, 82 SCRA 10; Jimenez v.
Military Commission No. 34, G.R. No. 54577, January 15, 1981, 102 SCRA 39)
Petitioners contend that rebellion is an element of the crime of subversion. That contention is not correct
because subversion does not necessarily include rebellion. Subversion, like treason, is a crime against
national security. Rebellion is a crime against public order.

Republic Act No. 1700 (quoted in full in People v. Ferrer, L-32613-14, December 27, 1972, 48 SCRA 382),
which took effect on June 20, 1957 and which outlaws the Communist Party and similar associations
because their existence and activities constitute a clear, present and grave danger to national security,
punishes the following acts:
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1. By arresto mayor, anyone who knowingly, wilfully and by overt acts affiliates himself with, becomes or
remains a member of the Communist Party or its successor or any subversive association as defined in the
law. Prision correccional shall be imposed for a second conviction. Prision mayor shall be imposed for
subsequent convictions.
2. By prision mayor to death, being an officer or a ranking leader of the Communist Party or of any
subversive association as defined in the law.
3. By prision mayor to death, any member of the Communist Party or similar subversive association who
takes up arms against the government.
4. By prision correccional to prision mayor, one who conspires with any other person to overthrow the
Government of the Republic of the Philippines or the government of any of its political subdivisions by force,
violence, deceit, subversion or other illegal means for the purpose of placing such Government or political
subdivision under the control and domination of any alien power.
5. By prision correccional, any person who knowingly furnishes false evidence in any action brought under
the Anti-Subversion Law.
As already noted, Republic Act No. 1700 was superseded by Presidential Decree No. 885 which reads as
follows:
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PRESIDENTIAL DECREE NO. 885

OUTLAWING SUBVERSIVE ORGANIZATIONS, PENALIZING MEMBERSHIP THEREIN AND FOR OTHER
PURPOSES.
Whereas, there are certain associations or organizations in the Republic of the Philippines, not covered by
Republic Act No. 1700, which are seeking to overthrow the Government of the Republic of the Philippines or
to dismember a portion thereof; and
Whereas, in order to protect the Government of the Republic of the Philippines and the people, it has
become necessary to revise Republic Act No. 1700 to broaden its coverage;
Now, therefore, I, Ferdinand E. Marcos, President of the Philippines by virtue of the powers in me vested by
the Constitution, do hereby decree as follows:
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Section 1. Short Title This decree shall be known as the Revised Anti-Subversion Law.
Sec. 2. Subversive Associations and Organizations Any association, organization, political party, or group
of persons organized for the purpose of overthrowing the Government of the Republic of the Philippines or
for the purpose of removing from the allegiance to said Government or its laws, the territory of the
Philippines or any part thereof, with the open or covert assistance or support of a foreign power or the open
or covert support from a foreign source of any association, group or person, whether public or private, by
force, violence, terrorism, arson, assassination, deceit or other illegal means shall be considered and is
hereby declared a subversive organization. (As amended by Batas Pambansa Blg. 31, effective on June 6,
1979 and P.D. No. 1736, Sept. 12, 1980.)
Sec. 3. Penalties (a) Members. Whoever knowingly, wilfully and by overt act affiliates with, becomes or
remains a member of a subversive association or organization as defined in Section 2 hereof shall be
punished by arresto mayor and shall be disqualified permanently from holding any public office, appointive
or elective, and from exercising the right to vote; in case of a second conviction, the principal penalty shall
be prision correccional; and in all subsequent convictions the penalty of prision mayor shall be imposed.
The following acts shall constitute prima facie evidence of membership in any subversive association:

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(1) Allowing himself to be listed as a member in any book or any of the lists, records, correspondence, or
any other document of the organization;
(2) Subjecting himself to the discipline of such association or organization in any form whatsoever;
(3) Giving financial contribution to such association or organization in dues, assessments, loans, or in any
other forms;
(4) Executing orders, plans or directives of any kind of such association or organization;
(5) Acting as an agent, courier, messenger, correspondent, organizer, or in any other capacity, on behalf of
such association or organization;
(6) Conferring with officers or other members of such association or organization in furtherance of any plan
or enterprise thereof;
(7) Transmitting orders, directives, or plans of such association or organization orally or in writing or any
means of communication such as by signal, semaphore, sign or code;
(8) Preparing documents, pamphlets, leaflets, books, or any other type of publication to promote the
objectives and purposes of such association or organization;
(9) Mailing, shipping, circulating, distributing, or delivering to other persons any material or propaganda of
any kind on behalf of such association or organization;
(10) Advising, counselling, or in other way giving instruction, information, suggestions, or recommendations
to officers or members or to any other person to further the objectives of such association or organization;
(11) Participating in any way in the activities, planning action, objectives, or purposes of such association or
organization.
(b) Officers or Ranking Leaders. If such member is an officer or a ranking leader of any subversive
association or organization as defined in Section 2 hereof, or if such member takes up arms against the
Government, he shall be punished by prision mayor to death with all the accessory penalties provided
therefor in the Revised Penal Code.
(c) Deportation Any alien convicted under this decree shall be deported immediately after he shall have
served the sentence imposed upon him.
Sec. 4. False Testimony. Any person who knowingly furnishes false evidence in any action brought under
this decree shall be punished by prision correccional.
Sec. 5. Sufficiency of Evidence. Except as provided in Section 7 hereof, the two-witness rule heretofore
provided in Republic Act Numbered Seventeen hundred is hereby abrogated and the accused may be
convicted on the testimony of one witness if sufficient under the rules of evidence, or on his confession given
in open court.
Sec. 6. No Restriction of Thought. Nothing in this decree shall be interpreted as a restriction on freedom
of thought, of assembly and of association for purposes not contrary to law as guaranteed by the
Constitution.
Sec. 7. Repealing Clause. This decree supersedes Republic Act Numbered Seventeen Hundred, but acts
committed in violation thereof and before the effectivity of this decree, shall be prosecuted and punished in
accordance with the provisions of the former Act. Nothing in this decree shall prevent prosecution of cases
pending for violation of Republic Act Numbered Seventeen Hundred.
Sec. 8. Sequestration of Property. The sequestration of the property of any person, natural or artificial,
engaged in subversive activities against the Government and its duly constituted authorities, is hereby
authorized, in accordance with implementing rules and regulations as may be issued by the Secretary of
National Defense.
As used herein, the terms "sequester" and "sequestration" shall mean a seizure of private property or assets

in the hands of any person or entity in order to prevent the utilization, transfer or conveyance of the same
for purposes inimical to national security, or when necessary to protect the interest of the Government or
any of its instrumentalities. It shall include the taking over and assumption of the management, control and
operation of the private property or assets seized.
Sec. 9. Effectivity. This decree shall take effect thirty days after its publication in the Official Gazette.
Done in the City of Manila, this 3rd day of February, in the year of Our Lord, nineteen hundred and seventysix.
Presidential Decree No. 885 is incorporated in Section 14 of the National Security Code.
On the other hand, rebellion or insurrection is committed by rising publicly and taking arms against the
Government for the purpose of removing from the allegiance to said Government or its laws, Philippine
territory or any part thereof, or any body of land, naval or other armed forces, or of depriving the Chief
Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.
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Rebellion is distinct from participation or membership in an organization committed to overthrow the duly
constituted government (People v. Hernandez, 120 Phil. 191, 220)
The petitioners were accused of rebellion for having allegedly undertaken a public uprising to overthrow the
government. In contrast, they were accused of subversion for being allegedly officers and ranking members
of the Communist Party and similar subversive groups. The alleged overt acts of resisting the armed forces
were only incidental to the main charge of being leaders of subversive or revolutionary organizations
collaborating with an alien power to make the country a satelite thereof, like Cuba, North Korea and North
Vietnam in relation to Soviet Russia.
The issue on double jeopardy raised by the petitioners was resolved by this Court in People v. Liwanag alias
Linda Bie, L-27683, October 19, 1976, 73 SCR 473. In that case, Silvestre Liwanag was charged in 1960
with subversion for being an officer and ranking member of the CPP and HMB.
He filed a motion to quash the information on the ground of double jeopardy because he had already been
convicted of rebellion based on the same overt acts allegedly constituting the crime of subversion. The trial
court denied the motion. After trial, he was convicted and sentenced to reclusion perpetua. He appealed to
this Court where he again raised the issue that the charge of subversion placed him in double jeopardy.
It was held that there was no double jeopardy because Liwanag was convicted of rebellion for acts
committed before the Anti-Subversion Law took effect while the subversion charge referred to his act of
having remained an officer and ranking leader of the CPP and HMB from the time the Anti-Subversion Law
took effect on June 20, 1957 up to his capture in 1960. Moreover, the crime of subversion is distinct from
rebellion.
In the instant case, the rebellion charge against the petitioners embraced the acts committed by them on or
about February 4, 1972 and during the period from August, 1973 to February, 1974. The subversion charge
against Buscayno involved his acts committed in 1965, 1967, 1969, 1970 and 1971. The subversion charge
against the Sison spouses referred to their acts committed in 1968 and for sometime prior and subsequent
thereto. The common denominator of the rebellion and subversion charges is that the petitioners committed
overt acts as alleged communists or leftists. The overt acts in the two charges are different.
Rebellion is an offense that has existed in the Penal Code for a long time. It may be committed by
noncommunists without collaborating with the agents of an alien power. In contrast, the crime of subversion
came into existence when the communists sought to dominate the world in order to establish a new social,
economic and political order.
The constitutionality of the Anti-Subversion Law was upheld in People v. Ferrer, L-32613-14, December 27,
1972, 48 SCRA 382 and 56 SCRA 793. Long before the passage of the Anti-Subversion Law membership in
illegal associations has been penalized (Art. 146, Revised Penal Code)
A statute which punishes membership in a party or association that advocates the overthrow or destruction
of the government by force or violence is justified on the ground of self-preservation (Dennis v. U.S. 341,
U.S., 494, 509; Scales v. U.S., 367 U.S. 203)

The unavoidable conclusion is that in the present posture of the pending cases against the petitioners their
plea of double jeopardy cannot be sustained.
WHEREFORE, the petition is dismissed. The restraining order is lifted. No costs.
SO ORDERED.
Barredo, Fernandez, Guerrero and De Castro, JJ., concur.
Makasiar, J., concurs in the result.
Concepcion Jr., J., took no part.
Separate Opinions
MELENCIO-HERRERA, J., concurring:

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I concur, except as to the statement that "ordinarily, this Court cannot review the rulings and proceedings of
the military commission" (p. 11) in respect of which, I reserve my vote.
Abad Santos, J., concurs.
FERNANDO, C.J., concurring and dissenting:

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With regret and with due recognition that with the approach taken the conclusion reached by the Court
expressed with his usual clarity in the able ponencia of Justice Aquino was inevitable, I find myself unable to
agree with my brethren on the question of the scope of our power of review over military tribunals,
especially so where the accused are civilians. Moreover, while it is not inaccurate to state that the
suspension of the privilege of the writ of habeas corpus carries with it the suspension of the right to bail, 1 I
am for a re-examination of such a doctrine. Moreover, even if I did not succeed, it is my submission that
there may be a question of unconstitutional application of such a principle if, notwithstanding the advanced
stage of pregnancy of Mrs. Juliet Sison, she is not released on bail.
I am led to concur in the result primarily on the concept of the law of the case, the present petitioners
having failed in their previous petitions to transfer their cases to civilian tribunals. 2 I likewise concur with
my brethren on the lack of merit in the petition insofar as it contended that there was double jeopardy. Also,
while being the lone dissenter in People v. Ferrer, 3 where the validity of the Anti-Subversion Act was
challenged, I must perforce yield to the prevailing doctrine that it is not unconstitutional.
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Hence, this separate concurring and dissenting opinion.

1. On the question of the power of this Court to review actuations of military tribunals, I adhere to our
decision in Go v. Gen. Olivas. 4 That petition for habeas corpus was dismissed on basic principle that no
jurisdictional question was raised by the person detained. Nonetheless, this Court made clear what are the
guiding principles to determine its jurisdiction whenever the actuation of a military tribunal is challenged
before it. Thus: "1. This Court in Aquino v. Military Commission No. 2 ruled that there is no constitutional
objection to military tribunals conducting trials of civilians for certain specified offenses, among which is
kidnapping. That does not preclude the judiciary, of course, from granting in appropriate cases applications
for the return of habeas corpus. There is, however, this limitation. The jurisdictional question must be
squarely raised. That is a doctrine implicit in the In re Carr 1902 decision, the opinion being penned by
Justice Willard. The leading case of Payomo v. Floyd, a 1922 decision, made it explicit. As set forth by its
ponente, Justice Street: `The next point to be observed upon it that, where the detained person is held in
restraint by virtue of a judgment rendered by a military or naval court, tribunal, or officer, no court
entertaining an application for the writ of habeas corpus has authority to review the proceedings of that
tribunal, court, or officer in the sense of determining whether the judgment was erroneous. The only
question to be considered is whether the court, tribunal, or officer rendering the judgment had jurisdiction to
entertain the case and render judgment at all. As was said by the Supreme Court of the United States in a
case where the writ of habeas corpus had been sued out to liberate a person detained by virtue of the
sentence of a court-martial, the civil courts exercise no supervisory or correcting power by the writ
of habeas corpus over the proceedings of a court-martial and no mere errors in their proceedings are open
to consideration. "The single inquiry, the test, is jurisdiction. That being established, the habeas corpusmust

be denied and the petitioner remanded. That wanting, it must be sustained and the petitioner discharged.." .
. As otherwise stated the rule is that the proceedings of a military or naval court cannot be reviewed
upon habeas corpus when it appears that such tribunal had jurisdiction over the offense charged and that
the offender was a person amenable to its authority. The first Supreme Court decision after the Liberation in
1945, Cabiling v. Prison Officer, reiterated such a doctrine. As set forth in the opinion of Chief Justice Moran:
It is alleged in the petition for habeas corpus filed in his behalf that he is illegally detained, the General
Court-Martial having no jurisdiction to try and convict him for the crime charged . . . [The only] question to
be determined is whether or not the General Court-Martial was vested with jurisdiction to try and convict the
petitioner for any crime of murder. There seems to be no doubt that it had such jurisdiction. According to
Article of War 12 "General Courts-Martial shall have power to try any person subject to military law for any
crime or offense made punishable by these articles, . . ." The petitioner, being a staff sergeant of the
Philippine Scouts, United States Army, is a person subject to military law, under Article of War 2, and in time
of war, the crime of murder committed by a person subject to military law, comes within the jurisdiction of a
court-martial, in accordance with Article of War 92. 2. What minimizes the difficulty facing a detained
person, triable by a military tribunal, is this categorical pronouncement by Justice Antonio, speaking for the
Court, in the aforesaid Aquino v. Military Commission decision: It is important to note here that an accused
being tried before a military tribunal enjoys the specific constitutional safeguards pertaining to criminal
trials. Thus, he is entitled to be heard by himself and counsel, to be informed of the nature and cause of the
accusation, to meet the witnesses face to face, to have compulsory process to secure the attendance of
witnesses and the production of evidence in his behalf, and to be exempt from being a witness against
himself. As in trial before civil courts, the presumption of innocence can only be overcome by evidence
beyond reasonable doubt of the guilt of the accused. These tribunals, in general, are "bound to observe the
fundamental rules of law and principles of justice observed and expounded by the civil judicature.." . . There
is, therefore, no justification for petitioners contention that such military tribunals are concerned primarily
with the conviction of an accused and that proceedings therein involve the complete destruction and
abolition of petitioners constitutional rights. Such being the case, the well-settled doctrine announced as
early as 1924 by Justice Malcolm in Conde v. Rivera and subsequently reiterated, the latest case being
Gumabon v. Director of Prisons that came out in 1971, to the effect that a denial of a constitutional right
may oust the Court of jurisdiction, finds pertinence. In this petition, however, counsel failed to invoke such a
principle, relying instead on Jovito Go not falling within Proclamation No. 1081. There is plausibility to the
argument that under the ruling in Aquino v. Ponce Enrile, the offense for which Go was indicted is not
included in the crime of insurrection or rebellion which supplied the basis for preventive detention under
martial law proclamation. That is not decisive of the controversy before us in view of the fact, as mentioned
above, that a military tribunal is vested with jurisdiction where the prosecution is one for kidnapping." 5
2. I am for the reexamination of the doctrine that the suspension of the privilege of habeas corpuscarries
with it the suspension of the right to bail. That was my view as one of the counsel in Hernandez v. Montesa,
6 heard and thereafter decided in one opinion with Nava v. Gatmaitan. As set forth in the dissenting opinion
of Justice Teehankee, the majority was of that view but unfortunately there was one vote short of the
necessary six affirmative votes at that time. It is quite understandable if I find nothing objectionable in his
opinion when he cited extensively from Taada and Fernando on the Constitution of the Philippines
Annotated. 7
3. A few additional observations. The petition made mention of the efforts of counsel to have the President
transfer the cases to the civil courts. The success of such endeavor would be for me a cause for gratification.
It would mean that the lifting of martial law would likewise put an end to the jurisdiction of military tribunals
over civilians, necessitated by the past period of emergency. At any rate, to the extent that the evidence
before respondent Military Commission found in the records was offered with due regard to the
constitutional rights of an accused, it could still be relied upon by the court to which the cases may be
transferred. In the event that such efforts would not be attended to with success, it would be desirable, to
my way of thinking, if there be only one military commission to continue with the trial of petitioners. There is
this last point. The opinion of the United States Supreme Court in Dennis v. United States 8 and Scales v.
United States 9 were cited in the ponencia. The later case, as made clear in the opinion of Justice Harlan,
while upholding the applicability of the Smith Act likewise emphasized that such statute requires proof of a
specific intent to bring about the violent overthrow of the government and proof of "active" as distinguished
from mere "nominal" or "passive," membership. Nonetheless, the more liberal view which for me expresses
the current state of American constitutional law is that set forth in Brandenburg v. Ohio 10 decided in 1969
at the end of the last term of the Warren Court. To cite from the opinion of the United States Supreme
Court: "These later decisions have fashioned the principle that the constitutional guarantees of free speech
and free press do not permit a State to forbid or prescribe advocacy of the use of force or of law violation
except where such advocacy is directed to inciting or producing imminent lawless action and is likely to
incite or produce such action." 11

TEEHANKEE, J., dissenting:

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The principal questions presented in the case at bar assert (1) the constitutional right of civilians like
petitioners to the judicial process of civilian trials by the regular civil courts composed of judges trained in
the law whose objectivity and independence are protected by tenure and undiminished salary and are
nurtured by the judicial tradition as against the executive process of trial by military tribunals composed of
military officers, specially so with the lifting of martial law on January 17, 1981 through the Presidents
Proclamation No. 2045, and (2) petitioners constitutional right to bail unless it could be shown that evidence
of guilt for the capital offense of subversion for which they are charged were strong.
I dissent from the majority decisions dismissal of the petition and denial of these constitutional rights
invoked by them.
I. On the first question of the right of civilians to trial by judicial process I dissent on the grounds stated in
my separate opinions in Aquino v. Military Commission No. 2 1 and in the latest cases this year of Buscayno
v. Enrile 2 , Sison v. Enrile 3 and Luneta v. Special Military Commission No. 1 4
These cases were all decided before the Presidents issuance of Proclamation No. 2045 on January 17, 1981
revoking his previous proclamations of martial law (Nos. 1081 and 1104) as well as General Order No. 8,
and directing that "the military tribunals created pursuant thereto are hereby dissolved upon final
determination of cases pending therein which may not be transferred to the civil courts without irreparable
prejudice to the state in view of the rules on double jeopardy, or other circumstances which render further
prosecution of the cases difficult, if not impossible.
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In Sison particularly, the Court dismissing the petition, unanimously noted that" (T)he President of the
Philippines has announced that the military tribunals are being phased out. It is reported that the Ministry of
Justice is now taking steps to transfer cases pending before the military tribunals to the civil courts. Hence,
the issues raised by the petitioners have become moot and academic."
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With the official lifting of martial law under Proclamation No. 2045 and the revocation thereunder of General
Order No. 8 creating military tribunals, and pursuant to the Courts abovequoted pronouncement in Sison on
the phaseout of military tribunals, there is no longer any justification for continuing to subject petitionerscivilians to trial by military commissions in derogation of the judicial power vested exclusively in the civil
courts.
As stressed in my separate opinion in Aquino, civilians like petitioners placed on trial for offenses under
general law are entitled to trial by judicial process, not by executive or military process. Judicial power is
vested by the Constitution exclusively in the Supreme Court and in such inferior courts as are duly
established by law. Military commissions or tribunals are not courts and do not form part of the judicial
system. Since we are not enemy-occupied territory nor are we under a military government, the military
tribunals cannot try and exercise jurisdiction over civilians for civil offenses committed by them which are
properly cognizable by the civil courts that have remained open and have been regularly functioning.
As was held in a leading U.S. Supreme Court case 5 , "the assertion of military authority over civilians
[discharged servicemen] cannot rest on the Presidents power as Commander-in-Chief or on any theory of
martial law." The late Justice Hugo Black speaking for that Court aptly pointed out that "the presiding officer
at a court martial (or military commission) is not a judge whose objectivity and independence are protected
by tenure and undiminished salary and nurtured by the judicial tradition, but is a military law officer.
Substantially different rules of evidence and procedure apply in military trials. Apart from these differences,
the suggestion of the possibility of influence on the actions of the court-martial by the officer who convenes
it, select its members and the counsel on both sides, and who usually has direct command authority over its
members is a pervasive one in military law, despite strenuous efforts to eliminate the danger," and" (A)
Court-Martial is not yet an independent instrument of justice but remains to a significant degree a
specialized part of the over-all mechanism by which military discipline is preserved," and ex-servicemen
should be given "the benefits of a civilian court trial when they are actually civilians . . . Free countries of the
world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to
maintaining discipline among troops in active service."
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Finally, it should be noted that there has been no showing by respondents that the cases against petitioners
fall within the only exception provided in Proclamation No. 2045 6 wherein the military tribunals which are
therein dissolved may make a "final determination," to wit, "cases pending therein which may not be

transferred to the civil courts without irreparable prejudice to the State in view of rules on double jeopardy,
or other circumstances which render further prosecution of the cases difficult, if not impossible." Certainly,
neither the respondents nor the State claim, much less have shown, that the transfer of petitioners cases to
the civil courts would result in "irreparable prejudice" to the State because of double jeopardy or that such
transfer to the civil courts would render further prosecution "difficult, if not impossible" in the face of
petitioners assertion and insistence that the military tribunals have no jurisdiction over them as civilians.
II. On the second question on the right of petitioners to bail, absent a showing of strong evidence of guilt of
the capital offense of subversion, notwithstanding the saving clause in Proclamation No. 2045 maintaining
the suspension of the privilege of the writ of habeas corpus as to them as persons detained for rebellion and
subversion, I reiterate my adherence to the majority holding in the leading 1951 cases of Nava v. Gatmaitan
and Hernandez v. Montesa 7 (although it failed one vote short of the required majority of six affirmative
votes at the time) as expounded by then Chief Justice Ricardo Paras and Associate Justice (later Chief
Justice) Cesar Bengzon and Associate Justice Pedro Tuason, Alex Reyes and Fernando Jugo that after formal
indictment in court by the filing against them of an information charging rebellion with multiple murder,
etc., Accused persons covered by the proclamation of suspension of the privilege of the writ of habeas
corpus are entitled to the right to bail. As stressed by then Chief Justice Paras," (T)he right to bail, along
with the right of an accused to be heard by himself and counsel, to be informed of the nature and cause of
the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to
have compulsory process to secure the attendance of witnesses in his behalf (Article III, Section 1,
Paragraph 17, of the Constitution), tends to aid the accused to prove his innocence and obtain acquittal. If it
be contended that the suspension of the privilege of the writ of habeas corpus includes the suspension of the
distinct right to bail or to be provisionally at liberty, it would a fortiori imply the suspension of all his other
rights (even the rights to be tried by a court) that may win for him ultimate acquittal and, hence, absolute
freedom. The latter result is not insisted upon for being patently untenable."
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I cannot improve on the presentation of the rationale of the failed majority in the cited right to bail cases as
made in the oft-cited work of Taada and Fernando, and herewith reproduce the same:
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"In Nava v. Gatmaitan and Hernandez v. Montesa, the question presented before the Supreme Court was the
effect on the right to bail of the suspension of the writ of habeas corpus. For lack of one vital vote, to make
a majority of six as required by the Judiciary Act, the Supreme Court missed an opportunity to speak in
unmistakable language that constitutional rights mean what they say and that the Constitution is supreme,
emergency to the contrary notwithstanding. Respondent judges in the above two petitions ruled that the
petitioners were included among those coming within the terms of the suspension of the privilege of the writ
of habeas corpus and were for that reason not entitled to their constitutional right to bail. Upon the matter
being taken before the Supreme Court, five of the nine Justices who voted on the question were of the
opinion that petitioners under the Constitution have the right to bail unless it could be shown that evidence
of guilt for the capital offense of which they were charged were strong. In thus arriving at that conclusion,
the above five justices merely applied literally the terms of the controlling constitutional provision.
"As Chief Justice Paras expressed it:

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. . . The privilege of the writ of habeas corpus and the right to bail guaranteed under the Bill of Rights are
separate and co-equal. If the intention of the framers of the Constitution was that the suspension of the
privilege of the writ of habeas corpus carries or implies the suspension of the right to bail, they would have
very easily provided that all persons shall before conviction be bailable by sufficient sureties, except those
charged with capital offenses when evidence of guilt is strong and except when the privilege of the writ
of habeas corpus is suspended. As stated in the case of Ex Parte Milligan, 4 Wall. 2, 18 L. ed. 297, the
Constitution limited the suspension to only one great right, leaving the rest to remain forever inviolable.
"Justice Tuason had no doubts on the matter either:

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To the plea that the security of the State would be jeopardized by the release of the defendants on bail, the
answer is that the existence of danger is never a justification for courts to tamper with the fundamental
rights expressly granted by the Constitution. These rights are immutable, inflexible, yielding to no pressure
or convenience, expediency or the so-called judicial statesmanship. The Legislature itself cannot infringe
them, and no court conscious of its responsibilities and limitations would do so. If the Bill of Rights are
incompatible with stable government and a menace to the Nation, let the Constitution be amended, or
abolished. It is trite to say that, while the Constitution stands, the courts of justice as the repository of civil
liberty are bound to protect and maintain undiluted individual rights.

"From Justice Bengzon, . . .

there is no cogent and forceful presentation of the argument that respect for constitutional rights would aid
in the fight against Communism in the Philippines.
And in my opinion, one of the surest means to ease the uprising is a sincere demonstration of this
Governments adherence to the principles of the Constitution together with an impartial application thereof
to all citizens, whether dissidents or not. Let the rebels have no reason to apprehend that their comrades
now under custody are being railroaded into Muntinglupa, without benefit of those fundamental privileges
which the experience of the ages has deemed essential for the protection of all persons accused of crime
before the tribunal of justice. Give them the assurance that the judiciary, ever mindful of its sacred mission,
will not, thru faulty or misplaced devotion, uphold any doubtful claims of Governmental power in diminution
of individual rights, but will always cling to the principles uttered long ago by Chief Justice Marshall that
when in doubt as to the construction of the Constitution, the Courts will favor personal liberty. (Ex parte
Burford, 3 Cranch, & U.S., Law Ed. Book 2, at p. 495)." 8
III. A final word on the statements in the main opinion 9 that would deny to this Supreme Court the right to
"review the rulings and proceedings of the military commission" or at best limit such review "to decisions of
the Court of Military Appeals 10 in cases appealed to it from the military commission." It must first be noted
that these statements do not carry the affirmance of a majority of the Court that would unsettle or
overthrow this Courts consistent exercise of its judicial power and jurisdiction through the prerogative writs
of certiorari and prohibition or habeas corpus over cases, including military commissions (in whatever stage
of the proceedings), where a violation or denial of constitutional rights is asserted by the aggrieved party,
although not always with successful results. In this very case, the Court did again exercise, with the required
concurrence of at least eight (8) members, its jurisdiction over proceedings in the military commissions per
its Resolution of October 22, 1981 through the issuance of a temporary restraining order enjoining
respondent military commissions "from proceeding with the trial of petitioners . . . until otherwise ordered
by the Court."
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[G.R. No. L-52245. January 22, 1980.]

PATRICIO DUMLAO, ROMEO B. IGOT, and ALFREDO SALAPANTAN, JR., Petitioners, v.
COMMISSION ON ELECTIONS, Respondent.
Raul M . Gonzales, for Petitioners.
Office of the Solicitor General for Respondent.
DECISION
MELENCIO-HERRERA, J.:

This is a Petition for Prohibition with Preliminary Injunction and/or Restraining Order filed by petitioners, in
their own behalf and all others allegedly similarly situated, seeking to enjoin respondent Commission on
Elections (COMELEC) from implementing certain provisions of Batas Pambansa Blg. 51, 52, and 53 for being
unconstitutional.
The Petition alleges that petitioner, Patricio Dumlao, is a former Governor of Nueva Vizcaya, who has filed his
certificate of candidacy for said position of Governor in the forthcoming elections of January 30, 1980.
Petitioner, Romeo B. Igot, is a taxpayer, a qualified voter and a member of the Bar who, as such, has taken
his oath to support the Constitution and obey the laws of the land. Petitioner, Alfredo Salapantan, Jr., is also
a taxpayer, a qualified voter, and a resident of San Miguel, Iloilo.
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Petitioner Dumlao specifically questions the constitutionality of section 4 of Batas Pambansa Blg. 52 as
discriminatory and contrary to the equal protection and due process guarantees of the Constitution. Said
Section 4 provides:
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"Sec. 4. Special Disqualification. In addition to violation of section 10 of Art. XII-C of the Constitution and
disqualification mentioned in existing laws, which are hereby declared as disqualification for any of the
elective officials enumerated in section 1 hereof.
Any retired elective provincial, city of municipal official who has received payment of the retirement benefits
to which he is entitled under the law and who shall have been 65 years of age at the commencement of the
term of office to which he seeks to be elected, shall not be qualified to run for the same elective local office
from which he has retired." (Paragraphing and Emphasis supplied)
Petitioner Dumlao alleges that the aforecited provision is directed insidiously against him, and that the
classification provided therein is based on "purely arbitrary grounds and, therefore, class legislation."

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For their part, petitioners Igot and Salapantan, Jr. assail the validity of the following statutory provisions:

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"Sec. 7. Term of office. Unless sooner removed for cause, all local elective officials hereinabove mentioned
shall hold office for a term of six (6) years. which shall commence on the first Monday of March 1980."
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. . ." Batas Pambansa Blg. 51

"Sec. 4. . . .
"Any person who has committed any act of disloyalty to the State, including acts amounting to subversion,
insurrection, rebellion or other similar crimes, shall not be qualified to be a candidate for any of the offices
covered by this Act, or to participate in any partisan political activity therein:
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provided, that a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of
such fact and.
the filing of charges for the commission of such crimes before a civil court or military tribunal after
preliminary investigation shall be prima facie evidence of such fact.
". . . (Batas Pambansa Blg. 52) (Paragraphing and Emphasis supplied).
"Section 1. Election of certain Local Officials. . . . The election shall be held on January 30, 1980." (Batas
Pambansa, Blg. 52).
"Section 6. Election and Campaign Period. The election period shall be fixed by the Commission on
Elections in accordance with Section 6, Art. XII-C of the Constitution. The period of campaign shall
commence on December 29, 1979 and terminate on January 28, 1980." (ibid.)
In addition to the above-cited provisions, petitioners Igot and Salapantan, Jr. also question the accreditation
of some political parties by respondent COMELEC, as authorized by Batas Pambansa Blg. 53, on the ground
that it is contrary to section 9(1), Art. XII(C) of the Constitution, which provides that a "bona fide candidate
for any public office shall be free from any form of harassment and discrimination."
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The question of accreditation will not be taken up in this case but in that of Bacalso, et als., v. COMELEC et
als. (G.R. No. L-52232) where the issue has been squarely raised.
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Petitioners then pray that the statutory provisions they have challenged be declared null and void for being
violative of the Constitution.
I. The procedural aspect.
At the outset, it should be stated that this Petition suffers from basic procedural infirmities, hence,
traditionally unacceptable for judicial resolution. For one, there is a misjoinder of parties and actions.
Petitioner Dumlaos interest is alien to that of petitioners Igot and Salapantan. Petitioner Dumlao does not
join petitioners Igot and Salapantan in the burden of their complaint, nor do the latter join Dumlao in his.
They, respectively, contest completely different statutory provisions. Petitioner Dumlao has joined this suit in
his individual capacity as a candidate. The action of petitioners Igot and Salapantan is more in the nature of
a taxpayers suit. Although petitioners plead time constraints as the reason of their joint Petition, it would
have required only a modicum more of effort for petitioner Dumlao, on one hand, and petitioners Igot and
Salapantan, on the other, to have filed separate suits, in the interest of orderly procedure.
For another, there are standards that have to be followed in the exercise of the function of judicial review,
namely: (1) the existence of an appropriate case; (2) an interest personal and substantial by the party
raising the constitutional question; (3) the plea that the function be exercised at the earliest opportunity;
and (4) the necessity that the constitutional question be passed upon in order to decide the case (People v.
Vera, 65 Phil. 56 [1937]).
It may be conceded that the third requisite has been complied with, which is, that the parties have raised
the issue of constitutionality early enough in their pleadings.
This Petition, however, has fallen far short of the other three criteria.
A. Actual case and controversy.
It is basic that the power of judicial review is limited to the determination of actual cases and controversies.
Petitioner Dumlao assails the constitutionality of the first paragraph of section 4 of Batas Pambansa Blg. 52,
quoted earlier, as being contrary to the equal protection clause guaranteed by the Constitution, and seeks to
prohibit respondent COMELEC from implementing said provision. Yet, Dumlao has not been adversely
affected by the application of that provision. No petition seeking Dumlaos disqualification has been filed
before the COMELEC. There is no ruling of that constitutional body on the matter, which this Court is being
asked to review on Certiorari. His is a question posed in the abstract, a hypothetical issue, and in effect, a
petition for an advisory opinion from this Court to be "rendered without the benefit of a detailed factual
record." Petitioner Dumlaos case is clearly within the primary jurisdiction (see concurring Opinion of now
Chief Justice Fernando in Peralta v. Comelec, 82 SCRA 30, 96 [1978]) of respondent COMELEC as provided
for in section 2, Art. XII-C, for the Constitution the pertinent portion of which reads:
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"Section 2. The Commission on Elections shall have the following power and functions.
1) . . .
2) Be the sole judge of all contests relating to the elections, returns and qualifications of all members of the
National Assembly and elective provincial and city officials." (Emphasis supplied)
The aforequoted provision must also be related to section 11 of Art. XII-C, which provides:

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"Section 11. Any decision, order, or ruling of the Commission may be brought to the Supreme Court
on certiorari by the aggrieved party within thirty days from his receipt of a copy thereof."
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B. Proper party.
The long-standing rule has been that "the person who impugns the validity of a statute must have a
personal and substantial interest in the case such that he has sustained, or will sustain, direct injury as a
result of its enforcement" (People v. Vera, supra).
In the case of petitioners Igot and Salapantan, it was only during the hearing, not in their Petition, that Igot
is said to be a candidate for Councilor. Even then, it cannot be denied that neither one has been convicted

nor charged with acts of disloyalty to the State, nor disqualified from being candidates for local elective
positions. Neither one of them has been alleged to have been adversely affected by the operation of the
statutory provisions they assail as unconstitutional. Theirs is a generalized grievance. They have no personal
nor substantial interest at stake. In the absence of any litigate interest, they can claim no locus standi in
seeking judicial redress.
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It is true that petitioners Igot and Salapantan have instituted this case as a taxpayers suit, and that the rule
enunciated in People v. Vera, above stated, has been relaxed in Pascual v. The Secretary of Public Works
(110 Phil. 331 [1960], thus:
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". . . it is well settled that the validity of a statute may be contested only by one who will sustain a direct
injury in consequence of its enforcement. Yet, there are many decisions nullifying, at the instance of
taxpayers, taws providing for the disbursement of public funds, upon the theory that the expenditure of
public funds, by an officer of the State for the purpose of administering an unconstitutional act constitutes a
misapplication of such funds, which may be enjoined at the request of a taxpayer."
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In the same vein, it has been held:

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"In the determination of the degree of interest essential to give the requisite standing to attack the
constitutionality of a statute, the general rule is that not only persons individually affected, but also
taxpayers have sufficient interest in preventing the illegal expenditure of moneys raised by taxation and
they may, therefore, question the constitutionality of statutes requiring expenditure of public moneys."
(Philippine Constitution Association, Inc., et als., v. Gimenez, et als. 15 SCRA 479 [1965]).
However, the statutory provisions questioned in this case, namely, sec. 7, BP Blg. 51, and sections 4, 1, and
6 BP Blg. 52, do not directly involve the disbursement of public funds. While, concededly, the elections to be
held involve the expenditure of public moneys, nowhere in their Petition do said petitioners allege that their
tax money is "being extracted and spent in violation of specific constitutional protections against abuses of
legislative power" (Flast v. Cohen, 392 U.S., 83 [1960]), or that there is a misapplication of such funds by
respondent COMELEC (see Pascual v. Secretary of Public Works, 110 Phil. 331 [1960]), or that public money
is being deflected to any improper purpose. Neither do petitioners seek to restrain respondent from wasting
public funds through the enforcement of an invalid or unconstitutional law. (Philippine Constitution
Association v. Mathay, 18 SCRA 300 [1966]), citing Philippine Constitution Association v. Gimenez, 15 SCRA
479 [1965]). Besides, the institution of a taxpayers suit, per se, is no assurance of judicial review. As held
by this Court in Tan v. Macapagal (43 SCRA 677 [1972]), speaking through our present Chief Justice, this
Court is vested with discretion as to whether or not a taxpayers suit should be entertained.
C. Unavoidability of constitutional question.
Again upon the authority of People v. Vera, "it is a well-settled ruled that the constitutionality of an act of the
legislature will not be determined by the courts unless that question is properly raised an presented in
appropriate cases and is necessary to a determination of the case; i.e., the issue of constitutionality must be
the very lis mota presented."
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We have already stated that, by the standards set forth in People v. Vera, the present is not an "appropriate
case" for either petitioner Dumlao or for petitioners Igot and Salapantan. They are actually without cause of
action. It follows that the necessity for resolving the issue of constitutionality is absent, and procedural
regularity would require that his suit be dismissed.
II. The substantive viewpoint.
We have resolved, however, to rule squarely on two of the challenged provisions, the Courts not being
entirely without discretion in the matter. Thus, adherence to the strict procedural standard was relaxed in
Tinio v. Mina (26 SCRA 512 [1968]); Edu v. Ericta (35 SCRA 481 [1970]); and in Gonzalez v. Comelec (27
SCRA 835 [1969]), the Opinion in the Tinio and Gonzales cases having been penned by our present Chief
Justice. The reasons which have impelled us are the paramount public interest involved and the proximity of
the elections which will be held only a few days hence.
Petitioner Dumlaos contention that section 4 of BP Blg. 52 is discriminatory against him personally is belied
by the fact that several petitions for the disqualification of other candidates for local positions based on the
challenged provision have already been filed with the COMELEC (as listed in p. 15, respondents Comment).
This tellingly overthrows Dumlaos contention of intentional or purposeful discrimination.
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The assertion that Section 4 of BP Blg. 52 is contrary to the safeguard of equal protection is neither well
taken. The constitutional guarantee of equal protection of the laws is subject to rational classification. If the
groupings are based on reasonable and real differentiations, one class can be treated and regulated
differently from another class. For purposes of public service, employees 65 years of age, have been validly
classified differently from younger employees. Employees attaining that age are subject to compulsory
retirement, while those of younger ages are not so compulsorily retirable.
In respect of election to provincial, city, or municipal positions, to require that candidates should not be
more than 65 years of age at the time they assume office, if applicable to everyone, might or might not be a
reasonable classification although, as the Solicitor General has intimated, a good policy of the law should be
to promote the emergence of younger blood in our political elective echelons. On the other hand, it might be
that persons more than 65 years old may also be good elective local officials.
Coming now to the case of retirees. Retirement from government service may or may not be a reasonable
disqualification for elective local officials. For one thing, there can also be retirees from government service
at ages, say below 65. It may neither be reasonable to disqualify retirees, aged 65, for a 65-year old retiree
could be a good local official just like one, aged 65, who is not a retiree.
But, in the case of a 65-year old elective local official, who has retired from a provincial, city or municipal
office, there is reason to disqualify him from running for the same office from which he had retired, as
provided for in the challenged provision. The need for new blood assumes relevance. The tiredness of the
retiree for government work is present, and what is emphatically significant is that the retired employee has
already declared himself tired an unavailable for the same government work, but, which, by virtue of a
change of mind, he would like to assume again. It is for the very reason that inequality will neither result
from the application of the challenged provision. Just as that provision does not deny equal protection,
neither does it permit such denial (see People v. Vera, 65 Phil. 56 [1933]). Persons similarly situated are
similarly treated.
In fine, it bears reiteration that the equal protection clause does not forbid all legal classification. What is
proscribes is a classification which is arbitrary and unreasonable. That constitutional guarantee is not
violated by a reasonable classification is germane to the purpose of the law and applies to all those
belonging to the same class (Peralta v. Comelec, 82 SCRA 30 [1978] citing Felwa v. Salas, 18 SCRA 606
[1966]; Rafael v. Embroidery and Apparel Control and Inspection Board, 21 SCRA 336 [1967]; Inchong,
etc., Et. Al. v. Hernandez, 101 Phil. 1155 [1957]). The purpose of the law is to allow the emergence of
younger blood in local governments. The classification in question being pursuant to that purpose, it cannot
be considered invalid "even if at times, it may be susceptible to the objection that it is marred by theoretical
inconsistencies: (Chief Justice Fernando, The Constitution of the Philippines, 1977 ed., p. 547).
There is an additional consideration. Absent herein is a showing of the clear invalidity of the questioned
provision. Well accepted is the rule that to justify the nullification of a law, there must be a clear and
unequivocal breach of the Constitution, not a doubtful and equivocal breach. Courts are practically
unanimous in the pronouncement that laws shall not be declared invalid unless the conflict with the
Constitution is clear beyond reasonable doubt (Peralta v. COMELEC, 82 SCRA 55 [1978], citing Cooper v.
Telfair, 4 Dall. 14; Dodd, Cases on Constitutional Law, 3rd ed. 1942, 56). Lastly, it is within the competence
of the legislature to prescribe qualifications for one who desires to become a candidate for office provided
they are reasonable, as in this case.
In so far as the petition of Igot and Salapantan are concerned, the second paragraph of section 4 of Batas
Pambansa Blg. 52, quoted in full earlier, and which they challenged, may be divided in two parts. The first
provides:
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"a judgment of conviction for any of the aforementioned crimes shall be conclusive evidence of such
fact. . . ."
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The supremacy of the Constitution stands out as the cardinal principle. We are aware of the presumption of
validity that attached to a challenged statute, of the well-settled principle that "all reasonable doubts should
be resolved in favor of constitutionality," and that Courts will not set aside a statute as constitutionally
defective "except in a clear case." (People v. Vera, supra). We are constrained to hold that this in one such
clear case.
Explicit is the constitutional provision that, in all criminal prosecutions, the accused shall be presumed

innocent until the contrary is proved, and shall enjoy the right to be heard by himself and counsel (Article IV,
section 19, 1973 Constitution). An accusation, according to the fundamental law, is not synonymous with
guilt. The challenged proviso contravenes the constitutional presumption of innocence, as a candidate is
disqualified from running from public office on the ground alone that charges have been filed against him
before a civil or military tribunal. It condemns before one is fully heard. In ultimate effect, except as to the
degree of proof, no distinction is made between a person convicted of acts of disloyalty and one against
whom charges have been filed for such acts, as both of them would be ineligible to run for public office. A
person disqualified to run for public office on the ground that charges have been filed against him is virtually
placed in the same category as a person already convicted of a crime with the penalty of arresto, which
carries with it the accessory penalty of suspension of the right to hold office during the term of the sentence
(Art. 44, Revised Penal Code).
And although the filing of charges is considered as but prima facie evidence, and therefore, may be
rebutted, yet, there is "clear and present danger" that because the proximity of the elections, time
constraints will prevent one charged with acts of disloyalty from offering contrary proof to overcome the
prima facie evidence against him.
Additionally, it is best that evidence pro and con of acts of disloyalty be aired before the Courts rather than
before an administrative body such as the COMELEC. A highly possible conflict of finding between two
government bodies, to the extreme detriment of a person charged, will thereby be avoided. Furthermore, a
legislative/administrative determination of guilt should not be allowed to be substituted for a judicial
determination.
Being infected with constitutional infirmity, a partial declaration of nullity of only that objectionable portion is
mandated. It is separable from the first portion of the second paragraph of section 4 of Batas Pambansa Blg.
52 which can stand by itself.
WHEREFORE, 1) the first paragraph of section 4 of Batas Pambansa Bilang 52 is hereby declared valid. Said
paragraph reads:
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"SEC. 4. Special disqualification. In addition to violation of Section 10 of Article XII(C) of the Constitution
and disqualifications mentioned in existing laws which are hereby declared as disqualifications for any of the
elective officials enumerated in Section 1 hereof, any retired elective provincial, city or municipal official,
who has received payment of the retirement benefits to which he is entitled under the law and who shall
have been 65 years of age at the commencement of the term of office to which he seeks to be elected, shall
not be qualified to run for the same elective local office from which he has retired."
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2) That portion of the second paragraph of section 4 of Batas Pambansa Bilang 52 providing that." . . the
filing of charges for the commission of such crimes before a civil court or military tribunal after preliminary
investigation shall be prima facie evidence of such fact", is hereby declared null and void, for being violative
of the constitutional presumption of innocence guaranteed to an accused.
SO ORDERED.
Makasiar, Antonio, Concepcion Jr., Fernandez and Guerrero, JJ., concur.
De Castro, J., abstain as far as petitioner Dumlao is concerned.
Separate Opinions
BARREDO, J., concurring:

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I concur. But as regards the matter of equal protection, I reiterate my view for Peralta that Sec. 9(1) Art. XII
is more expensive than the equal protection clause.
AQUINO, J., concurring:

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I concur in the result as to paragraph 1 of the dispositive part of the decision. I dissent as to paragraph 2. In
my opinion, paragraph 2, section 4 of Batas Pambansa Bilang 52 is valid, being similar to certain
presumptions in Articles 217 and 315 of the Penal Code, as amended by Republic Act No. 4885. See U.S. v.
Luling, 34 Phil. 725 and People v. Mingoa, 92 Phil. 856.

ABAD SANTOS, J., concurring:

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I concur but wish to add that a judgment of conviction as provided in Sec. 4, par. 2 of Batas Pambansa Blg.
52 should be one which is final and unappealable.
FERNANDO, C.J., concurring:

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It is particularly gratifying that the reiteration in the ably-written and scholarly opinion of the Court, penned
by Justice Melencio-Herrera, of the standard that must be met before the power of judicial review may be
availed of, set forth with such lucidity and force by Justice Laurel in the two leading cases of Angara v.
Electoral Commission 1 and People v. Vera, 2 did not constitute an obstacle to this Court ruling on the crucial
constitutional issues raised. It was a cause for concern, for me at least, that counsel of private parties in not
a few cases in the recent past had shown less than full awareness of the doctrines, procedural in character,
that call for application whenever the exercise of this awesome and delicate responsibility of adjudging the
validity of a statute or presidential decree is invoked. 3 While this Court cannot be accused of being bound
by the fetters of judicial timidity, it remains true that no cavalier disregard of tried and tested concepts
should be given encouragement. A petitioner who bases his claim for relief on asserted constitutional
deficiencies deserves to be heard. That goes without saying. For the judiciary must ever endeavor to
vindicate rights safeguarded by the fundamental law. In that sense, this Tribunal is not susceptible to the
reproach that it has imprisoned itself in its allegiance to the philosophy of judicial self-restraint. There are,
however, limits to judicial activism. It cannot be too strongly stressed that a petition of this character must
ever remain an orderly proceeding that cannot be oblivious of the requisites to be complied with to justify a
pronouncement on constitutional issues. Where there is exuberance in the exercise of judicial power, the
forms of litigation are but slight retaining walls. It is right and proper that the voice of the Solicitor General
should be heard in protest against such neglect of rudimentary precepts. Necessarily then, whenever
objections based on refusal to abide by the procedural principles are presented, this Court must rule. It
would suffice if thereby the petition is dismissed for non-observance of the controlling doctrines. There are
times, however, when the controversy is of such a character that to resolve doubts, erase uncertainty, and
assure respect for constitutional limitations, this Tribunal must pass on the merits. This is one such case. I
therefore concur with the opinion of the Court.
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It may be a task of superfluity then to write a concurring opinion. Nonetheless, a few words may not be
amiss on what for me is the proper approach to take as to the lack of power of this Court to pass on the
motives of the legislative body, on the lack of persuasiveness of petitioners argument based on the equal
protection guarantee, and on the fundamental concept of fairness of which the due process clause is an
embodiment, thus calling for the nullification of the disqualification of a candidate upon the mere filing of
charges against him.
1. The challenge to the provision in question is predicated on what was referred to as "a known fact in the
province of Nueva Vizcaya that the aforesaid provision was concocted and designed precisely to frustrate
any bid of herein petitioner to make a political come back [sic] as governor of Nueva Vizcaya. The wordings
[sic] of the law is so peculiarly attuned to discriminate against herein petitioner because every condition
imposed as disqualification grounds are known to be possessed by him because he was a former elective
provincial official who has received his retirements benefits, he desires to run for the same elective office
and at the commencement of the term of office to which he now seeks to be elected, he shall have reached
65 years of age." 4 Clearly then, the plea for invalidating such provision is the motive attributed to the
Interim Batasang Pambansa. For petitioner, it amounted to a constitutional infirmity fatal in character. The
weakness of the petition is thus apparent. No decision of this Tribunal can be cited in support of such a
proposition. It would be to extend unduly the concept of judicial review if a court can roam far and wide and
range at will over the variety and diversity of the reasons, the promptings that may lead a legislator to cast
his vote for or against a proposed legislation. It is not what inspired the introduction of a bill but the effect
thereof if duly enacted that is decisive. That would be the test for its validity or lack of it. there is this
relevant excerpt from McCray v. United States: 5 "The decisions of this Court [Supreme Court of the United
States] from the beginning lend no support whatever to the assumption that the judiciary may restrain the
exercise of lawful power on the assumption that a wrongful purpose of motive has caused the power to be
exerted." 6 The late Chief Justice Warren, who penned the opinion in United States v. OBrien, 7 put the
matter thus: "Inquiries into congressional motives or purposes are a hazardous matter. When the issue is
simply the interpretation of legislation, the Court will look to statements by legislators for guidance as to the
purpose of the legislature, because the benefit to sound decision-making in this circumstance is thought
sufficient to risk the possibility of misreading Congress purpose. It is entirely a different matter when we are
asked to void a statute that is, under well-settled criteria, constitutional on its face, on the basis of what

fewer than a handful of Congressmen said about it. What motivates one legislator to make a speech about a
statute is not necessarily what motivates scores of others to enact it, and the stakes are sufficiently high for
us to eschew guesswork. We decline to void essentially on the ground that it is unwise legislation which
Congress had the undoubted power to enact and which could be reenacted in its exact form if the same or
another legislator made a wiser speech about it." 8
2. If, however, the provision in question is susceptible to the reproach that it amounts to a denial of equal
protection, then his plea for nullification should be accorded a sympathetic response. As the opinion of the
Court makes a clear, such imputation is not deserving of credence. The classification cannot be stigmatized
as lacking in rationality. It is germane to the subject. Age, as well as the fact of retirement and the receipt of
retirement benefits are factors that can enter into any legislative determination of what disqualifications to
impose. As was pointed out in J.M. Tuason and Co., Inc. v. Land Tenure Administration: 9 "It suffices then
that the laws operate equally and uniformly on all persons under similar circumstances or that all persons
must be treated in the same manner, the conditions not being different, both in the privileges conferred and
the liabilities imposed. Favoritism and undue preference cannot be allowed. For the principle is that equal
protection and security shall be given to every person under circumstances, which if not identical, are
analogous. If law be looked upon in terms of burden or charges, those that fall within a class should be
treated in the same fashion, whatever restrictions cast on some in the group equally binding on the rest." 10
It cannot be denied that others similarly fall under the same ban. It was not directed at petitioner solely. The
most that can be said is that he falls within the proscribed class. The point was likewise raised as to why
should national officials be excluded in the above provision. The answer is simple. There is nothing to
prevent the legislative body from following a system of priorities. This it did under the challenged legislative
provision. In its opinion, what called for such a measure is the propensity of the local officials having
reached the retirement age and having received retirement benefits once again running for public office.
Accordingly, the provision in question was enacted. A portion of the opinion in the aforesaid J.M. Tuason and
Co., Inc. finds relevance: "It was confronted with a situation that called for correction, and the legislation
that was the result of its deliberation sought to apply the necessary palliative. That it stopped short of
possibly attaining the cure of other analogous ills certainly does not stigmatize its effort as a denial of equal
protection. We have given our sanction to the principle underlying the exercise of police power and taxation,
but certainly not excluding eminent domain, that the legislature is not required by the Constitution to
adhere to the policy of all "or none." Thus, to reiterate, the invocation by petitioner of the equal protection
clause is futile and unavailing." 11
3. That brings us to the assailed provision as to the sufficiency of the filing of charges for the commission of
such crimes as subversion, insurrection, rebellion or others of similar nature before a civil court or military
tribunal after preliminary investigation, being a prima facie evidence of such fact and therefore justifying the
disqualification of a candidate. The opinion of the Court invoked the constitutional presumption of innocence
as a basis for its being annulled. That conclusion is well-founded. Such being the case, I am in full
agreement. I would add that such a provision is moreover tainted with arbitrariness and therefore is
violative of the due process clause. Such a constitutional right, to quote from Luzon Surety Co., Inc. v.
Beson, 12 is "not a mere formality that may be dispensed with at will. Its disregard is a matter of serious
concern. It is a constitutional safeguard of the highest order. It is a response to mans innate sense of
justice." 13 As rightfully stressed in the opinion of the Court, the time element may invariably preclude a full
hearing on the charge against him and thus effectively negate the opportunity of an individual to present
himself as a candidate. If, as has been invariably the case, a prosecutor, whether in a civil court or in a
military tribunal, saddled as he is with so many complaints filed on his desk would give in to the all-toohuman propensity to take the easy way out and to file charges, then a candidate would be hard put to
destroy the presumption. A sense of realism for me compels a declaration of nullity of a provision which on
its face is patently offensive to the Constitution.
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Hence my concurrence.
TEEHANKEE, J., dissenting:

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Files a separate opinion dissenting from the adverse ruling on Dumlaos candidacy and declining to rule on
the invalidity of the first part of Section 4 of the questioned Law; and concurs with the pronouncement that
the mere filing of charges shall be prima facie cause for disqualification is void.
I. I dissent from the majoritys dismissal of the petition insofar as it upholds the discriminatory and arbitrary
provision of Sec. 4 of Batas Pambansa Blg. 52 which would impose a special disqualification on petitioner
Patricio Dumlao from running for the elective local office of governor of his home province of Nueva Vizcaya
and would in effect bar the electors of his province from electing him to said office in the January 30

elections, simply because he is a retired provincial governor of said province "who has received payment of
the retirement benefits to which he is entitled under the law and who shall have been 65 years of age at the
commencement of the term of office to which he seeks to be elected."
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To specially and peculiarly ban a 65-year old previously retired elective local official from running for the
same elective office (of governor, in this case) previously held by him and from which he has retired is
arbitrary, oppressive and unreasonable. Persons similarly situated are not similarly treated, e.g. a retired
vice-governor, mayor or councilor of 65 is entitled to run for governor (because the disqualification is for the
retiree of 65 to run for the same elective office from which he retired) but petitioner is barred from doing so
(although he may run for any other lesser office). Both are 65 and are retirees, yet one is barred from
running for the office of governor. What is the valid distinction? Is this not an arbitrary discrimination against
petitioner who has cause to complain that "the aforesaid provision was concocted and designed precisely to
frustrate any bid of herein petitioner to make a political comeback as governor of Nueva Vizcaya 1 (since
no other case of a former governor similarly barred by virtue of said provision can ever be cited 2). Is there
not here, therefore, a gross denial of the cardinal constitutional guarantee that equal protection and security
shall be given under the law to every person, under analogous if not identical circumstances?
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Respondents claim, as accepted by the majority, is that the purpose of the special disqualification is "to
infuse new blood in local governments" but the classification (that would bar 65-year old retirees from
running for the same elective local office) is not rational nor reasonable. It is not germane nor relevant to
the alleged purpose of "infusing new blood" because such "old blood" retirees may continue in local
governments since they are not disqualified at all to run for any other local elective office such as from
provincial governor, vice-governor, city, municipal or district mayor and vice-mayor to member of the
Sangguniang Panlalawigan, Sangguniang Panglunsod and Sangguniang Bayan, other than the local elective
office from which they retired.
Furthermore, other 65-year olds who have likewise retired from the judiciary and other branches of
government are not in any manner disqualified to run for any local elective office, as in the case of retired
Court of First Instance Judge (former Congressman) Alberto S. Ubay who retired with full substantial
retirement benefits as such judge in 1978 at age 70 and now at past 71 years of age, is running as the
official KBL candidate for governor of his province. And even in the case of 65-year old local elective officials,
they are disqualified only when they have received payment of the retirement benefits to which they are
entitled under the law (which amount to very little, compared to retirement benefits of other executive
officials and members of the judiciary). If they have not received such retirement benefits, they are not
disqualified. Certainly, their disqualification or non-disqualification and consequent classification as "old
blood" or "new blood" cannot hinge on such an irrelevant question or whether or not they have received
their retirement benefits.
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The classification is patently arbitrary and unreasonable and is not based on substantial distinction which
make for real differences that would justify the special disqualification of petitioner, which, it is claimed, "is
based on a presumption that elective local officials who have retired and are of advanced age cannot
discharge the functions of the office they seek as those who are differently situated." 3 Such presumption is
sheer conjecture. The mere fact that a candidate is less than 65 or has "young or new blood" does not mean
that he would be more efficient, effective and competent than a mature 65-year old like petitioner who has
had experience on the job and who was observed at the hearing to appear to be most physically fit. Suffice
it to cite the outstanding case of the incumbent ebullient Minister of Foreign Affairs, Gen. Carlos P. Romulo,
who was elected at 80 as a member of the Interim Batasan Pambansa and who has just this month
completed 81 years of age and has been hailed by the President himself as "the best foreign minister the
Republic has ever had."
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Age has simply just never been a yardstick for qualification or disqualification. At the most, a minimum age
to hold public office has been required as a qualification to insure a modicum of maturity (now reduced to 21
years in the present batas), but no maximum age has ever been imposed as a disqualification for elective
public office since the right and will of the people to elect the candidate of their choice for any elective office,
no matter his age, has always been recognized as supreme.
The disqualification in question therefore is grossly violative of the equal protection clause which mandates
that all persons subjected to legislation shall be treated alike, under like circumstances and conditions, both
in the privileges conferred and in the liabilities imposed. The guarantee is meant to proscribe undue favor
and individual or class privilege on the one hand and hostile discrimination and the oppression of inequality
on the other. The questioned provision should therefore at the least be declared invalid in its application
insofar as it would disqualify petitioner from running for the office of governor of his province.

As aptly restated by the Chief Justice, "Persons similarly situated should be similarly treated. Where no valid
distinction could be made as to the relevant conditions that call for consideration, there should be none as to
the privileges conferred and the liabilities imposed. There can be no undue favoritism or partiality on the one
hand or hostility on the other. Arbitrary selection and discrimination against persons in thus ruled out. For
the principle is that equal protection and security shall be given to every person under circumstances, which
if not identical are analogous. If law be looked upon in terms of burden or charges, those that full within a
class should be treated in the same fashion, whatever restrictions cast on some in the group equally binding
on the rest." 4
Finally, this arbitrary disqualification is likewise grossly violative of Article XII, sub-article C, section 9(1) of
the 1973 Constitution that "Bona fide candidates for any public office shall be free from any form of
harassment and discrimination."
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II. I concur with the majoritys declaration of invalidity of the portion of the second paragraph of section 4 of
Batas Pambansa Blg. 52 which would make the mere filing of charges of subversion, insurrection, rebellion
or other similar crimes before a civil court or military tribunal after preliminary investigation prima facie
evidence of the fact of commission of an act of disloyalty to the State on the part of the candidate and
disqualify him from his candidacy. Such a provision could be the most insidious weapon to disqualify bona
fide candidates who seem to be headed for election and places in the hands of the military and civil
prosecutors a dangerous and devastating weapon of cutting off any candidate who may not be to their liking
through the filing of last-hour charges against him.
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I also concur with the pronouncement made in the majority decision that in order that a judgment of
conviction may be deemed "as conclusive evidence" of the candidates disloyalty to the State and of his
disqualification from office, such judgment of conviction must be final and unappealable. This is so
specifically provided in Section 22 of the 1978 Election Code. 5 Otherwise, the questioned provision would
deny the bona fide candidate substantive due process and would be grossly violative of his constitutional
right of presumption of innocence and of the above-quoted provision of the 1973 Constitution protecting
candidates for public office from any form of harassment and discrimination.
ADDENDUM
When the case was voted upon a second time last January 21st, there appeared to be a majority in favor of
the declarations and pronouncements above referred to in the two preceding paragraphs, in view of the
urgency of the matter and the evil sought to be avoided. However, as of this writing, January 23, 1980 in
the afternoon, such majority seems to have been dissipated by the view that the action to nullify such
second paragraph of section 4 of the Batas in question is premature and has not been properly submitted for
adjudication under the strict procedural requirements. If this be the case, my above views, termed as
concurrences, should be taken as dissents against the majority action.
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