G.R. No.

81567 October 3, 1991 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ROBERTO UMIL, ROLANDO DURAL and RENATO VILLANUEVA, MANOLITA O. UMIL and NICANOR P. DURAL, FELICITAS V. SESE, petitioners, vs. FIDEL V. RAMOS, MAJ. GEN. RENATO DE VILLA, BRIG. GEN. RAMON MONTANO, BRIG. GEN. ALEXANDER AGUIRRE, respondents. G.R. Nos. 84581-82 October 3, 1991 AMELIA ROQUE and WILFREDO BUENAOBRA, petitioners, vs. GEN. RENATO DE VILLA and GEN, RAMON MONTANO, respondents. G.R. Nos. 84583-84 October 3, 1991 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF ATTY. DOMINGO T. ANONUEVO and RAMON CASIPLE: DOMINGO T. ANONUEVO and RAMON CASIPLE, petitioners, vs. HON. FIDEL V. RAMOS, GEN. RENATO S. DE VILLA, COL. EVARISTO CARIO, LT. COL. REX D. PIAD, T/SGT. CONRADO DE TORRES, S/SGT. ARNOLD DURIAN, and Commanding Officer, PC-INP Detention Center, Camp Crame, Quezon City, respondents. G.R. No. 83162 October 3, 1991 IN THE MATTER OF THE APPLICATION FOR HABEAS CORPUS OF VICKY A. OCAYA AND DANNY RIVERA: VIRGILIO A. OCAYA, petitioners, vs. BRIG. GEN. ALEXANDER AGUIRRE, COL. HERCULES CATALUNA, COL. NESTOR MARIANO, respondents. G.R. No. 85727 October 3, 1991 IN THE MATTER OF APPLICATION FOR HABEAS CORPUS OF DEOGRACIAS ESPIRITU, petitioner, vs. BRIG. GEN.ALFREDO S. LIM, COL. RICARDO REYES, respondents. G.R. No. 86332 October 3, 1991 IN THE MATTER OF THE PETITION FOR HABEAS CORPUS OF NARCISO B. NAZARENO: ALFREDO NAZARENO,petitioner, vs. THE STATION COMMANDER OF THE MUNTINGLUPA POLICE STATION, Muntinglupa, Metro Manila, P/SGT. JACINTO MEDINA, P/SGT. ELADIO TAGLE, P/SGT. LEVI SOLEDAD, and P/SGT. MALTRO AROJADO, respondents. RESOLUTION PER CURIAM: p Before the Court are separate motions filed by the petitioners in the above-entitled petitions, seeking reconsideration of the Court's decision promulgated on 9 July 1990 (the decision, for brevity) which dismissed the petitions, with the following dispositive part: WHEREFORE, the petitions are hereby DISMISSED, except that in G.R. No. 85727 (Espiritu vs. Lim), the bail bond for petitioner's provisional liberty is hereby ordered reduced from P60,000.00 to P10,000.00. No costs.

The Court avails of this opportunity to clarify its ruling a begins with the statement that the decision did not rule as many misunderstood it to do that mere suspicion that one is Communist Party or New People's Army member is a valid ground for his arrest without warrant. Moreover, the decision merely applied long existing laws to the factual situations obtaining in the several petitions. Among these laws are the outlawing the Communist Party of the Philippines (CPP) similar organizations and penalizing membership therein be dealt with shortly). It is elementary, in this connection, if these laws no longer reflect the thinking or sentiment of the people, it is Congress as the elected representative of the people not the Court that should repeal, change or modify them. In their separate motions for reconsideration, petitioners, in sum, maintain: 1. That the assailed decision, in upholding the validity of the questioned arrests made without warrant, and in relying on the provisions of the Rules of Court, particularly Section 5 of Rule 113 (Arrest), disregards the fact that such arrests violated the constitutional rights of the persons arrested; 2. That the doctrine laid down in Garcia vs. Enrile 1 and Ilagan vs. Enrile 2 should be abandoned; 3. That the decision erred in considering the admissions made by the persons arrested as to their membership in the Communist Party of the Philippines/New People's Army, and their ownership of the unlicensed firearms, ammunitions and subversive documents found in their possession at the time of arrest, inasmuch as those confessions do not comply with the requirements on admissibility of extrajudicial admissions; 4. That the assailed decision is based on a misappreciation of facts; 5. That G.R. No. 81567 (the Umil case) should not be deemed moot and academic. We find no merit in the motions for reconsideration. It can not be overlooked that these are petitions for the issuance of the writ of habeas corpus, filed by petitioners under the Rules of Court. 3 The writ of habeas corpus exists as a speedy and effective remedy to relieve persons from unlawful restraint. 4 Therefore, the function of the special proceedings of habeas corpus is to inquire into the legality of one's detention, 5 so that if detention is illegal, the detainee may be ordered forthwit released. In the petitions at bar, to ascertain whether the detention petitioners was illegal or not, the Court before rendering decision dated 9 July 1990, looked into whether their questioned arrests without warrant were made in accordance with law. For, if the arrests were made in accordance with law, would follow that the detention resulting from such arrests also in accordance with law. There can be no dispute that, as a general rule, no peace officer or person has the power or authority to arrest anyo without a warrant of arrest, except in those cases express authorized by law. 6 The law expressly allowing arrests witho warrant is found in Section 5, Rule 113 of the Rules of Court which states the grounds upon which a valid arrest, without warrant, can be conducted. In the present cases, the focus is understandably on Section 5, paragraphs (a) and (b) of the said Rule 113, which read: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to he arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrest has committed it; and . . . (Emphasis supplied).

The Court's decision of 9 July 1990 rules that the arrest Rolando Dural (G.R. No. 81567) without warrant is justified it can be said that, within the contemplation of Section 5 Rule 113, he (Dural) was committing an offense, when arrested because Dural was arrested for being a member of the New People's Army, an outlawed organization, where membership penalized, 7 and for subversion which, like rebellion is, under the doctrine of Garcia vs. Enrile, 8 a continuing offense, thus: The crimes of insurrection or rebellion, subversion, conspiracy or proposal to commit such crimes, and other crimes and offenses committed in the furtherance (sic) on the occasion thereof, or incident thereto, or in connection therewith under Presidential Proclamation No. 2045, are all in the nature of continuing offenses which set them apart from the common offenses, aside from their essentially involving a massive conspiracy of nationwide magnitude. . . . Given the ideological content of membership in the CPP/NPA which includes armed struggle for the overthrow of organized government, Dural did not cease to be, or became less of a subversive, FOR PURPOSES OF ARREST, simply because he was, at the time of arrest, confined in the St. Agnes Hospital. Dural was identified as one of several persons who the day before his arrest, without warrant, at the St. Agnes Hospital, had shot two (2) CAPCOM policemen in their patrol car. That Dural had shot the two (2) policemen in Caloocan City as part of his mission as a "sparrow" (NPA member) did not end there and then. Dural, given another opportunity, would have shot or would shoot other policemen anywhere as agents or representatives of organized government. It is in this sense that subversion like rebellion (or insurrection) is perceived here as a continuing offense. Unlike other so-called "common" offenses, i.e. adultery, murder, arson, etc., which generally end upon their commission, subversion and rebellion are anchored on an ideological base which compels the repetition of the same acts of lawlessness and violence until the overriding objective of overthrowing organized government is attained. Nor can it be said that Dural's arrest was grounded on mere suspicion by the arresting officers of his membership in the CPP/NPA. His arrest was based on "probable cause," as supported by actual facts that will be shown hereafter. Viewed from another but related perspective, it may also be said, under the facts of the Umil case, that the arrest of Dural falls under Section 5, paragraph (b), Rule 113 of the Rules of Court, which requires two (2) conditions for a valid arrestt without warrant: first, that the person to be arrested has just committed an offense, and second, that the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested is the one who committed the offense. Section 5(b), Rule 113, it will be noted, refers to arrests without warrant, based on "personal knowledge of facts" acquired by the arresting officer or private person. It has been ruled that "personal knowledge of facts," in arrests without warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion 9 The grounds of suspicion are reasonable when, in the absence of actual belief of the arresting officers, the suspicion that the person to be arrested is probably guilty of committing the offense, is based on actual facts, i.e., supported by circumstances sufficiently strong in themselves to create the probable cause of guilt of the person to be arrested. 10 A reasonable suspicion therefore must be founded on probable cause, coupled with good faith on the part of the peace officers making the arrest. 11 These requisites were complied with in the Umil case and in the other cases at bar. In G.R. No. 81567 (Umil case), military agents, on 1 February 1988, were dispatched to the St. Agnes Hospital, Roosevelt Avenue, Quezon City, to verify a confidential information which was received by their office, about a "sparrow man" (NPA member) who had been admitted to the said hospital with a gunshot wound; that the information further disclosed that the wounded man in the said hospital was among the five (5) male "sparrows" who murdered two (2) Capcom mobile patrols the day before, or on 31 January 1988 at about 12:00 o'clock noon, before a road hump along Macanining St., Bagong Barrio, Caloocan City; that based on the same information, the wounded man's name was listed by the hospital management as "Ronnie Javellon," twenty-two (22) years old of Block 10, Lot 4, South City Homes, Bian, Laguna. 12 Said confidential information received by the arresting officers, to the effect that an NPA member ("sparrow unit") was being treated for a gunshot wound in the named hospital, is deemed reasonable and with cause as it was based on actual facts and supported by circumstances sufficient to engender a belief that an NPA member was truly in the said

hospital. The actual facts supported by circumstances are: first the day before, or on 31 January 1988, two (2) CAPCOM soldiers were actually killed in Bagong Bario, Caloocan City by five (5) "sparrows" including Dural; second a wounded person listed in the hospital records as "Ronnie Javellon" was actually then being treated in St. Agnes Hospital for a gunshot wound; third as the records of this case disclosed later, "Ronnie Javellon" and his address entered in the hospital records were fictitious and the wounded man was in reality Rolando Dural. In fine, the confidential information received by the arresting officers merited their immediate attention and action and, in fact, it was found to be true. Even the petitioners in their motion for reconsideration, 13 believe that the confidential information of the arresting officers to the effect that Dural was then being treated in St. Agnes Hospital was actually received from the attending doctor and hospital management in compliance with the directives of the law, 14 and, therefore, came from reliable sources. As to the condition that "probable cause" must also be coupled with acts done in good faith by the officers who make the arrest, the Court notes that the peace officers wno arrested Dural are deemed to have conducted the same in good faith, considering that law enforcers are presumed to regularly perform their official duties. The records show that the arresting officers did not appear to have been ill-motivated in arresting Dural. 15 It is therefore clear that the arrest, without warrant, of Dural was made in compliance with the requirements of paragraphs (a) and (b) of Section 5, Rule 113. Parenthetically, it should be mentioned here that a few day after Dural's arrest, without warrant, an information charging double murder with assault against agents of persons in authority was filed against Dural in the Regional Trial Court of Caloocan City (Criminal Case No. C-30112). He was thus promptly placed under judicial custody (as distinguished fro custody of the arresting officers). On 31 August 1988, he wa convicted of the crime charged and sentenced to reclusion perpetua. The judgment of conviction is now on appeal before this Court in G.R. No. 84921. As to Amelia Roque and Wilfredo Buenaobra (G.R. Nos. 84581-82), Domingo Anonuevo and Ramon Casiple (G.R. Nos. 84583-84) and Vicky Ocaya (G.R. No. 83162), their arrests, without warrant, are also justified. They were searched pursuant to search warrants issued by a court of law and were found wit unlicensed firearms, explosives and/or ammunition in their persons. They were, therefore, caught in flagrante delicto which justified their outright arrests without warrant, under Sec 5(a), Rule 113, Rules of Court. Parenthetically, it should be mentioned here that a few davs after their arrests without warrant, informations were filed in court against said petitioners, thereby placing them within judicial custody and disposition. Furthermore, Buenaobra mooted his own petition fo habeas corpus by announcing to this Court during the hearing of these petitions that he had chosen to remain in detention in the custody of the authorities. More specifically, the antecedent facts in the "in flagrante" cases are: 1. On 27 June 1988, the military agents received information imparted by a former NPA about the operations of the CPP and NPA in Metro Manila and that a certain house occupied by one Renato Constantine, located in the Villaluz Compound, Molave St., Marikina Heights, Marikina, Metro Manila was being used as their safehouse; that in view of this information, the said house was placed under military surveillance and on 12 August 1988, pursuant to a search warrant duly issued by court, a search of the house was conducted; that when Renato Constantine was then confronted he could not produce any permit to possess the firearms, ammunitions, radio and other communications equipment, and he admitted that he was a ranking member of the CPP. 16 2. In the case of Wilfredo Buenaobra, he arrived at the house of Renato Constantino in the evening of 12 August 1988, and admitted that he was an NPA courier and he had with him letters to Renato Constantine and other members of the rebel group. 3. On the other hand, the arrest of Amelia Roque was a consequence of the arrest of Buenaobra who had in his possession papers leading to the whereabouts of Roque; 17 that, at the time of her arrest, the military agents found subversive documents and live ammunitions, and she admitted then that the documents belonged to her. 18 4. As regards Domingo Anonuevo and Ramon Casiple they were arrested without warrant on 13 August 1988, when they arrived at the said house of Renato Constantine in the evening of said date; that when the agents frisked them,

subversive documents, and loaded guns were found in the latter's possession but failing to show a permit to possess them. 19 5. With regard to Vicky Ocaya, she was arrested, without warrant when she arrived (on 12 May 1988) at the premises ofthe house of one Benito Tiamzon who was believed to be the head of the CPP/NPA, and whose house was subject of a search warrant duly issued by the court. At the time of her arrest without warrant the agents of the PC-Intelligence and Investigation found ammunitions and subversive documents in the car of Ocaya. 20 It is to be noted in the above cases (Roque, Buenaobra, Anonuevo, Casiple and Ocaya) that the reason which compelled the military agents to make the arrests without warrant was the information given to the military authorities that two (2) safehouses (one occupied by Renato Constantine and the other by Benito Tiamzon) were being used by the CPP/NPA for their operations, with information as to their exact location and the names of Renato Constantine and Benito Tiamzon as residents or occupants thereof. And at the time of the actual arrests, the following circumstances surrounded said arrests (of Roque, Buenaobra, Anonuevo and Casiple), which confirmed the belief of the military agents that the information they had received was true and the persons to be arrested were probably guilty of the commission of certain crimes: first: search warrant was duly issued to effect the search of the Constantine safehouse; second: found in the safehouse was a person named Renato Constantine, who admitted that he was a ranking member of the CPP, and found in his possession were unlicensed firearms and communications equipment; third: at the time of their arrests, in their possession were unlicensed firearms, ammunitions and/or subversive documents, and they admitted ownership thereof as well as their membership in the CPP/NPA. And then, shortly after their arrests, they were positively identified by their former comrades in the organization as CPP/NPA members. In view of these circumstances, the corresponding informations were filed in court against said arrested persons. The records also show that, as in the case of Dural, the arrests without warrant made by the military agents in the Constantino safehouse and later in the Amelia Roque house, do not appear to have been ill-motivated or irregularly performed. With all these facts and circumstances existing before, during and after the arrest of the afore-named persons (Dural, Buenaobra, Roque, Anonuevo, Casiple and Ocaya), no prudent an can say that it would have been better for the military agents not to have acted at all and made any arrest. That would have been an unpardonable neglect of official duty and a cause for disciplinary action against the peace officers involved. For, one of the duties of law enforcers is to arrest lawbreakers in order to place them in the hands of executive and judicial authorities upon whom devolves the duty to investigate the acts constituting the alleged violation of law and to prosecute and secure the punishment therefor. 21 An arrest is therefore in the nature of an administrative measure. The power to arrest without warrant is without limitation as long as the requirements of Section 5, Rule 113 are met. This rule is founded on an overwhelming public interest in peace and order in our communities. In ascertaining whether the arrest without warrant is conducted in accordance with the conditions set forth in Section 5, Rule 113, this Court determines not whether the persons arrested are indeed guilty of committing the crime for which they were arrested. 22 Not evidence of guilt, but "probable cause" is the reason that can validly compel the peace officers, in the performance of their duties and in the interest of public order, to conduct an arrest without warrant. 23 The courts should not expect of law-enforcers more than what the law requires of them. Under the conditions set forth in Section 5, Rule 113, particularly paragraph (b) thereof, even if the arrested persons are later found to be innocent and acquitted, the arresting officers are not liable. 24 But if they do not strictly comply with the said conditions, the arresting officers can be held liable for the crime of arbitrary detention, 25 for damages under Article 32 of the Civil Code 26 and/or for other administrative sanctions. In G.R. No. 85727, Espiritu, on 23 November 1988, was arrested without warrant, on the basis of the attestation of certain witnesses: that about 5:00 o'clock in the afternoon of 22 November 1988, at the corner of Magsaysay Boulevard and Velencia St., Sta. Mesa, Manila, Espiritu spoke at a gathering of drivers and sympathizers, where he said, among other things: Bukas tuloy ang welga natin . . . hanggang sa magkagulona. 27 (Emphasis supplied)

and that the police authorities were present during the press conference held at the National Press Club (NPC) on 22 November 1988 where Espiritu called for a nationwide strike (of jeepney and bus drivers) on 23 November 1988. 28 Espiritu was arrested without warrant, not for subversion or any "continuing offense," but for uttering the above-quoted language which, in the perception of the arresting officers, was inciting to sedition. Many persons may differ as to the validity of such perception and regard the language as falling within free speech guaranteed by the Constitution. But, then, Espiritu had not lost the right to insist, during the pre-trial or trial on the merits, that he was just exercising his right to free speech regardless of the charged atmosphere in which it was uttered. But, the authority of the peace officers to make the arrest, without warrant, at the time the words were uttered, or soon thereafter, is still another thing. In the balancing of authority and freedom, which obviously becomes difficult at times, the Court has, in this case, tilted the scale in favor of authority but only for purposes of the arrest (not conviction). Let it be noted that the Court has ordered the bail for Espiritu's release to be reduced from P60,000.00 to P10,000.00. Let it also be noted that supervening events have made the Espiritu case moot and academic. For Espiritu had before arraignment asked the court a quo for re-investigation, the peace officers did not appear. Because of this development, the defense asked the court a quo at the resumption of the hearings to dismiss the case. Case against Espiritu (Criminal Case No. 88-68385) has been provisionally dismissed and his bail bond cancelled. In G.R. No. 86332 (Nazareno), the records show that in the morning of 14 December 1988, Romulo Bunye II was killed by a group of men in Alabang, Muntinlupa, Metro Manila; that at about 5:00 o'clock in the morning of 28 December 1988, Ramil Regala, one of the suspects in the said killing, was arrested and he pointed to Narciso Nazareno as one of his companions during the killing of Bunye II; that at 7:20 of the same morning (28 December 1988), the police agents arrested Nazareno, without warrant, for investigation. 29 Although the killing of Bunye II occurred on 14 December 1988, while Nazareno's arrest without warrant was made only on 28 December 1988, or 14 days later, the arrest fans under Section 5(b) of Rule 113, since it was only on 28 December 1988 that the police authorities came to know that Nazareno was probably one of those guilty in the killing of Bunye II and the arrest had to be made promptly, even without warrant, (after the police were alerted) and despite the lapse of fourteen (14) days to prevent possible flight. As shown in the decision under consideration, this Court, in upholding the arrest without warrant of Nazareno noted several facts and events surrounding his arrest and detention, as follows: . . . on 3 January 1989 (or six (6) days after his arrest without warrant), an information charging Narciso Nazareno, Ramil Regala and two (2) others, with the killing of Romulo Bunye II was filed wit the Regional Trial Court of Makati, Metro Manila. The case is dock eted therein as Criminal Case No. 731. On 7 January 1989, Narciso Nazareno filed a motion to post bail but the motion was denied by the trial court in an order dated 10 January 1989, even as the motion to post bail, earlier filed by his co-accused, Manuel Laureaga, was granted by the same trial court. On 13 January 1989, a petition for habeas corpus was filed with this Court on behalf of Narciso Nazareno and on 13 January 1989, the Court issued the writ of habeas corpus, retumable to the Presiding Judge of the Regional Trial Court of Bifian, Laguna, Branch 24, ordering said court to hear the case on 30 January 1989 and thereafter resolve the petition. At the conclusion of the hearing, or on 1 February 1989, the Presiding Judge of the Regional Trial Court of Bian, Laguna issued a resolution denying the petition for habeas corpus, it appearing that the said Narciso Nazareno is in the custody of the respondents by reason of an information filed against him with the Regional Trial Court of Makati, Metro Manila which liad taken cognizance of said case and had, in fact, denied the motion for bail filed by said Narciso Nazareno (presumably because of the strength of the evidence against him). This Court reiterates that shortly after the arrests of Espiritu and Nazareno, the corresponding informations against them were filed in court. The arrests of Espiritu and Nazareno were based on probable cause and supported by factual circumstances. They complied with conditions set forth in Section 5(b) of Rule 113. They were not arbitrary or whimsical arrests.

Parenthetically, it should be here stated that Nazareno has since been convicted by the court a quo for murder and sentenced to reclusion perpetua. He has appealed the judgment of conviction to the Court of Appeals where it is pending as of this date ( CA-G.R. No. still undocketed). Petitioners contend that the decision of 9 July 1990 ignored the contitution requisiteds for admissibility of an extrajudicial admission. In the case of Buenaobra (G.R. Nos. 84581-82), he admitted 30 that he was an NPA courier. On the other hand, in the case of Amelia Roque, she admitted 31 that the unlicensed firearms, ammunition and subversive documents found in her possession during her arrest, belonged to her. The Court, it is true, took into account the admissions of the arrested persons of their membership in the CPP/NPA, as well as their ownership of the unlicensed firearms, ammunitions and documents in their possession. But again, these admissions, as revealed by the records, strengthen the Court's perception that truly the grounds upon which the arresting officers based their arrests without warrant, are supported by probable cause, i.e. that the persons arrested were probably guilty of the commission of certain offenses, in compliance with Section 5, Rule 113 of the Rules of Court. To note these admissions, on the other hand, is not to rule that the persons arrested are already guilty of the offenses upon which their warrantless arrests were predicated. The task of determining the guilt or innocence of persons arrested without warrant is not proper in a petition for habeas corpus. It pertains to the trial of the case on the merits. As to the argument that the doctrines in Garcia vs. Enrile, and Ilagan vs. Enrile should be abandoned, this Court finds no compelling reason at this time to disturb the same, particularly ln the light of prevailing conditions where national security and liability are still directly challenged perhaps with greater vigor from the communist rebels. What is important is that everv arrest without warrant be tested as to its legality via habeas corpus proceeding. This Court. will promptly look into and all other appropriate courts are enjoined to do the same the legality of the arrest without warrant so that if the conditions under Sec. 5 of Rule 113, Rules of Court, as elucidated in this Resolution, are not met, then the detainee shall forthwith be ordered released; but if such conditions are met, then the detainee shall not be made to languish in his detention but must be promptly tried to the end that he may be either acquitted or convicted, with the least delay, as warranted by the evidence.

A Final Word
This Resolution ends as it began, reiterating that mere suspicion of being a Communist Party member or a subversive is absolutely not a ground for the arrest without warrant of the suspect. The Court predicated the validity of the questioned arrests without warrant in these petitions, not on mere unsubstantiated suspicion, but on compliance with the conditions set forth in Section 5, Rule 113, Rules of Court, a long existing law, and which, for stress, are probable cause and good faith of the arresting peace officers, and, further, on the basis of, as the records show, the actual facts and circumstances supporting the arrests. More than the allure of popularity or palatability to some groups, what is important is that the Court be right. ACCORDINGLY, the motions for reconsideration of the decision dated 9 July 1990, are DENIED. This denial is FINAL. SO ORDERED.

G.R. No. 93239 March 18, 1991 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. EDISON SUCRO, accused-appellant. GUTIERREZ, JR., J.:p Edison Sucro was charged with and convicted of violation of Section 4, Article II of the Dangerous Drugs Act, under an Information which reads: That on or about the 21st day of March, 1989, in the evening, in the Poblacion, Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, acting as a pusher or broker in the business of selling, administering, delivery, giving away to another and/or distributing prohibited drugs, did then and there wilfully, unlawfully and feloniously and without authority of law have in his possession and control nineteen (19) pieces of marijuana cigarette sticks and four (4) tea bags of dried marijuana leaves which were confiscated from him by the police authorities of Kalibo, Aklan, shortly after having sold one tea bag of dried marijuana leaves to a customer. (Rollo, p. 9) Upon arraignment, the accused-appellant, assisted by counsel, entered a plea of "not guilty" to the offense charged. Trial ensued and a judgment of conviction was rendered, the pertinent portion of which reads: WHEREFORE, judgment is rendered finding the accused Edison Sucro guilty of the sale of prohibited drug under Section 4, Article II of the Dangerous Drug Act, as amended, and sentencing him to suffer the penalty of life imprisonment, and pay a fine of P20,000, and costs. He shall be entitled to full credit in the service of his sentence with the period for which he has undergone preventive imprisonment to the date of promulgation of this judgment. All the items of marijuana confiscated in this case are declared forfeited in favor of the State. (Rollo, p. 41) From the foregoing judgment of conviction, accused-appellant interposes this appeal, assigning the following as errors allegedly committed by the court a quo, to wit: I THE LOWER COURT ERRED IN ADMITTING AS EVIDENCE FOR THE PROSECUTION EXHIBITS "E"-"E-4", TEA BAGS OF ALLEGED MARIJUANA, TO BE THE CORPUS DELICTI; FURTHERMORE, THAT THE SAME WERE TAKEN WITHOUT THE REQUIRED WARRANT OF SEARCH AND ARREST SINCE THE ACCUSED WAS NOT IN THE ACT OF COMMITTING ANY OFFENSE AT THE TIME OF HIS ARREST. II THE LOWER COURT ERRED IN FINDING THE ACCUSED EDISON SUCRO GUILTY OF THE SALE OF PROHIBITED DRUGS UNDER SECTION 4, ARTICLE II, OF THE DANGEROUS DRUGS ACT AND SENTENCING HIM TO SUFFER A PENALTY OF LIFE IMPRISONMENT AND TO PAY A FINE OF P 20,000.00. (Appellant's Brief, p. 1) The antecedent facts of the case as summarized by the Solicitor General are as follows: On March 21, 1989, Pat. Roy Fulgencio, a member of the INP, Kalibo, Aklan, was instructed by P/Lt. Vicente Seraspi, Jr. (Station Commander of the INP Kalibo, Aklan) to monitor the activities of appellant Edison Sucro, because of information gathered by Seraspi that Sucro was selling marijuana. (p. 6, TSN, May 2,1989).

As planned, at about 5:00 P.M. on said date, Pat. Fulgencio Positioned himself under the house of a certain Arlie Regalado at C. Quimpo Street. Adjacent to the house of Regalado, about 2 meters away, was a chapel. Thereafter, Pat. Fulgencio saw appellant enter the chapel, taking something which turned out later to be marijuana from the compartment of a cart found inside the chapel, and then return to the street where he handed the same to a buyer, Aldie Borromeo. After a while appellant went back to the chapel and again came out with marijuana which he gave to a group of persons. (pp. 6-8, 15-18, Ibid). It was at this instance that Pat. Fulgencio radioed P/Lt. Seraspi and reported the activity going on. P/Lt. Seraspi instructed Pat. Fulgencio to continue monitoring developments. At about 6:30 P.M., Pat. Fulgencio again called up Seraspi to report that a third buyer later Identified as Ronnie Macabante, was transacting with appellant. (pp. 18-19, Ibid) At that point, the team of P/Lt. Seraspi proceeded to the area and while the police officers were at the Youth Hostel at Maagma St., Pat. Fulgencio told P/Lt. Seraspi to intercept Macabante and appellant. P/Lt. Seraspi and his team caught up with Macabante at the crossing of Mabini and Maagma Sts. in front of the Aklan Medical Center. Upon seeing the police, Macabante threw something to the ground which turned out to be a tea bag of marijuana. (pp. 6-8, TSN, June 19, 1989) When confronted, Macabante readily admitted that he bought the same from appellant (Edison Sucro) in front of the chapel. (p. 6, TSN, May 24, 1989) The police team was able to overtake and arrest appellant at the corner of C. Quimpo and Veterans Sts. The police recovered 19 sticks and 4 teabags of marijuana from the cart inside the chapel and another teabag from Macabante, The teabags of marijuana were sent to the PC-INP Crime Laboratory Service, at Camp Delgado, Iloilo City for analysis. The specimens (Exhibits "G" to "G-18", Exhibits "E" to "E-4") were all found positive of marijuana. (pp. 47, TSN, Sept. 4, 1989)" (Appellee's Brief, pp. 3-6) As can be seen from the facts, the issue hinges mainly on whether or not the arrest without warrant of the accused is lawful and consequently, whether or not the evidence resulting from such arrest is admissible. We rule in the affirmative. The accused-appellant contends that his arrest was illegal, being a violation of his rights granted under Section 2, Article III of the 1987 Constitution. He stresses that there was sufficient time for the police officers to apply for a search and arrest warrants considering that Fulgencio informed his Station Commander of the activities of the accused two days before March 21, 1989, the date of his arrest. This contention is without merit. Section 5, Rule 113 of the Rules on Criminal Procedure provides for the instances where arrest without warrant is considered lawful. The rule states:

Arrest without warrant, when lawful. A peace officer or private person may, without warrant, arrest a person:
(a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (Emphasis supplied) An offense is committed in the presence or within the view of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at a distance, or hears the disturbances created thereby and proceeds at once to the scene thereof. (U.S. v. Fortaleza, 12 Phil. 472 [1909]; and U.S. v. Samonte, 16 Phil. 516 [1910]) The records show that Fulgencio went to Arlie Regalado's house at C. Quimpo Street to monitor the activities of the accused who was earlier reported to be selling marijuana at a chapel two (2) meters away from Regalado's house. Fulgencio, within a distance of two meters saw Sucro conduct his nefarious activity. He saw Sucro talk to some persons, go inside the chapel, and return to them and exchange some things. These, Sucro did three times during the time that he was being monitored. Fulgencio would then relay the on-going transaction to P/Lt. Seraspi.

Anent the second requirement, the fact that Macabante, when intercepted by the police, was caught throwing the marijuana stick and when confronted, readily admitted that he bought the same from accused-appellant clearly indicates that Sucro had just sold the marijuana stick to Macabante, and therefore, had just committed an illegal act of which the police officers had personal knowledge, being members of the team which monitored Sucro's nefarious activity. The court earlier indicated in the case of People v. Bati (G.R. No. 87429, August 27, 1990) that police officers have personal knowledge of the actual commission of the crime when it had earlier conducted surveillance activities of the accused. Thus, it stated: When Luciano and Caraan reached the place where the alleged transaction would take place and while positioned at a street comer, they saw appellant Regalado Bati and Warner Marquez by the side of the street about forty to fifty meters away from them (the public officers). They saw Marquez giving something to Bati, who, thereafter handed a wrapped object to Marquez who then inserted the object inside the front of his pants in front of his abdomen while Bati, on his part, placed the thing given to him inside his pocket. (p. 2) xxx xxx xxx . . . Both Patrolman Luciano and Caraan actually witnessed the same and their testimonies were based on their actual and personal knowledge of the events that took place leading to appellant's arrest. They may not have been within hearing distance, specially since conversation would expectedly be carried on in hushed tones, but they were certainly near enough to observe the movements of the appellant and the buyer. Moreover, these prosecution witnesses are all law enforcers and are, therefore, presumed to have regularly performed their duties in the absence of proof to the contrary (People v. Bati, supra citing People v. Agapito, G.R. No. 73786, October 12, 1987) The accused questions the failure of the police officers to secure a warrant considering that Fulgencio himself knew of Sucro's activities even prior to the former's joining the police force. Fulgencio reported Sucro's activities only three days before the incident. As the records reveal, Fulgencio and Sucro had known each other since their childhood years and that after Fulgencio joined the police force, he told the accused-appellant not to sell drugs in their locality. Hence, it is possible that because of this friendship, Fulgencio hesitated to report his childhood friend and merely advised him not to engage in such activity. However, because of reliable information given by some informants that selling was going on everyday, he was constrained to report the matter to the Station Commander. On the other hand, the failure of the police officers to secure a warrant stems from the fact that their knowledge acquired from the surveillance was insufficient to fulfill the requirements for the issuance of a search warrant. What is paramount is that probable cause existed. Thus, it has been held in the case of People v. Lo Ho Wing, et al. (G.R. No. 88017, January 21, 1991): In the instant case, it was firmly established from the factual findings of the trial court that the authorities had reasonable ground to believe that appellant would attempt to bring in contraband and transport it within the country. The belief was based on intelligence reports gathered from surveillance activities on the suspected syndicate, of which appellant was touted to be a member. Aside from this, they were also certain as to the expected date and time of arrival of the accused from China. But such knowledge was clearly insufficient to enable them to fulfill the requirements for the issuance of a search warrant. Still and all, the important thing is that there was probable cause to conduct the warrantless search, which must still be present in such a case. As the Solicitor General has pointed out: There are several instances when a warrantless search and seizure can be effected without necessarily being preceded by an arrest provided the same is effected on the basis of probable cause (e.g. stop and search without warrant at checkpoints). Between warrantless searches and seizures at checkpoints and in the case at bar the latter is more reasonable considering that unlike in the former, it was effected on the basis of probable cause. Under the circumstances (monitoring of transactions) there existed probable cause for the arresting officers, to arrest appellant who was in fact selling marijuana and to seize the contraband.

That searches and seizures must be supported by a valid warrant is not an absolute rule (Manipon, Jr. v. Sandiganbayan, 143 SCRA 267 [1986]). Among the exceptions granted by law is a search incidental to a lawful arrest under Sec. 12, Rule 126 of the Rules on Criminal Procedure, which provides that a person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant. (People v. Castiller, G.R. No. 87783, August 6, 1990) The accused-appellant claims that the arrest having been done without warrant, it follows that the evidence obtained therefrom is inadmissible. As earlier discussed, there is nothing unlawful about the arrest considering its compliance with the requirements of a warrantless arrest. Ergo, the fruits obtained from such lawful arrest are admissible in evidence. Edison Sucro assails the trial court's reliance on the statement of Macabante whose reason for testifying could be merely to escape prosecution. We quote the trial court's finding as to the testimony of Macabante: The non-filing of a complaint against him for possession of marijuana may have been the reason of (sic) his willingness to testify in court against the accused. But this does not necessarily taint the evidence that proceeds from his lips. As explained by Lt. Seraspi, the best sources of information against drug pushers are usually their customers, especially if as in this case, there is no other direct evidence of the selling except the testimony of the buyer. We accept this observation as a realistic appraisal of a situation in which drug users are, and should be employed by law enforcement authorities to bolster the drive against pushers who are the real felons in our society. We have observed the demeanor of the witness in court, and found him to be straightforward, unhesitating, and spontaneous in his declarations, so that we are satisfied as to his intention and disposition to tell the truth (Rollo, p. 40) Time and again it has been held that the findings of the trial court are entitled to great weight and should not be disturbed on appeal unless it is shown that the trial court had overlooked certain facts of weight and importance, it being acknowledged. that the court below, having seen and heard the witnesses during the trial, is in a better position to evaluate their testimonies (People v. Umali, et al., G.R. No. 84450, February 4, 1991 citing People v. Alvarez, 163 SCRA 745 [1988]; People v. Dorado, 30 SCRA 53 [1969]; and People v. Espejo, 36 SCRA 400 [1970]). Furthermore, the testimony of Macabante was corroborated on material points by public officers Fulgencio and Seraspi. There is nothing in the record to suggest that the police officers were compelled by any motive than to accomplish their mission to capture a drug pusher in the execution of the crime, the presumption being that police officers perform their duties regularly in the absence of any evidence to the contrary (Rule 131, Sec. 3(m), Revised Rules on Evidence; People v. Castiller, supra citing People v. Natipravat, 145 SCRA 483 [1986]). The prosecution evidence was further bolstered by the findings of the Forensic Chemist that the items seized were all positive for marijuana. In contrast to the evidence presented by the prosecution, accused-appellant's defense is alibi which is unavailing considering that he was positively identified by Macabante to be the person from whom he bought marijuana. Sucro alleges that he could not have committed the crime since he was with his uncle and cousin distributing handbills for his Auntie's candidacy. The fact, however, remains that it does not preclude the possibility that he was present in the vicinity as established by his admission that he moved a lot and even had the occasion to meet Macabante on the street. It is well-settled that mere denials cannot prevail against the positive identification of the appellant as the seller of the prohibited substances. (People v. Khan, 161 SCRA 406 [1988]; and People v. Paco, 170 SCRA 681 [1989]) Premises considered, this Court is convinced that appellant Edison Sucro had indeed committed the offense charged. The trial court's decision must be upheld. WHEREFORE, the decision appealed from is hereby AFFIRMED.

SO ORDERED.

G.R. No. L-116001

March 14, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. LUISITO GO y KO alias "KING LOUIE", accused-appellant. x---------------------------------------------------------x G.R. No. 123943 March 14, 2001 LUISITO GO y CO, petitioner, vs. COURT OF APPEALS and PEOPLE OF THE PHILIPPINES, respondent. YNARES-SANTIAGO, J .: On October 22, 1992, at around 10:00 o'clock in the evening, SPO1 Mauro Piamonte and SPO3 Candido Liquido, members of the Intelligence and Follow-up Unit of the Calamba Police, went to the police outpost at Crossing, Calamba, Laguna, to follow up an intelligence report that methamphetamine hydrochloride, or shabu, a regulated drug, was being supplied there. Police civilian agent Ronnie Panuringan arrived and reported to them that he saw accused-appellant Luisito Go, also known as "King Louie", enter the Flamingo Disco House with two women. Panuringan said that he spotted a gun tucked in accused-appellant's waist. Together, the three policemen proceeded to the Flamingo, which was located about a hundred meters away from the outpost. When they arrived at the Flamingo, the police officers informed the owner that they were conducting an "Operation Bakal," whereby they search for illegally possessed firearms. The owner allowed them in and told a waiter to accompany them. They went up to the second floor of the disco. The waiter turned on the lights, and the police officers saw accused-appellant and his lady companions seated at a table. They identified themselves and asked accused-appellant to stand up. When the latter did so, the policemen saw the gun tucked in his waist. SPO1 Piamonte asked for the license of the gun, but accused-appellant was unable to produce any. Instead, accused-appellant brought out the driver's license of a certain Tan Antonio Lerios. SPO1 Piamonte confiscated the gun, which was later identified as a 9mm Walther P88, Serial Number 006784, with a magazine containing ten (10) rounds of live ammunition. Accused-appellant was invited to the police precinct for questioning. On the way out of the disco, accused-appellant asked permission to bring his car, which was parked outside. The police officers accompanied accused-appellant to his car, a Honda Civic with license plate number TCM-789. Through the windshield, SPO3 Liquido noticed a Philippine National Police identification card hanging from the rearview mirror. He asked accused-appellant if he was a member of the PNP, and he said no. The police officers asked accused-appellant for his driver's license and the registration papers of the vehicle, but he was unable to produce them. When accusedappellant opened the door, SPO3 Liquido took the ID card and found that the same belonged to SPO4 Zenaida Bagadiong. The police officers saw pieces of glass tooters and tin foils on the backseat and floor of the car. They asked accused-appellant why he had these items, but he did not say anything. Instead, accused-appellant suggested that they talk the matter over, and intimated that he had money. SPO3 Liquido replied that they should talk at the police headquarters. Accused-appellant took out an attach case from the car and opened it. There were two black clutch bags inside. Accused-appellant opened the first bag, which contained shiny white substance wrapped in cellophane. The second bag contained P120,000.00 in cash. The police officers brought accused-appellant to the police station. When they arrived at the precinct, they turned over the attach case together with the two black clutch bags to the investigator. The investigator found eight cellophane bags containing granules suspected to be shabu in one of the clutch bags. When the attach case was opened, the

police officers found that it also contained three glass tooters, tin foils, an improvised burner, magazines and newspapers.1 Consequently, two Informations were filed against accused-appellant before the Regional Trial Court of Calamba, Laguna, Branch 34. The first Information, which was docketed as Criminal Case No. 3308-92-C, charged accusedappellant with violation of Article III of R.A. 6452 (Dangerous Drugs Act), committed as follows: That on or about October 22, 1992 at Brgy. I, Crossing, Municipality of Calamba, province of Laguna, and within the jurisdiction of this Honorable Court, the above-named accused, not being authorized/permitted by law, did then and there wilfully, unlawfully and feloniously have in his possession, control and custody 750 grams of methamphetamine hydrochloride known as "SHABU", a regulated drug, in violation of the above-stated law.2 The other Information, docketed as Criminal Case No. 3309-92-C, charged accused-appellant with violation of P.D. 1866, committed as follows: That on or about October 22, 1992, at Flamingo Beerhouse, Crossing, Municipality of Calamba, Province of Laguna and within the jurisdiction of this Honorable Court, the accused above-named not being licensed or authorized by law, did then and there wilfully, unlawfully and feloniously have in his possession, custody and control one (1) caliber .9mm marked "WALTHER" with serial number 006784 with one (1) magazine loaded with ten (10) live ammunitions of same caliber, in violation of the aforementioned law.3 After a joint trial, the lower court rendered judgment convicting accused-appellant in the two criminal cases, to wit: WHEREFORE, judgment is hereby rendered finding the accused in Criminal Case No. 3308-92-C, to be GUILTY beyond reasonable doubt of having in his possession of 750.39 grams of methamphetamine hydrochloride, a regulated drug. He is hereby sentenced to a penalty of imprisonment of six (6) years and one (1) day to twelve (12) years and a fine of TWELVE THOUSAND (P12,000.00) PESOS; and in Criminal Case No. 3309-92-C, the accused is also found GUILTY beyond reasonable doubt of the crime of Illegal Possession of Firearm, and is hereby sentenced to suffer an imprisonment of reclusion perpetua. Considering that the accused appears to be detained at the Makati Police Station, jailer, Makati Police Station is hereby ordered to commit the accused to the New Bilibid Prison, Bureau of Correction, Muntinlupa, Metro Manila. The bond posted by the accused in Criminal Cases No. 3308-92-C & 3309-92-C, are hereby ordered cancelled.4 Accused-appellant appealed his conviction in Criminal Case No. 3309-92-C directly to this Court, considering that the penalty imposed was reclusion perpetua, which appeal was docketed as G.R. No. 116001. On the other hand, accused-appellant brought his appeal of the judgment in Criminal Case No. 3308-92-C before the Court of Appeals.5 In an Amended Decision dated February 21, 1996, the Court of Appeals affirmed accused-appellant's conviction but modified the penalty imposed by the trial court by sentencing him, in addition to imprisonment of six (6) years and one (1) day to twelve (12) years, to pay a fine of six thousand pesos (P6,000.00), citing Section 8 of R.A. 6425, with subsidiary imprisonment in case of insolvency.6 Hence, this petition for review, docketed as G.R. No. 123943. The two cases were consolidated.7 Accused-appellant assails the validity of his arrest and his subsequent convictions for the two crimes. Both the trial court and the Court of Appeals found that the arrest and subsequent seizure were legal. A review of the records at bar shows no reason to depart therefrom. The constitutional proscription, that no person shall be arrested without any warrant of arrest having been issued prior thereto,8 is not a hard-and-fast rule. The Rules of Court and jurisprudence recognize exceptional cases where an arrest may be effected without a warrant.9 Among these are when, in the presence of a peace officer, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; or when an offense has in fact just been committed, and the arresting officer has personal knowledge of facts indicating that the person to be arrested has committed it.

In the cases at bar, the police saw the gun tucked in appellant's waist when he stood up. The gun was plainly visible. No search was conducted as none was necessary. Accused-appellant could not show any license for the firearm, whether at the time of his arrest or thereafter. Thus, he was in effect committing a crime in the presence of the police officers. No warrant of arrest was necessary in such a situation, it being one of the recognized exceptions under the Rules. As a consequence of appellant's valid warrantless arrest, he may be lawfully searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant, as provided in Rule 126, Section 12. This is a valid search incidental to the lawful arrest.10 The subsequent discovery in his car of drug paraphernalia and the crystalline substance, which was later identified as shabu, though in a distant place from where the illegal possession of firearm was committed, cannot be said to have been made during an illegal search. As such, the seized items do not fall within the exclusionary clause, which states that any evidence obtained in violation of the right against warrantless arrest cannot be used for any purposes in any proceeding.11 Hence, not being fruits of the poisonous tree, so to speak, the objects found at the scene of the crime, such as the firearm, the shabu and the drug paraphernalia, can be used as evidence against appellant. Besides, it has been held that drugs discovered as a result of a consented search is admissible in evidence.12 Under P.D. 1866, the essence of the crime is the accused's lack of license or permit to carry or possess firearm, ammunition, or explosive. Possession by itself is not prohibited by law.13 In prosecutions for illegal possession of firearm, the element of absence of license to possess the firearm may be established through the testimony of or a certification from a representative of the Firearms and Explosives Bureau14of the Philippine National Police (FEB-PNP), attesting that a person is not a licensee of any firearm.15 In this case, a representative of the FEB-PNP testified that accused-appellant was not a holder of any gun license.16 Moreover, a certification17to that effect was presented to corroborate his testimony. These pieces of evidence suffice to establish the second element of the offense of possession of unlicensed firearms.18 However, in a vain attempt to exculpate himself, accused-appellant presented for the first time an alleged firearm license, which was described as "Annex 2" of his petition. Accused-appellant's counsel admitted that said document was not presented below "for some reason."19 Whatever those reasons are, he did not specify. The document, however, is dubious. It is too late in the day for accused-appellant to proffer this very vital piece of evidence which might exculpate him. First, the reception of evidence is best addressed to the trial court because it entails questions of fact. It should be emphasized that this Court is not a trier of facts.20 Second, the document marked as "Annex 2" of the petition in G.R. No. 123943 is not the license referred to, but an order of the trial court resetting the date of arraignment.21 Third, there is attached to the petition a firearm license22 which is a mere photocopy and, as such, cannot be appreciated by this Court. Indeed, considering that this was the one piece of evidence which could spell accusedappellant's acquittal of the unlicensed firearm charge, and assuming that, as shown in the face of the license, it was issued on October 7, 1992, there should be no reason for its non-production during the trial. Fourth, and most importantly, the genuineness of the purported license becomes all the more suspect in view of the Certification issued by the FEO-PNP that accused-appellant was not a licensed firearm holder. Anent the certification issued by the FEO-PNP to the effect that Luisito Go y Ko was not a licensed gun holder, accusedappellant claims that he was not the person alluded to therein because the correct spelling of his middle name is not "Ko" but "Co." Whatever the correct spelling of his name is, the fact remains that he had no license on the day the gun was found in his possession. All that he could present then was a photocopy of his application for gun license,23 which is not the equivalent of a license. Appellant testified that he presented a firearm license to the police,24 but he could not produce that alleged license in court. If appellant was indeed a licensed gun holder and if that license existed on October 22, 1992, he could have easily presented it to the police when he was asked for his papers inside the disco, or if the alleged license was in his car, he could have easily shown it to them when they went to his car. Otherwise, he could have easily asked his lawyer or relative to bring the license to the police precinct when he was being investigated. Despite several opportunities to produce a license, he failed to do so. In fact, during trial, he never presented any such license. And on appeal, he could only submit for the first time and for unknown reasons an alleged photocopy of a purported license. The only plausible conclusion that can be drawn is that there was no such license in the first place. Hence, his guilt of illegal possession of firearm was duly established. Accused-appellant's guilt for illegal possession of shabu has likewise been proven beyond reasonable doubt. The white crystalline substance found in his possession, upon laboratory examination, were positively identified as methamphetamine hydrochloride or shabu, a regulated drug.25 The bulk of accused-appellant's defense revolves around the factual findings of the trial court. It should be recalled that factual findings of the trial court, if supported by evidence on record, and particularly when affirmed by the appellate

court, are binding on this Court.26 As discussed above, the records substantiate the trial court's and the appellate court's findings as to accused-appellant's culpability. There is no reason to depart from these findings as no significant facts and circumstances were shown to have been overlooked or disregarded which, if considered, would have altered the outcome of the case.27 Moreover, questions as to credibility of witness are matters best left to the appreciation of the trial court because of its unique opportunity of having observed that elusive and incommunicable evidence of the witness' deportment on the stand while testifying, which opportunity is denied to the reviewing tribunal.28 In the case at bar, the trial court found: The narration of the incident by the police is far more worthy of belief coming as it does from law enforcers who are presumed to have regularly performed their duties and were not demonstrated to have been unduly biased against the accused.29 Similarly, the Court of Appeals held that: (T)he findings of fact of the trial court are generally respected by the appellate court, unless they are found to be clearly biased or arbitrary. We do not find any in these cases.30 The crime of illegal possession of firearm, committed in 1992, regardless of whether the firearm is low powered or high powered, was punished with the penalty of reclusion perpetua to death, as provided in P.D. 1866. However, under R.A. No. 8294, which took effect on July 6, 1997,31 the penalty was lowered to prision correcional in its maximum period and a fine of P30,000.00, if the firearm32 is classified as low powered. In this case, the unlicensed firearm found in appellant's possession was a 9mm Walther pistol, which under the amendatory law, is considered as low powered. Inasmuch as the new law imposes a reduced penalty and is, thus, more favorable to accused-appellant, the same may be given retroactive effect.33 Therefore, accused-appellant is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. On the other hand, the crime of illegal possession of regulated drug, under the law in force at the time of the commission of the offense in this case, was punished by imprisonment of from six (6) years and one (1) day to twelve (12) years and a fine ranging from P6,000.00 to P12,000.00,34 regardless of the amount of drugs involved. Hence, accused-appellant is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. WHEREFORE, the decision of the trial court finding accused-appellant guilty beyond reasonable doubt of illegal possession of firearm is AFFIRMED, with the MODIFICATION that he is sentenced to an indeterminate penalty of two (2) years, four (4) months and one (1) day of prision correccional, as minimum, to four (4) years, two (2) months and one (1) day of prision correccional, as maximum, and a fine of P30,000.00. The decision of the trial court finding accusedappellant guilty beyond reasonable doubt of illegal possession of 750.39 grams of shabu and drug paraphernalia, is likewise AFFIRMED with the MODIFICATION that he is sentenced to an indeterminate penalty of six (6) years and one (1) day, as minimum, to twelve (12) years, as maximum, and to pay a fine of P12,000.00. The shabu and subject drug paraphernalia seized from appellant shall be destroyed as provided by law. SO ORDERED.

G.R. No. 95847-48. March 10, 1993. PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GABRIEL GERENTE y BULLO, accused-appellant. 1. REMEDIAL LAW; CRIMINAL PROCEDURE; ARREST WITHOUT WARRANT; LAWFUL WHEN ARRESTING OFFICER HAS PERSONAL KNOWLEDGE THAT THE PERSON TO BE ARRESTED HAS COMMITTED THE CRIME; CASE AT BAR. The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. 2. ID.; ID.; SEARCH AND SEIZURE; VALID EVEN WITHOUT A WARRANT WHEN MADE AS AN INCIDENT TO LAWFUL ARREST; RATIONALE. The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "Section 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found his person, or within his immediate control may be seized." 3. CRIMINAL LAW; CONSPIRACY; LIABILITY OF CONSPIRATORS; RULE; CASE AT BAR. There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. what Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. 4. ID.; CIVIL INDEMNITY FOR DEATH; INCREASED TO P50,000.00. The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. DECISION GRIO-AQUINO, J p: This is an appeal from the decision of the Regional Trial Court of Valenzuela, Metro Manila, Branch 172, which found the appellant guilty of Violation of Section 8 of Republic Act 6425 (Dangerous Drugs Act of 1972) and sentenced him to

suffer the penalty of imprisonment for a term of twelve (12) years and one (1) day, as minimum, to twenty (20) years, as maximum; and also found him guilty of Murder for which crime he was sentenced to suffer the penalty of reclusion perpetua. The dispositive portion of the appealed decision reads: "WHEREFORE, in view of the foregoing the Court finds the accused Gabriel Gerente in Criminal Case No. 10255-V-90 guilty beyond reasonable doubt of Violation of Section 8 of R.A. 6425 and hereby sentences him to suffer the penalty of imprisonment of twelve years and one day as minimum to twenty years as maximum, and a fine of twelve thousand, without subsidiary imprisonment in case of insolvency, and to pay the costs. "In Criminal Case No. 10256-V-90, the Court finds the accused Gabriel Gerente guilty beyond reasonable doubt of the crime of Murder, and there by (sic) no aggravating circumstances nor mitigating circumstances, is hereby sentenced to suffer the penalty of reclusion perpetua; to indemnify the heirs of the victim in the sum of P30,000.00, and in the amount of P17,609.00 as funeral expenses, without subsidiary imprisonment in case of insolvency, and to pay the costs. The accused Gabriel Gerente shall be credited with the full term of his preventive imprisonment." (p. 25, Rollo.) Appellant Gabriel Gerente y Bullo was charged with Violation of Section 8, Art. II of R.A. 6425, which was docketed as Criminal Case No. 10255-V-90 of the Regional Trial Court of Valenzuela, Metro Manila. The Information reads: "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without justification, did then and there wilfully, unlawfully and feloniously have in his possession and control dried flowering tops wrapped in foil with markings and place in a transparent plastic bag which are considered prohibited drugs." (p. 2, Rollo.) The same accused, together with Totoy and Fredo Echigoren who are both at large, was charged with Murder in Criminal Case No. 10256-V-90 in an information of the same date and signed by the same Assistant Provincial Prosecutor, as follows: "That on or about the 30th day of April, 1990, in the municipality of Valenzuela, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused together with two (2) others who are still at large and against whom the preliminary investigation has not yet been terminated by the Office of the Provincial Prosecutor of Bulacan, conspiring, confederating together and mutually helping one another, armed with a piece of wood and hallow (sic) block and with intent to kill one Clarito B. Blace, did then and there wilfully, unlawfully and feloniously, with evident premeditation and treachery, attack, assault and hit with the said piece of wood and hollow block the said Clarito B. Blace, hitting the latter on the different parts of his body, thereby inflicting serious physical injuries which directly caused the death of the said victim." (p. 3, Rollo.) Edna Edwina Reyes testified that at about 7:00 a.m. of April 30, 1990, appellant Gabriel Gerente, together with Fredo Echigoren and Totoy Echigoren, started drinking liquor and smoking marijuana in the house of the appellant which is about six (6) meters away from the house of the prosecution witness who was in her house on that day. She overheard the three men talking about their intention to kill Clarito Blace. She testified that she heard Fredo Echigoren saying, "Gabriel, papatayin natin si Clarito Blace," and Totoy Echigoren allegedly seconded Fredo's suggestion saying: "Papatayin natin 'yan mamaya." Appellant allegedly agreed: "Sigue, papatayin natin mamaya." (pp. 3-4, tsn, August 24, 1990.) Fredo and Totoy Echigoren and Gerente carried out their plan to kill Clarito Blace at about 2:00 p.m. of the same day. The prosecution witness, Edna Edwina Reyes, testified that she witnessed the killing. Fredo Echigoren struck the first blow against Clarito Blace, followed by Totoy Echigoren and Gabriel Gerente who hit him twice with a piece of wood in the head and when he fell, Totoy Echigoren dropped a hollow block on the victim's head. Thereafter, the three men dragged Blace to a place behind the house of Gerente. At about 4:00 p.m. of the same day, Patrolman Jaime Urrutia of the Valenzuela Police Station received a report from the Palo Police Detachment about a mauling incident. He went to the Valenzuela District Hospital where the victim was brought. He was informed by the hospital officials that the victim died on arrival. The cause of death was massive fracture of the skull caused by a hard and heavy object. Right away, Patrolman Urrutia, together with Police Corporal Romeo Lima and Patrolman Alex Umali, proceeded to Paseo de Blas where the mauling incident took place. There they found a piece of wood with blood stains, a hollow block and two roaches of marijuana. They were informed by the

prosecution witness, Edna Edwina Reyes, that she saw the killing and she pointed to Gabriel Gerente as one of the three men who killed Clarito. The policemen proceeded to the house of the appellant who was then sleeping. They told him to come out of the house and they introduced themselves as policemen. Patrolman Urrutia frisked appellant and found a coin purse in his pocket which contained dried leaves wrapped in cigarette foil. The dried leaves were sent to the National Bureau of Investigation for examination. The Forensic Chemist found them to be marijuana. Only the appellant, Gabriel Gerente, was apprehended by the police. The other suspects, Fredo and Totoy Echigoren, are still at large. On May 2, 1990, two separate informations were filed by Assistant Provincial Prosecutor Benjamin Caraig against him for Violation of Section 8, Art. II, of R.A. 6425, and for Murder. When arraigned on May 16, 1990, the appellant pleaded not guilty to both charges. A joint trial of the two cases was held. On September 24, 1990, the trial court rendered a decision convicting him of Violation of Section 8 of R.A. 6425 and of Murder. In this appeal of the appellant, the following errors are ascribed to the trial court: 1. the court a quo gravely erred in admitting the marijuana leaves adduced in evidence by the prosecution; and 2. the court a quo gravely erred in convicting the accused-appellant of the crimes charged despite the absence of evidence required to prove his guilt beyond reasonable doubt. The appellant contends that the trial court erred in admitting the marijuana leaves as evidence in violation of his constitutional right not to be subjected to illegal search and seizure, for the dried marijuana leaves were seized from him in the course of a warrantless arrest by the police officers. We do not agree. The search of appellant's person and the seizure of the marijuana leaves in his possession were valid because they were incident to a lawful warrantless arrest. Paragraphs (a) and (b), Section 5, Rule 113 of the Revised Rules of Court provide: 'SECTION 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: "(a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;" "(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; . . .' The policemen arrested Gerente only some three (3) hours after Gerente and his companions had killed Blace. They saw Blace dead in the hospital and when they inspected the scene of the crime, they found the instruments of death: a piece of wood and a concrete hollow block which the killers had used to bludgeon him to death. The eye-witness, Edna Edwina Reyes, reported the happening to the policemen and pinpointed her neighbor, Gerente, as one of the killers. Under those circumstances, since the policemen had personal knowledge of the violent death of Blace and of facts indicating that Gerente and two others had killed him, they could lawfully arrest Gerente without a warrant. If they had postponed his arrest until they could obtain a warrant, he would have fled the law as his two companions did. In Umil vs. Ramos, 187 SCRA 311, the arrest of the accused without a warrant was effected one (1) day after he had shot to death two Capcom soldiers. The arrest was held lawful by this Court upon the rationale stated by us in People vs. Malasugui, 63 Phil. 221, 228, thus:

"To hold that no criminal can, in any case, be arrested and searched for the evidence and tokens of his crime without a warrant, would be to leave society, to a large extent, at the mercy of the shrewdest, the most expert, and the most depraved of criminals, facilitating their escape in many instances." The search conducted on Gerente's person was likewise lawful because it was made as an incident to a valid arrest. This is in accordance with Section 12, Rule 126 of the Revised Rules of Court which provides: "SECTION 12. Search incident to lawful arrest. A person lawfully arrested may be searched for dangerous weapons or anything which may be used as proof of the commission of an offense, without a search warrant." The frisk and search of appellant's person upon his arrest was a permissible precautionary measure of arresting officers to protect themselves, for the person who is about to be arrested may be armed and might attack them unless he is first disarmed. In Adams vs. Williams, 47 U.S. 143, cited in Justice Isagani A. Cruz's Constitutional Law, 1991 Edition, p. 150, it was ruled that "the individual being arrested may be frisked for concealed weapons that may be used against the arresting officer and all unlawful articles found in his person, or within his immediate control may be seized." There is no merit in appellant's allegation that the trial court erred in convicting him of having conspired and cooperated with Fredo and Totoy Echigoren to kill Blace despite the testimony of Dr. Valentin Bernales that the fracture on the back of the victim's skull could have been inflicted by one person only. What Dr. Bernales stated was a mere possibility that only one person dropped the concrete hollow block on the head of the victim, smashing it. That circumstance, even if true, does not absolve the other two co-conspirators in the murder of Blace for when there is a conspiracy to commit a crime, the act of one conspirator is the act of all. The conspiracy was proven by the eyewitness-testimony of Edna Edwina Reyes, that she overheard the appellant and his companions conspire to kill Blace, that acting in concert, they attacked their victim with a piece of wood and a hollow block and caused his death. "When there is no evidence indicating that the principal witness for the prosecution was moved by improper motive, the presumption is that he was not so moved and his testimony is entitled to full faith and credit" (People vs. Belibet, 199 SCRA 587, 588). Hence, the trial court did not err in giving full credit to Edna Reyes' testimony. Appellant's failure to escape (because he was very drunk) is no indicium of his innocence. The Solicitor General correctly pointed out in the appellee's brief that the award of P30,000.00 as civil indemnity for the death of Clarito Blace should be increased to P50,000.00 in accordance with our ruling in People vs. Sison, 189 SCRA 643. WHEREFORE, the appealed decision is hereby AFFIRMED, with modification of the civil indemnity awarded to the heirs of the victim, Clarito Blace, which is hereby increased to P50,000.00. SO ORDERED.

G.R. Nos. 113511-12 July 11, 1997 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO SINOC y SUMAYLO, accused-appellant. NARVASA, C.J.: In a decision handed down on October 7, 1993 by Branch 30 of the Regional Trial Court of Surigao City, Danilo Sinoc was found guilty beyond reasonable doubt in two cases jointly tried: 1 one, of the special complex crime of kidnapping with murder (under Article 267 in relation to Articles 248 2 and 48 3 of the Revised Penal Code) in Criminal Case No. 3564; and the other, of the complex crime of kidnapping with frustrated murder (under Articles 267, 248, 6, 4 and 48 of the same Code) in Criminal Case No. 3565. In each case, the penalty of reclusion perpetua was imposed on him. 5 The amended informations under which Sinoc was tried and convicted, both dated January 23, 1992, included five (5) other accused, namely: Vicente Salon @ "Dodong," Benjamin Espinosa @ "Benji," Jaime Jornales @ "James," Victorino Delegencia @ "Jun-Gren," and one Roger Doe @ "Ram" (at-large). 6 However, only Sinoc and Vicente Salon were arraigned, on July 14, 1992, the other accused being then at large, as they still appear to be to this day. Assisted by their respective counsel, both Sinoc and Salon entered pleas of not guilty and were thereafter jointly tried. The joint trial resulted in Salon's acquittal in both cases. The Court agreed with him that "none of the witnesses presented by the prosecution remotely implicate . . (him in) the crimes charged," and that "(i)ndeed, the only piece of evidence pointing to . . (him [Salon]) as the mastermind is contained in the affidavit of confession of accused Danilo Sinoc;" hence, conspiracy not having been proved, the case against Salon "has to be dismissed." Only Sinoc, therefore, is concerned in the appeal at bar. Respecting the essential facts constituting the corpus delicti, there appears to be no serious dispute. It appears that on September 20, 1991, at about 6 o'clock in the morning, Isidoro Viacrusis, manager of Taganito Mining Corporation, was motoring from the company compound (at Taganito, Claver, Surigao del Norte) to Surigao City. He was riding on a company vehicle, a Mitsubishi Pajero (with Plate No. DFX-397), driven by Tarcisio Guijapon. As Viacrusis and Guijapon were approaching the public cemetery of Claver, they were stopped by several armed men. The latter, identifying themselves as members of the New People's Army (NPA), boarded the Pajero and ordered Guijapon to proceed. When they reached Barobo, Surigao del Norte, the armed men ordered Viacrusis and Guijapon to alight, led them, their hands bound behind their back, to a coconut grove some six meters from the road, and after making them lie face down on the ground, shot them several times. Viacrusis miraculously survived. The driver, Guijapon, was not as lucky; he died on the spot. These facts are set forth in, among others, a sworn statement given to the police by Sinoc, infra, and an affidavit executed and sworn to by Viacrusis on October 17, 1991, about a month later. 7 In that affidavit, Viacrusis described the armed men who had kidnapped and shot him and Guijapon. The only malefactor he was able to identify by name, however, was Danilo Sinoc who, he said, had "curly hair, (was) known as 'Colot' (Danilo Sinoc), (and was known to) driver Tarcing . . ." Two prosecution witnesses gave germane testimony at the trial of the consolidated cases: Marlyn Legaspi, a resident of San Vicente, Barobo, Surigao del Sur; and Barangay Captain Terencio Jamero, also of Barangay San Vicente.

Marlyn testified that she was startled by the sound of gunshots that morning of September 20, 1991. She ran towards the direction of the gunfire and as she neared the place, heard the moaning of a man. She moved quickly to the highway and saw a blue "Pajero" parked at the barangay road, its engine idling; and moments later, she saw the same vehicle running fast towards San Francisco, Agusan del Sur. She lost no time in reporting the incident to Barangay Councilor Terencio Jamero. Jamero testified that on receiving Marlyn's report, he and another Councilor, Alberto Saliling, at once proceeded to the place indicated. There they came upon the slain driver, and Isidoro Viacrusis, lying on the ground, sorely wounded, crying out for help. With the assistance of policemen of Barobo, they brought Viacrusis to the Agusan del Sur Provincial Hospital at Patin-ay. Timely medical attention enabled Viacrusis to recover from his grievous wounds. The evidence of the prosecution further establishes that in the morning of the following day, September 21, 1991, at about 7 o'clock, a secret informant (known as a "civilian asset") named Boyet reported to the Police Station at Monkayo, Davao del Norte that the stolen ("carnapped") "Pajero" was parked behind the apartment of a certain Paulino Overa at the Bliss Housing Project at Poblacion, Monkayo. On instructions of the Station Commander, a police team 8 went to the place. They saw the "Pajero" and, their initial inquiries having yielded the information that the man who had brought it there would return that morning, posted themselves in such a manner as to keep it in view. Some three hours later, at about 10:30 o'clock, they saw a man approach the "Pajero" who, on seeing them, tried to run away. They stopped him. They found out that the man, identified as Danilo Sinoc, of Surigao del Norte, 9 had the key of the "Pajero," and was acting under instructions of certain companions who were waiting for him at the Star Lodge at Tagum, Davao del Norte. Riding on the recovered "Pajero," the police officers brought Sinoc to the Star Lodge only to discover that his companions were no longer there. They later turned over Sinoc to the 459(th) Mobile Force, together with the "Pajero." Four months afterwards, in the afternoon of January 21, 1993, SPO1 Roger A. Basadre and two other officers (of the CIS) brought Danilo Sinoc to the Public Attorneys' Office at Curato Street, Butuan City. They asked one of the attorneys there, Atty. Alfredo Jalad, for permission to take Sinoc's statement in writing in his office. Sinoc asked Jalad to assist him because he wished to make an "affidavit of confession." Atty. Jalad told Sinoc that he had the right to choose his own counsel, and to remain silent. Sinoc said he wanted to make the affidavit nonetheless, and be assisted by Jalad in doing so. The latter then had Sinoc narrate the occurrence in question in "Cebuano/Visayan," a dialect with which Sinoc was familiar. That done, Jalad asked Sinoc if the CIS had promised him anything for the affidavit he would execute. Sinoc said no. Only then did the CIS officers commence to take Sinoc's statement, typing their questions and Sinoc's answers as well as the initial apprisal of his constitutional rights on a typewriter in Atty. Jalad's office. In his sworn statement, 10 Sinoc declared that he knew the victims, Isidoro Viacrusis and Tarcisio Guijapon because he was "formerly working at Taganito Mining Company" (TAMICO); that in June, 1991, he learned that Benjamin Espinosa (@ Benji), Jaime Jornales (@ James), Victorino Delegencia (@ Jun-Gren), and a certain "Ram" had been monitoring the activities of TAMICO Manager Viacrusis whom they planned to kidnap and rob of his "Pajero," and make it appear to be an act of the NPA; that the criminal undertaking was planned by a certain Vicente Salon (@ Dodong), who made available the needed funds and two (2) hand guns; that in September, 1991, at a meeting of the group at the boarding house of "Jun-Gren" to which he (Sinoc) was invited. Sinoc was offered P20,000.00 to join in the "kidnapping and carnapping" operation; that he agreed "because of poverty;" that in the morning of September 20, 1991, at about 6:30 o'clock, he, "Ram" and Benjamin Espinosa stopped the "Pajero" driven by Tarcisio Guijapon in which Viacrusis was riding, brandishing two .38 caliber revolvers, and a piece of wood shaped like a rifle; that they boarded the vehicle, identifying themselves as NPA (soldiers of the New People's Army) and had the driver proceed towards Surigao City; that at the bridge of Tres de Mayor, they had the "Pajero" stop to pick up two other companions, "James" (Jaime Jornales) and "Jun-gren" (Victor Delegencia); that "Ram" took over the wheel and drove towards Butuan City; that at San Vicente, Barobo "Ram" turned into a feeder road and stopped about seven (7) meters from the highway; that there, Viacrusis and Guijapon, whose hands had been tied behind their back, were made to get down; that "James" Jornales shot Viacrusis four times after which "Jun-gren" Delegencia, Jr. fired at Guijapon four times, too; that when Sinoc remonstrated at the shootings, he was told it was on Dodong Salon's orders; that the malefactors then proceeded to the "Bliss" Housing Project at Monkayo where they left the "Pajero," this being the place where the mastermind, Vicente Salon, was supposed to get the vehicle and pay Sinoc the promised sum of P20,000.00; that they then all went to Tagum; that on the following day, Sinoc was instructed by Jungren and James to return to Monkayo with the key of the "Pajero" and deliver it to "Ram," and that when he arrived at the place at about 9 o'clock in the morning, he was apprehended by soldiers and brought to the "459(th) PNP Mobile Company."

During the entire period of Sinoc's interrogation, which commenced at about 3:00 P.M., Atty. Jalad remained seated beside him; and at its conclusion, Jalad read to Sinoc the contents of his statement from beginning to end. The statement was thereafter signed by Sinoc and by Jalad, the latter being described as "witness to signature. " 11 Sinoc was next brought to the home of Butuan City Prosecutor Ernesto M. Brocoy so that he might take oath on his statement. This was at about 7:00 P.M. After going over the statement, City Fiscal Brocoy told Sinoc that it was "very damaging," briefly discussing the contents thereof in Cebuano. The latter stood by his answers, however, averring that they had been voluntarily given. Evidently satisfied of the authenticity and voluntariness of the statement, Brocoy administered the oath to Sinoc, and signed the certification typed at the left hand margin of page 4 thereof, reading: "SUBSCRIBED AND SWORN to before me this 21st day of January 1992, at Butuan City, Philippines. I hereby certify that I personally examined the herein affiant and that I am satisfied that he voluntarily executed and understood his statement." He also initialed every page of the statement. 12 While under detention at the Provincial Jail, awaiting trial, Sinoc wrote two (2) letters to the Trial Judge dated June and July, 1992, in both of which he asked that he be transferred to the City Jail because he had heard that Vicente Salon, who had been arrested on the strength of his sworn statement, had made plans to kill him. He sent the Judge a third letter dated August 11, 1993, consisting of four (4) pages which is described by His Honor as "substantially a repetition of the contents of his affidavit of confession." All the letters were handwritten in block letters in the Cebuano dialect. 13 Sinoc proffered the defense of alibi. His claim, as summarized by his counsel, was that "on September 19, 1991, he was in Sibagat, Agusan del Sur together with his wife and prepared on that early morning to sell tableya (native chocolate) in Tagum, Davao del Norte. On the same day they reached Tagum and they sold tableya and on the same day there were not able to sell the tableya; on September 20, 1991 they were again selling tableya in Tagum, Davao del Norte. It was while in Tagum that . . (they met) a certain Darves, they did not know exactly the name, he offered to them the money to accompany the said driver of Darves who is name(d) Ram. He was offered . . money to accompany this Ram in prior (sic) to allegedly get the Pajero vehicle from Moncayo together with Ram, and while in Moncayo he was first apprehended by the police and detained at Moncayo, first . . (by) the 459 Mobile Force of . . Moncayo and on January 14, 1992 to January 24, 1992 he was detained by the CIS authorities in Butuan City." Elaborating, Sinoc testified that he saw Darves with three companions at "a certain restaurant in Tagum;" that Darves introduced himself, and offered to give him P1,000.00) if he would accompany his driver to get a vehicle at Moncayo; that he agreed, and at 6 o'clock in the morning of September 21, 1991 he went to the Star Lodge where Darves was staying; that there, he was introduced to the latter's driver, Ram, given P1,000.00, and told to go with Ram; and that he went out of the Star Lodge, gave his wife P800.00, and then went with Ram to Moncayo on board a bus. In Moncayo, they went to where the Pajero was parked. Sinoc went towards the vehicle. Ram lagged behind, having paused to buy some cigarettes. When Sinoc reached the Pajero, five persons suddenly pointed guns at him, searched him, and found on him the key to the "Pajero" which Darves had given to him. The five persons, who were led by Sgt. Michael Aringgo of the PNP, brought him to the Moncayo police station where they investigated him without informing him of his constitutional rights. In the afternoon of that day, September 21, 1991, he was surrendered to the 459th Mobile Force Company which detained him until January 14, 1992. On this date he was taken by CIS personnel and brought to the CIS Compound at Butuan City, at which place he was confined up to January 24, 1992, and subjected to interrogation without being informed that he had a right to remain silent. He was told, however, that he had the right to counsel, but although he told the investigators that his lawyer was Atty. Gavino Samontina, they never called the latter. The investigators wished him to sign an affidavit. When he refused, they maltreated him by repeatedly submerging his head in a toilet bowl full of excrement, as well as by tying him on a bed, raising the bed on one end so that his feet were up and his head down, and keeping him in that position for hours. On January 20, 1992, his wife and Efren Dak-ang came to see him at the CIS Compound. He talked to them and revealed what was being done to him while under investigation.

On January 21, 1992, after having been interrogated the whole night, he finally agreed to sign the affidavit because the CIS officers told him, "(W)e will kill you or salvage you." In fact, the night before, police officers had brought him to an uninhabited place near the bridge and, with guns pointed at his head, commanded him to run. He refused, of course. So, in the afternoon of that day, at around 4 o'clock, he was brought to the office of Public Attorney Jalad, where the police investigators "hurriedly typed" his affidavit and made him sign it. He denied that Atty. Jalad informed him of his constitutional rights. He asserted that when he told Jalad he had his own lawyer, Jalad merely remarked, "Never mind, all attorneys are just the same as long as it is attorney." He was next brought to Fiscal Brocoy who, without talking to him, "right away signed that document" (his confession). Sinoc also explained how he had come to write the letter of August 11, 1992 to the Judge some seven months after his confession. That letter it will be recalled and as is evident from a comparison of both documents was described by the latter as "substantially a repetition of the contents of his affidavit of confession," supra. 14 He said: "(T)here were persons who visited me while at the Provincial Jail and told me to accept the crime . . because if I will not accept the crime my wife and children (and) my parents, they will liquidate all of them . . ." Sinoc's wife, Jovita, testified for the defense, and sought to corroborate his testimony. She affirmed that she had seen her husband at the CIS on September 20, 1992, at about 8:30 in the evening, and he had told her then to "keep . . silent, not to tell anybody that he will be accompan(ied) by the CIS." Efren Dak-ang also gave corroborating testimony. For some undisclosed reason, the surviving victim, Isidoro Viacrusis, did not testify; this, despite the fiscal's assurances to the Trial Judge that he was "very interested" in giving evidence. Obviously because of Viacrusis' failure to testify, his affidavit of October 17, 1991 was not formally offered, being obviously hearsay, although it is attached to the record. Be this as it may, the Trial Court was satisfied that the evidence actually presented by the Government sufficed to establish Sinoc's guilt beyond reasonable doubt of the two felonies with which he stood charged. Sinoc has taken an appeal to this Court and ascribes to the Trial Court the following errors: (1) convicting him of the offenses charged although conspiracy had not been independently proven to exist among him and the other persons named in the indictment: (2) not rejecting the evidence obtained after he had been "arrested without any warrant of arrest," and (3) not rejecting his confession after he had been illegally arrested and had thereafter been "under custodial investigation . . without a counsel of choice" from September 21, 1991 to January 20, 1992, first by the Monkayo 459th Mobile Force, and later by the C.I.S., Butuan City. As regards Sinoc's claim of illegal arrest, the law provides that an arrest without warrant may be licitly effected by a peace officer, inter alia, "When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it." 15 There is no question that the police officers in this case were aware that an offense had just been committed: i.e., that some twelve hours earlier, a "Pajero" belonging to a private company had been stolen ("carnapped") and its driver and passenger shot, the former having died and the latter being on the verge of death. Nor is there any doubt that an informer ("asset") had reported that the stolen "Pajero" was at the Bliss Housing Project at Moncayo. It was precisely to recover the "Pajero" that a team composed of SPO1 Michael Aringo and "joint elements of 459 PNP MFC and Monkayo Police Stn led by Insptr Eden T. Ugale," went to that place and, on taking custody of the "Pajero," forthwith dispatched a radio message to "Higher Headquarters" advising of that fact. 16 There is no question either that when SPO1 Aringo and his companions reached the place where the "Pajero" was parked, they were told by Paulino Overa, owner of the apartment behind which the vehicle was parked, that the man who had brought the "Pajero" would be back by 12:00 noon; that the person thus described did in fact show up at about 10:00 A.M., and was immediately identified by Overa as "the one who rode on that car 'pajero;'" 17 just as there is no question that when the police officers accosted him, Sinoc had the key to the stolen "Pajero" and was in the act of moving toward it admittedly to take possession of it (after having arrived by bus from Tagum together with another suspect, "Ram"). Sinoc's link to the stolen vehicle (and hence to the kidnapping and killing accompanying its asportation) was thus palpable.

The foregoing circumstances left the police officers no alternative save to arrest Sinoc and take possession of the "Pajero." His arrest without warrant was justified; indeed, it was in the premises the officers' clear duty to apprehend him; their omission to do so would have been inexcusable. Sinoc's assault against the propriety of his interrogation after his warrantless arrest, because conducted without advice to him of his constitutional rights, is pointless. It is true that, as candidly admitted by the arresting officers, their initial interrogation of Sinoc was made without his first being told of his corresponding rights. This is inconsequential, for the prosecution never attempted to prove what he might have said on that occasion. The confession made by him some time afterwards at the Public Attorneys' Office at Butuan City is altogether a different matter, however. The record adequately shows it to have been executed voluntarily and under applicable safeguards, apart from being confirmed by, or consistent with, other evidence. Sinoc does not dispute that he was taken to the Public Attorney's Office; that he spoke to Atty. Alfredo Jalad and it was in the latter's office that his confession was prepared by the CIS investigator. Nor does he deny that he was then brought to the home of City Prosecutor Ernesto M. Brocoy who certified that the confession had been subscribed and sworn to before him and that he was satisfied that Sinoc had voluntarily executed and understood his statement. Sinoc nonetheless claims that he was under intimidation at that time and never advised of his constitutional rights. After carefully considering the evidence, this Court is convinced that the Trial Judge was correct in accepting the account of the execution of Sinoc's confession (Exhs. K, K-1 to K-5) narrated by Public Atty. Alfredo Jalad and City Prosecutor Ernesto Brocoy, to the effect that the confession was voluntarily given after he had been duly informed of his constitutional rights. No reason whatever is discernible in the record for these Government officials to give false evidence against Sinoc, or testify otherwise than to the truth. Sinoc's confession of January 21, 1992 is confirmed by the letter he admittedly wrote to the Trial Judge more than a year later, on August 11, 1993, 18 the contents of which are, as observed by the Trial Judge, substantially identical with those of the confession. In said letter, in which he narrates in no little detail the same story contained in his confession, he apologizes for "bothering you again at this time" (obviously referring to his prior letters to the Judge of June and July 1992), and gives his reasons for writing the latest letter: to ask for the Judge's assistance and take account of his allegation that his agreement with his co-accused was only to stop the "Pajero," that it was poverty that impelled him to join the plotters (Vicente Salon, et al.); to see that Tarcisio Guijapon and Viacrucis be given justice; and to plead that the Judge take pity on him, and not give him too heavy a penalty. The confession is also consistent with Sinoc's testimony at his trial in which he admitted that he had indeed traveled from Tagum to Moncayo where he was arrested; and that he had made the trip, together with his co-accused, "Ram," precisely to get the stolen "Pajero" the key of which he had on his person at the time. It contains details (e.g., the use of two (2) hand guns and a wooden rifle, the bringing of the Pajero from the scene of the killing to Moncayo, the identities of the individual malefactors who shot the victims) which it is improbable to think were conjured out of thin air by the police investigators or deduced from other evidence. The confession is consistent, too, with the other proofs, particularly the testimony of Marlyn Legaspi and Barangay Councilor Jamero as regards the time and place of the shooting of the hapless victims. In any event, the Trial Judge appears to have carefully assessed the demeanor of the witnesses for the prosecution and those for the defense, in relation to the documents on record, and on this basis and from his vantage point, found that the prosecution's proofs were more credible than the defense, and that their combined weight established beyond reasonable doubt the appellant's culpable participation in the crimes charged. It must additionally be pointed out that apart from Sinoc's protestations that his extrajudicial confession was the result of torture and threats, no competent evidence exists on record to substantiate that claim. He made no such claim to either Public Attorney Alfredo Jalad or City Prosecutor Ernesto Brocoy although there is absolutely nothing in the record to indicate any cause for him to distrust either government officer, much less believe they were in conspiracy with the police officers to concoct a case against him. In fact, although he professes to have disclosed his supposed maltreatment to his wife when she visited him at the place of his detention, the latter made no mention of it in her testimony, nor did she ever attempt to have him medically examined to confirm such a revelation, if it had been made. Moreover, the counsel he said he wanted to represent him during his interrogation at Public Attorney Jalad's office, Atty. Gavino Samontina, was never presented to confirm his statement.

While the evidence does show that Sinoc became embroiled in a criminal conspiracy 19 he agreed (out of poverty, he says) to join in a crime being planned by certain men named by him and decided to commit it with them the agreement, as far as he was concerned, was to waylay Viacrusis, the Manager of the Tagum Mining Company, and rob him of his "Pajero," for which his share would be P20,000.00; but it did not include the shooting of Viacrusis or any one else. In fact, he raised a protest when Viacrusis and Guijapon were shot. In other words, as far as Sinoc understood it, and as far as may in fact be deduced from the evidence, the plan was not so much to capture Viacrusis and deprive him of liberty, even less to assassinate him, but to steal his "Pajero" by violent means. The "kidnapping" was not the principal objective; it was merely incidental to the forcible taking of the vehicle. Unfortunately, by reason or on the occasion of the seizure of the "Pajero" and (as far as the proofs demonstrate) without fore-knowledge on Sinoc's part its driver was killed, and the lone passenger seriously injured. There was thus no kidnapping as the term is understood in Article 267 of the Revised Penal Code the essential object of which is to "kidnap or detain another, or in any other manner deprive him of his liberty." The idea of "kidnapping" in this case appears to have been the result of the continuous but uninformed use of that term by the peace officers involved in the investigation, carelessly carried over into the indictments and the record of the trial, and even accepted by His Honor. 20 The offense actually committed in Criminal Case No. 3564 where the killing of Tarcesio Guijapon accompanied the taking of the "Pajero" is that defined and penalized by Article 294 of the Criminal Code, 21 viz.: Art. 294. Robbery with violence against or intimidation of persons-Penalties. Any person guilty of robbery with the use of violence against any person shall suffer: 1. The penalty of reclusion perpetua to death, when by reason or on occasion of the robbery, the crime of homicide shall have been committed, or when the robbery shall have been accompanied by rape or intentional mutilation or arson. xxx xxx xxx It is germane to observe that even if the intent to deprive of liberty were as important or primordial an objective as the asportation of the "Pajero," the kidnapping would be absorbed in the robbery with homicide; 22 and that the term, "homicide," is used in the quoted article in the generic sense i.e., as also including murder, the nature of the offense not being altered by the treacherous character, or the number, of the killings in connection with the robbery. 23 On the other hand, the wrongful acts actually proven to have been committed by the defendants in Criminal Case No. 3565 are: (1) robbery, of course, as above described, and (2) frustrated murder on the occasion thereof gunshot wounds having been inflicted on Isidoro Viacrusis, while bound and prostrate on the ground, utterly unable to put up any defense, the wounds being of such a nature as would have resulted in his death were it not for timely medical intervention. Obviously, these acts do not fall within the ambit of Article 294, which treats of the special complex crime of robbery with violence against or intimidation of persons, but NOT robbery with attempted or frustrated homicide (or murder), although the law does punish the crime of attempted and frustrated robbery with homicide. 24 Neither do the crimes come within the operation of Article 48 of the Criminal Code which, speaking of complex crimes, provides that when "a single act constitutes two or more grave or less grave felonies, or when an offense is a necessary means for committing the other, the penalty for the most serious crime shall be imposed, the same to be applied in its maximum period." In this case, the two crimes of "carnapping" and frustrated murder did not result from "a single act." Nor was either offense a "necessary means for committing the other." The shooting of the victim was not necessary to commit the "carnapping;" indeed at the time the victim was shot, the "carnapping" had already been consummated. And, of course, the "carnapping" which, according to the evidence, was the conspirators' principal objective, was not necessary to perpetrate the shooting. It follows then that the malefactors' felonious acts in Criminal Case No. 3565 cannot be regarded as juridically fused into a "complex crime" under Article 48. They should be considered separate offenses, separately punishable. Now, Sinoc admittedly entered into a conspiracy with his co-accused; but he insists that as far as he was concerned, the conspiracy was to "carnap" the "Pajero," and did not include any killing or assault against persons. His theory is that the slaying of the driver and passenger might conceivably have been contemplated from the outset by one or some or all his

co-conspirators; but Sinoc himself never had that intention. Indeed, he says he had no inkling that the shooting would take place; had no opportunity to prevent it, and could only remonstrate about it after it was done; and he invokes the doctrine that conspirators may only be held accountable for the acts embraced in the criminal agreement; and as regards felonious acts not included, only the author thereof would be liable. 25 Sinoc's disclaimers notwithstanding, it is this Court's view that the crime that may properly be ascribed to him in Case No. 3564 is robbery with homicide under Article 294 of the Revised Penal Code. For unfortunately for him, there is no avoiding the fact that a homicide although not agreed to or expected by him was committed on the occasion of the robbery of the "Pajero;" and he could not but have realized or anticipated the possibility of serious harm, even death, being inflicted on the person or persons in the "Pajero" targeted for robbery, since two of his companions were armed with guns, even if in his mind, to repeat, his agreement with them did not include killing. 26 The most that can be conceded is to credit him with the mitigating circumstance of having "no intention to commit so grave a wrong as that committed." 27 Sinoc may not be held liable in Case No. 3565 for the separate offense of frustrated murder as regards Viacrusis, for the reasons already mentioned; in this particular case, the evidence shows that he agreed only to the plan to "carnap" the "Pajero," but not to any assault or killing. 28 Nor is it logical to convict him twice of robbery of the same property under the same circumstances. Hence, he may not be pronounced responsible for the separate offense of robbery of the same "Pajero," in addition to being declared guilty of robbery (of that same "Pajero") with homicide under Article 294. The penalty imposable on Sinoc is that provided in Article 294 of the Penal Code, which is reclusion perpetua to death. Appreciating in his favor the mitigating circumstance of lack of intention to commit so grave a wrong as that done, the penalty that should be applied to him is reclusion perpetua. WHEREFORE, in Criminal Case No. 3564, appellant Danilo Sinoc, being guilty beyond reasonable doubt of the offense of robbery with homicide defined and punished by Article 294 of the Revised Penal Code, is sentenced to reclusion perpetua. Criminal Case No. 3565 is DISMISSED as to him. SO ORDERED.

G.R. No. 136267

July 10, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FIDEL ABRENICA CUBCUBIN, JR., accused-appellant. MENDOZA, J.: This case is here on automatic review of the decision,1 dated October 5, 1998, of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Fidel Abrenica Cubcubin, Jr. guilty of murder and sentencing him to suffer the penalty of death. The information against accused-appellant alleged: That on or about August 26, 1997, in the City of Cavite, Republic of the Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused, armed with an unlicensed homemade (paltik) Smith and Wesson caliber .38 revolver, with no serial number, with intent to kill, acting with treachery and evident premeditation and taking advantage of the darkness of [the] night, did, then and there, willfully, unlawfully, and feloniously, assault, attack and shoot with the aforesaid unlicensed firearm a certain HENRY PECHO PIAMONTE, hitting and inflicting upon the latter gunshot wounds in the head which caused the latter's instantaneous death. CONTRARY TO LAW.2 Accused-appellant pleaded not guilty to the charge, whereupon trial on the merits ensued. Eight witnesses were presented by the prosecution: police officers Florentino M. Malinao, Jr., Enrico A. Rosal, Raymundo D. Estoy, Jr., and Virgilio L. Pilapil, all of whom belong to the Cavite City Police Department; National Bureau of Investigation ballistician Isabelo D. Silvestre, Jr.; NBI Forensic Chemist II Juliet Gelacio-Mahilum; Dr. Regalado D. Sosa, City Health Officer II and City Medico-Legal Officer of the Department of Health (DOH) in Cavite City; and Danet D. Garcellano, a food server at the Sting Cafe in San Antonio, Cavite City. The testimony of Police Chief Inspector Edwin G. Nemenzo, Chief of the Records, Firearms and Explosives Division of the Philippine National Police (PNP) in Camp Crame, Quezon City, was dispensed with in view of his certification, dated October 7, 1997 (Exh. N),3 that accused-appellant is not a licensed/registered holder of firearm of any kind and caliber. The prosecution evidence is to the following effect: At about 3:30 in the morning of August 26, 1997, Sgt. Rogel, desk officer of the Cavite City police station, received a telephone call that a person had been shot near the cemetery along Julian Felipe Boulevard in San Antonio, Cavite City. For this reason, a police team, composed of SPO1 Malinao, Jr., PO3 Rosal, PO3 Estoy, Jr., PO3 Manicio, and SPO3 Manalo, responded to the call and found Henry P. Piamonte slumped dead on his tricycle which was then parked on the road. Police photographer Fred Agana took pictures of the crime scene (Exhs. A, A-1, A-2, and A-3)4 showing the victim slumped on the handle of the tricycle.5 PO3 Rosal testified that a tricycle driver, who refused to divulge his name, told him that accused-appellant and the victim were last seen together coming out of the Sting Cafe, located in San Antonio

near the gate of Sangley Point, Cavite City, about a kilometer and a half away from the crime scene. Forthwith, PO3 Rosal and SPO1 Malinao, Jr. went to the cafe and talked to Danet Garcellano, a food server/waitress in Sting Cafe.6 The other policemen at the police station called up City Prosecutor Agapito Lu who also proceeded to Sting Cafe. Garcellano told the police investigators that she had seen accused-appellant arrive at Sting Cafe at about 12:00 midnight and drink beer; that at about 2:30 a.m., the victim arrived and joined accused-appellant; that the two stayed in the cafe until 3:30 a.m.; and that she did not know if they left together as she was serving other customers. Garcellano described accusedappellant as a lean, dark-complexioned, and mustachioed man who had on a white t-shirt and brown short pants.7 Armando Plata, another tricycle driver, told PO3 Rosal and SPO1 Malinao, Jr. that Garcellano's description fitted a person known as alias "Jun Dulce." Armando Plata, who knew where accused-appellant lived, led PO3 Rosal, SPO1 Malinao, Jr., and Prosecutor Lu to accused-appellant's house in Garcia Extension, Cavite City. The policemen knocked on the door for about three minutes before it was opened by a man who answered the description given by Danet Garcellano and who turned out to be accused-appellant. The police operatives identified themselves and informed him that he was being sought in connection with the shooting near the cemetery. Accused-appellant denied involvement in the incident. PO3 Rosal and SPO1 Malinao, Jr. then asked permission to enter and look around the house.8 SPO1 Malinao, Jr. said that upon entering the house, he noticed a white t-shirt, bearing the brand name "Hanes" (Exh. H)9 and the name "Dhenvher" written in the inner portion of the shirt's hemline, placed over a divider near the kitchen. Upon close examination, he said that he found it to be "bloodied." When he picked up the t-shirt, two spent .38 caliber shells fell from it. PO3 Rosal stayed with accused-appellant while he conducted a search. They then took the t-shirt and the two bullet shells. SPO1 Malinao, Jr. then asked accused-appellant to go with them to Sting Cafe for purposes of identification. There, accused-appellant was positively identified by Danet Garcellano as the victim's companion. The police investigators asked accused-appellant where the fatal gun was. SPO1 Malinao, Jr. said accused-appellant refused to tell him where he hid the gun so he sought his (accused-appellant's) permission to go back to his house to conduct a further search. Thereupon, SPO1 Malinao, Jr., accompanied by Prosecutor Lu, PO3 Estoy, Jr., PO3 Manicio, SPO3 Manalo, and PO3 Rosal, proceeded thereto.10 Inside the house, they saw accused-appellant's 11-year old son Jhumar. PO3 Estoy, Jr. found on top of a plastic water container (drum) outside the bathroom a homemade Smith and Wesson caliber .38 revolver (six shooter), without a serial number (Exh. F). He found the gun loaded with five live bullets (Exhs. M, M-1, M-2, M-3, and M-4). PO3 Estoy, Jr. said that he inscribed his initials "RDE" (for Raymundo D. Estoy) on the cylinder of the gun with the use of a sharp object. While PO3 Estoy, Jr. was conducting the search, SPO1 Malinao, Jr. and PO3 Rosal stayed with accused-appellant in the sala.11 The .38 caliber gun (Exhs. B, B-1),12 the white "Hanes" t-shirt (Exhs. B-2, B-2-A, B-2-B),13 and the two spent .38 caliber shells (Exhs. B-2, B-2-B)14 were all photographed. Accusedappellant was then taken to the police station, where he was photographed (Exh. B-3)15 along with the things seized from him. SPO4 Virgilio Pilapil, Chief Investigator of the Criminal Investigation Division, testified that on August 26, 1997, the case involving the killing of Henry Pecho Piamonte was forwarded to him by PO3 Rosal together with the evidence consisting of a bloodstained white "Hanes" t-shirt, a .38 revolver with five live ammunitions, and two deformed slugs. After an evaluation of the evidence, he formally filed a criminal complaint for murder against accused-appellant. He took blood samples of the victim and submitted the same to the NBI for laboratory examination.16 Dr. Regalado Sosa, City Health Officer II and City Medico-Legal Officer of the Department of Health in Cavite City, conducted a postmortem examination of the cadaver and prepared an autopsy report (Exh. O)17 which showed the following findings: AUTOPSY REPORT EXTERNAL FINDINGS: A medium built fair complexioned male adult human body in its cadaveric state with gunshot wounds . . . described as follows: = Gunshot wound, 1.5 cm. x 0.5 cm., oval in shape with powder burns more on top of the wound to 2.5 cms. elevation/height located at the angle of the right jaw and/or 5 cms. below the inferior level of the right ear. The wound has irregular and inverted borders. It is directed inwards fracturing the lower edge of the angle of the right mandible and the lead slug is embedded at the right lateral portion of the first (1st) cervical vertebrae hence extracted.

= Gunshot wound, 1 cm. in d[iameter] with inverted irregular borders located at the left frontal region 5 cms. above the temporal end of the left eyebrow. It is directed inwards and downwards fracturing the bone (frontal) underneath into [the] intracranial cavity. INTERNAL FINDINGS: = Presence of circular complete fracture, 0.8 cm. in d[iameter] at the left frontal region. = The left frontal lobe of the brain is perforated and the frontal lobe is enveloped with liquid and clotted blood. = The lead slug is found at the inner surface of the left frontal lobe. = The right mandibular region was incised near the gunshot wound and the area is severely hematomatous and explored until a lead slug [was] found at the 1st cervical vertebrae at the right side. = Stomach contains liquid and little rice and with alcoholic (beer) smell. = Other internal organs are significantly normal. Slugs extracted: 1. 0.6 cm. in d[iameter] lead slug with one end is markedly deformed. The length of the slug is 1.6 cms. Note: One diagonal incised line was marked on the slug. 2. A 0.7 cm. in d[iameter] lead slug . . . roundly/ovally deformed [on] one end. The length of the slug is 1.8 cm. Note: Two diagonal incised lines [were] marked on the said slug. Dr. Sosa testified that the victim sustained two gunshot wounds (Exh. R),18 the first one located on the right jaw below the ear while the second wound located at the left temporal side above the left eyebrow. The slug from the first gunshot wound remained at the base of the neck, near the spinal column. There were powder burns, called "tatooing," surrounding the first wound which showed that the victim was shot point-blank. The second slug was also embedded at the front lobe of the brain.19 Dr. Sosa indicated in the Certificate of Death (Exh. Q) that the victim died of "shock secondary to severe intracranial hemorrhage due to multiple gunshot wounds."20 Upon written request (Exh. C)21 of Prosecutor Lu, the NBI conducted a ballistics examination to determine whether the two slugs taken from the body of the victim were fired from the firearm recovered from accused-appellant. Isabelo D. Silvestre, Jr., an NBI ballistician, conducted on September 10, 1997 a comparative examination of the two "evidence bullets," marked as "HPP-1" (Exh. E) and "HPP-2" (Exh. E-1), which had been recovered from the victim's head and the three "test bullets" (Exhs. G, G-1, G-2) fired from the seized .38 caliber firearm. The tests showed that the "evidence bullets" were fired from the subject firearm.22 The empty shells from the three "test bullets" fired were duly marked (Exhs. G-3, G-4, G-5). No photographs were taken. Silvestre's findings were confirmed by four other NBI ballisticians: Chief Ballistician Rogelio Munar, Supervising Ballistician Ernie Magtibay, Senior Ballistician Elmer Pieded, and, Flor Landicho, another ballistician. The two .38 caliber empty shells recovered from accused-appellant were no longer examined.23 Prosecutor Lu also made a written request (Exh. J)24 for a laboratory examination of the bloodstains on the white "Hanes" t-shirt of accused-appellant to determine whether such were identical to the blood of the victim. Juliet Gelacio-Mahilum, NBI Forensic Chemist II, testified that on September 26, 1997, she conducted three kinds of laboratory examinations, namely, (a) benzidine test, to determine the presence of blood; (b) precipitin test, to determine if the bloodstains came from human or animal blood; and (c) ABO grouping test, to determine the blood group. When

tested and matched together, the bloodstained white "Hanes" t-shirt and the blood sample of the victim yielded positive results for human blood belonging to blood type "O" (Exh. K).25 For its part, the defense presented accused-appellant himself, his son Jhumar, and his sister Yolanda Cubcubin Padua. Accused-appellant Fidel Abrenica Cubcubin, Jr. testified that he enlisted in the Philippine Constabulary as a soldier in 1974 but was discharged in 1977 for being AWOL. He said he left for Saudi Arabia where he worked as a driver and came back in 1979. He was later employed as a driver by a friend, who owned a junk shop in Cavite City. He admitted knowing the victim whom he addressed as "Kuya." Accused-appellant testified that from 10:00 in the evening to 12:00 midnight of August 25, 1997, he and some friends played a card game called "tong-its" on Molina Street, Cavite City. Afterwards, he proceeded to the Sting Cafe where he had some drinks while waiting for food to be served. Henry Piamonte, a tricycle driver, arrived and had drinks with him. After a while, the victim left as a passenger was waiting to be given a ride. The victim came back to the restaurant before 1:00 a.m. and had another bottle of beer with accusedappellant. At about 1:30 a.m., the victim again left to transport another passenger. After that, the victim did not come back anymore.26 Accused-appellant said he left Sting Cafe at about 2:00 a.m. and took a tricycle home to 1151 Garcia Extension, San Antonio, Cavite City. He was sleeping on the sofa in his bedroom when he was awakened by the arrival of three policemen, two of them he recognized as SPO1 Malinao, Jr. and PO3 Estoy, Jr., who pointed their guns at him and told him to lie face down. He said he was handcuffed while the policemen searched his room, turning the sala set upside down and opening the cabinets. His son, Jhumar, stood beside him. Before leaving, the policemen took from the clothes stand a white t-shirt belonging to his son Denver. Accused-appellant said that he did not ask them why they were searching the place as he was afraid they would maltreat him. He denied the claim of the policemen that the white tshirt had blood stains. He claimed that the policemen did not have any search warrant nor a warrant of arrest when they took him into custody. Nor did they inform him of his constitutional right to remain silent and to be assisted by counsel. He also said that he was made to stay in a police patrol car for almost two hours before he was brought inside the police station. He denied owning the .38 caliber revolver presented to him by Prosecutor Lu and SPO4 Pilapil or that the same had been recovered from his house. He also denied the prosecution's claim that he was taken to the Sting Cafe where he was allegedly identified by Danet Garcellano as the person last seen with the victim before the latter was killed.27 Jhumar Cubcubin, son of accused-appellant, testified that at about 4:00 in the morning of August 26, 1997, he was sleeping on the second floor of the house when he was roused from his sleep by loud knocks on the door. When he opened the door, he saw three policemen who were looking for his father. He told them that his father was not around, but he was shoved away. They proceeded upstairs to the room of his father where they took from the clothes stand a white "Hanes" t-shirt belonging to his brother Denver. They put his father in a police patrol car waiting outside. Jhumar immediately went to his aunt, Yolanda Cubcubin Padua, and reported to her what had happened. He went back to the house and saw some policemen still conducting a search. As the policemen were about to leave, a van with some other policemen on board arrived. They asked him where the water container was located. They went inside the house and, when they came out, one of them announced that he had found a gun, which was then photographed. Jhumar said that while his father was inside the police patrol car, his aunt was arguing with the policemen. At that instance, SPO1 Malinao, Jr. spread the t-shirt and told Jhumar's aunt "Eto, puro dugo damit niya," although the t-shirt had no bloodstains. He said that he and his father never gave permission to the policemen to search their house.28 Yolanda Cubcubin Padua, accused-appellant's sister, testified that at about 5:30 in the morning of August 26, 1997, she was told by her nephew, Jhumar, that accused-appellant had been apprehended by some policemen. She and Jhumar then went to the police patrol car where she saw her brother in handcuffs. She said she protested to the policemen that there was no evidence that accused-appellant had killed the victim. Yolanda said she saw the confiscated white Hanes tshirt, but she claimed the same did not have any bloodstain on it. She went back to her house to call up her mother in Gen. Trias, Cavite to let her know what had happened. She then went out to see accused-appellant and saw Jhumar, who told her that some policemen were searching accused-appellant's house and found a gun.29 On October 5, 1998, the trial court rendered its decision finding accused-appellant guilty of murder. It based its finding on circumstantial evidence, to wit: (1) That Danet Garcellano, a waitress at the Sting Cafe, saw accused-appellant arrive at about 12:00 midnight of August 25, 1997 and drink beer, while the victim arrived at about 2:30 a.m. of August 26, 1997 and joined accused-appellant in drinking beer at the bar. She said that she served them beer and they stayed for about an hour, that the two later had an argument as accused-appellant wanted to have two more bottles of beer which the victim paid for, and that at about 3:30 a.m., the victim and accused-appellant left and boarded the victim's tricycle;

(2) That PO3 Rosal and SPO1 Malinao, Jr. testified that they saw the lifeless body of the victim, with bullet wounds on his head, slumped on the handle of his tricycle, that the crime scene was about 50 meters away from the house of accused-appellant, and that when they were told by an unidentified tricycle driver that the victim and accused-appellant were seen leaving the Sting Cafe together, they went to Sting Cafe and interviewed Danet Garcellano who described the appearance of the victim's companion. Armando Plata, another tricycle driver who knew accused-appellant as the person being described by Garcellano, accompanied the policemen to the house of accused-appellant; (3) That after SPO1 Malinao, Jr. was allowed to enter the house, he found a white "Hanes" t-shirt with bloodstains on it and also recovered two spent .38 caliber shells; (4) That when accused-appellant was taken to the Sting Cafe, he was positively identified by Danet Garcellano as the victim's companion moments prior to his death; (5) That when the investigators returned to the house of accused-appellant, PO3 Estoy, Jr. found a .38 caliber revolver placed on top of a plastic water container located outside the bathroom; (6) That laboratory examination conducted by the forensic chemist, Juliet GelacioMahilum, showed that the bloodstains on the white "Hanes" t-shirt were human blood, type "O," which matched the blood type of the victim; and (7) That per ballistic examination of NBI ballistician, Isabelo D. Silvestre, Jr., the two slugs recovered from the head of the victim were fired from the .38 caliber revolver seized from accused-appellant's house. The trial court rejected accused-appellant's alibi, giving full credence to the testimonies of Danet Garcellano and the police investigators whom it found to have no motive to falsely implicate accused-appellant. It admitted the prosecution evidence consisting of the white "Hanes" t-shirt, two spent shells, and the .38 caliber revolver, on the ground that these items had been seized as incident to a lawful arrest. It ruled that since Dr. Sosa testified that the victim was shot pointblank while on his tricycle and was not in a position to see the assailant, the qualifying circumstance of treachery was present, not to mention that the victim was unarmed and thus totally defenseless. The trial court theorized that while the victim was on his tricycle, the assailant went around and shot him on the left temple. It held that the use of an unlicensed firearm in killing the victim constituted an aggravating circumstance. Hence, the trial court found accusedappellant guilty of murder and accordingly imposed on him the penalty of death. Hence, this appeal. On April 18, 2000, the Court received a letter, dated April 5, 2000,30 from Victoria Abrenica Dulce, mother of accusedappellant, with an attached affidavit of desistance entitled "Sinumpaang Salaysay ng Pag-Uurong," dated November 14, 1997,31 executed by Marilou B. Piamonte, widow of the victim, stating that accused-appellant had been mistakenly identified as the assailant, and, by reason thereof, sought the dismissal of the criminal case against him. In her letter, Dulce said that the affidavit of desistance was supposed to be submitted to the trial court prior to the presentation of the evidence for the prosecution, but, for unknown reasons, the same was not done by accused-appellant's counsel. This affidavit of desistance, however, not being formally offered before the trial court, has no probative value. We now consider accused-appellant's assignment of errors. First. Accused-appellant contends that his arrest, effected on August 26, 1997 without a warrant, was illegal. On this point, Rule 113, 5(b) of the 1985 Rules on Criminal Procedure, as amended, provides: Sec. 5. Arrest without warrant; when lawful. A peace officer or a private person may, without a warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another." Under 5(b), two conditions must concur for a warrantless arrest to be valid: first, the offender has just committed an offense and, second, the arresting peace officer or private person has personal knowledge of facts indicating that the person to be arrested has committed it. It has been held that "'personal knowledge of facts' in arrests without a warrant must be based upon probable cause, which means an actual belief or reasonable grounds of suspicion."32

In this case, the arrest of accused-appellant was effected shortly after the victim was killed. The question, therefore, is whether there was "probable cause" for PO3 Rosal and SPO1 Malinao, Jr., the arresting officers, to believe that accusedappellant committed the crime. We hold that there was none. The two did not have "personal knowledge of facts" indicating that accused-appellant had committed the crime. Their knowledge of the circumstances from which they allegedly inferred that accused-appellant was probably guilty was based entirely on what they had been told by others, to wit: by someone who called the PNP station in San Antonio, Cavite City at about 3:30 in the morning of August 26, 1997 and reported that a man had been killed along Julian Felipe Boulevard of the said city; by an alleged witness who saw accused-appellant and the victim coming out of the Sting Cafe; by Danet Garcellano, waitress at the Sting Cafe, who said that the man last seen with the victim was lean, mustachioed, dark-complexioned and was wearing a white t-shirt and a pair of brown short pants; by a tricycle driver named Armando Plata who told them that the physical description given by Garcellano fitted accused-appellant, alias "Jun Dulce" and who said he knew where accused-appellant lived and accompanied them to accused-appellant's house. Thus, PO3 Rosal and SPO1 Malinao, Jr. merely relied on information given to them by others. In an analogous case,33 the police was informed that the accused was involved in subversive activities. On the basis of this information, the police arrested the accused and, in the course of the arrest, allegedly recovered an unlicensed firearm and some subversive materials from the latter. This Court held that the arresting officers had no personal knowledge since their information came entirely from an informant. It was pointed out that at the time of his arrest, the accused was not in possession of the firearm nor engaged in subversive activities. His arrest without a warrant could not be justified under 5(b). In another case,34 the accused, in a case of robbery with rape, were arrested solely on the basis of the identification given by one of the victims. This Court held the arrest to be illegal for lack of personal knowledge of the arresting officers. More recently, in Posadas v. Ombudsman,35 this Court, in declaring the arrest without warrant of two University of the Philippines students to be illegal, held: There is no question that this case does not fall under paragraphs (a) and (c). The arresting officers in this case did not witness the crime being committed. Neither are the students fugitives from justice nor prisoners who had escaped from confinement. The question is whether paragraph (b) applies because a crime had just been committed and the NBI agents had personal knowledge of facts indicating that [the students] were probably guilty. .... [T]he NBI agents in the case at bar tried to arrest [the students] four days after the commission of the crime. They had no personal knowledge of any fact which might indicate that the two students were probably guilty of the crime. What they had were the supposed positive identification of two alleged eyewitnesses, which is insufficient to justify the arrest without a warrant by the NBI. Indeed, at the time [the victim] was killed, these [NBI] agents were nowhere near the scene of the crime. When [the NBI agents] attempted to arrest [the students], the latter were not committing a crime nor were they doing anything that would create the suspicion that they were doing anything illegal. On the contrary, [they], under the supervision of the U.P. police, were taking part in a peace talk called to put an end to the violence on the campus. Nor can it be argued that the arresting officers had probable cause to believe accused-appellant to be guilty of the killing of the victim because they found a bloodstained t-shirt, a .38 caliber revolver, and two spent .38 caliber shells in his house. At the time accused-appellant was arrested, he was not doing anything overtly criminal. The alleged discovery of the gun came after his arrest. Moreover, as will presently be explained, the objects allegedly seized from accusedappellant were illegally obtained without a search warrant. Be that as it may, accused-appellant cannot now question the validity of his arrest without a warrant. The records show that he pleaded not guilty to the charge when arraigned on November 11, 1997. It is true that on August 28, 1997, he filed a petition for reinvestigation in which he alleged that he had been illegally detained without the benefit of a warrant of arrest. In its order, dated September 9, 1997, the trial court granted his motion and ordered the City Prosecutor to conduct a preliminary investigation and submit his findings within thirty (30) days thereof.36 On October 7, 1997, City Prosecutor Agapito S. Lu moved for the resetting of accused-appellant's arraignment from October 8, 1997 to the first week of November, 1997 on the ground that the findings on the laboratory and ballistics examinations had not yet been received from the NBI.37 Accused-appellant did not object to the arraignment. The City Prosecutor's request was,

therefore, granted and the arraignment was reset to November 11, 1997.38 Nor did accused-appellant move to quash the information on the ground that his arrest was illegal and, therefore, the trial court had no jurisdiction over his person. Instead, on November 11, 1997, at the scheduled arraignment, accused-appellant, with the assistance of counsel, pleaded not guilty to the charge.39 On the same day, the trial court issued an order stating that, as a result of accusedappellant's arraignment, his motion for preliminary investigation had become moot and academic and, accordingly, set the case for trial.40 Accused-appellant thus waived the right to object to the legality of his arrest.41 Second. Accused-appellant contends that neither he nor his son gave permission to the arresting police officers to search his house and, therefore, the "Hanes" t-shirt, the two spent slugs, and the .38 caliber revolver allegedly found in his house are inadmissible in evidence. The prosecution, on the other hand, insists that accused-appellant consented to the search of his house. To be sure, the right against unreasonable searches and seizures is a personal right which may be waived expressly or impliedly. But a waiver by implication cannot be presumed. There must be persuasive evidence of an actual intention to relinquish the right. A mere failure on the part of the accused to object to a search cannot be construed as a waiver of this privilege. For as Justice Laurel explained in Pasion Vda de Garcia v. Locsin,42 "As the constitutional guaranty is not dependent upon any affirmative act of the citizen, the courts do not place the citizen in the position of either contesting an officer's authority by force, or waiving his constitutional rights; but instead they hold that a peaceful submission to a search or seizure is not consent or an invitation thereto, but is merely a demonstration or regard for the supremacy of the law." Because a warrantless search is in derogation of a constitutional right, peace officers who conduct it cannot invoke regularity in the performance of official functions and shift to the accused the burden of proving that the search was unconsented. It is noteworthy that the testimonies of the two prosecution witnesses, SPO1 Malinao, Jr. and PO3 Rosal, on the search show laborious effort to emphasize that accused-appellant gave them permission to search his house. At every turn, even when they were not being asked, they said the search was made with the consent of the accused. As Shakespeare would put it, "the lady doth protest too much, methinks." Indeed, not only does accused-appellant stoutly deny that he ever consented to the search of his dwelling but the prosecution has not shown any good reason why accused-appellant might have agreed to the search. The prosecution says the search can be justified as incidental to a valid arrest. Even assuming the warrantless arrest to be valid, the search cannot be considered an incident thereto. A valid arrest allows only the seizure of evidence or dangerous weapons either in the person of the one arrested or within the area of his immediate control. The rationale for such search and seizure is to prevent the person arrested either from destroying evidence or from using the weapon against his captor. It is clear that the warrantless search in this case cannot be justified on this ground. For neither the tshirt nor the gun was within the area of accused-appellant's immediate control. In fact, according to the prosecution, the police found the gun only after going back to the house of accused-appellant. Nor can the warrantless search in this case be justified under the "plain view" doctrine. As this Court held in People v. Musa:43 The "plain view" doctrine may not, however, be used to launch unbridled searches and indiscriminate seizures nor to extend a general exploratory search made solely to find evidence of defendant's guilt. The "plain view" doctrine is usually applied where a police officer is not searching for evidence against the accused, but nonetheless inadvertently comes across an incriminating object. [Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed. 2d 564 (1971)] Furthermore, the U.S. Supreme Court stated the following limitations on the application of the doctrine: What the "plain view" cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. The doctrine serves to supplement the prior justification whether it be a warrant for another object, hot pursuit, search incident to lawful arrest, or some other legitimate reason for being present unconnected with a search directed against the accused and permits the warrantless seizure. Of course, the extension of the original justification is legitimate only where it is immediately apparent to the police that they have evidence before them; the "plain view" doctrine may not be used to extend a general exploratory search from one object to another until something incriminating at last emerges. [Id., 29 L.Ed. 2d 583. See also Texas v. Brown, 460 U.S. 730, 75 L. Ed. 2d 502 (1983)]

Here, the search of accused-appellant's house was illegal and, consequently, the things obtained as a result of the illegal search, i.e., the white "Hanes" t-shirt, two spent shells, and the .38 caliber gun, are inadmissible in evidence against him. It cannot be said that the .38 caliber gun was discovered through inadvertence. After bringing accused-appellant to the Sting Cafe where he was positively identified by a waitress named Danet Garcellano as the victim's companion, the arresting officers allegedly asked accused-appellant where he hid the gun used in killing the victim. According to SPO1 Malinao, Jr., when accused-appellant refused to answer, he sought accused-appellant's permission to go back to his house and there found the .38 caliber revolver on top of a plastic water container outside the bathroom. Thus, the gun was purposely sought by the police officers and they did not merely stumble upon it. Nor were the police officers justified in seizing the white "Hanes" t-shirt placed on top of the divider "in plain view" as such is not contraband nor is it incriminating in nature which would lead SPO1 Malinao, Jr. to conclude that it would constitute evidence of a crime. Contrary to what SPO1 Malinao, Jr. said, the t-shirt was not "bloodied" which could have directed his attention to take a closer look at it. From the photograph of the t-shirt (Exh. B-2), it is not visible that there were bloodstains. The actual t-shirt (Exh. H) merely had some small specks of blood at its lower portion. Third. There is no evidence to link accused-appellant directly to the crime. Danet Garcellano said that accused-appellant arrived at about midnight of August 25, 1997; that the victim joined him at about 2:30 a.m.; and that although both left the Sting Cafe at about 3:30 a.m., she really did not know if they left together. Thus, Danet testified: PROSECUTOR LU: .... Q Were they together when they left Sting Cafe or they left one after the other?

A When they were already bringing along with them the two bottles of beer, they talked and afterwards, I already left them and I served the other customers. Q Did you actually see Henry Piamonte leave the Sting Cafe?

A They were about to leave already at that time because they were already bringing with them the two bottles of beer, Sir. Q A Q A Q A .... On cross-examination, Danet said: ATTY. BAYBAY: Q A When he left, he left alone? I do not know anymore, Sir, because I already served inside. But did you see Henry Piamonte actually leave the Sting Cafe? When Henry Piamonte left the Sting Cafe, Henry boarded a tricycle, Sir. How about Cubcubin, how did he leave the Sting Cafe? He followed Henry, Sir. How did he follow Henry, on foot, on board a vehicle or what? I do not know anymore, Sir, because I already served the other customers inside.44

Are you saying to us that you did not see him when he left?

A No, Sir, what I know is that he and Cubcubin were together because of the two bottles of beer which were paid by Piamonte inside, Sir. .... ATTY. BAYBAY: Q A Q A Q A Q A Q A Q A The accused Fidel Cubcubin left Sting Cafe at 3:30? Yes, Sir. Now, how could you be sure of the time when you were serving other people at that time? That is only my estimation, Sir. You only estimated? Yes, Sir. And, what was the basis of your estimation? Because at that time there were only few customers in that place, Sir. So, you are not really sure what time Fidel Cubcubin left? Yes, Sir. You also did not see him leave? No, Sir.45

In People v. Gallarde,46 it was explained that positive identification refers essentially to proof of identity and not per se to that of being an eyewitness to the very act of commission of the crime. A witness may identify a suspect or accused in a criminal case as the perpetrator of the crime. This constitutes direct evidence. Or, he may not have actually seen the crime committed, but is nevertheless able to identify a suspect or accused as the perpetrator of the crime, as when the latter is the person or one of the persons last seen with the victim immediately before and right after the commission of the crime. This is the second type of positive identification, which, when taken together with other pieces of evidence constituting an unbroken chain, leads to a fair and reasonable conclusion that the accused is the author of the crime to the exclusion of all others. This rule, however, cannot be applied in the present case because Danet Garcellano did not actually see accusedappellant and the victim leave the Sting Cafe together. There is thus serious doubt as to whether accused-appellant was really the last person seen with the victim. Her testimony is insufficient to place accused-appellant in the scene of the crime so as to form part of the chain of circumstantial evidence to show that accused-appellant committed the crime. Suspicion alone is insufficient, the required quantum of evidence being proof beyond reasonable doubt.47 Nor is there adequate evidence to prove any ill motive on the part of accused-appellant. Accused-appellant testified that he could not have killed the victim because the latter was his friend whom he considered his "kuya" or elder brother.48 There is no showing that the killing of the victim was by reason of a supposed altercation they had as to who would pay for the two bottles of beer ordered while they were at the Sting Cafe. The beer was later paid for by the victim. Motive is proved by the acts or statements of the accused before or immediately after the commission of the offense, i.e., by deeds or words that may express the motive or from which his reason for committing the offense may be inferred.49

Rule 133, 4 of the Revised Rules on Evidence requires the concurrence of the following in order to sustain a conviction based on circumstantial evidence: (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. In the case at bar, there are serious doubts as to whether the crime was committed by accused-appellant in view of the following: (1) As already stated, Danet Garcellano, a waitress at the Sting Cafe, did not actually see accused-appellant and the victim leaving the cafe together at about 3:30 a.m. of August 26, 1997; (2) PO3 Rosal and SPO1 Malinao, Jr. testified that when they arrived at the scene of the crime, they were informed by a tricycle driver that the victim and the accused-appellant had earlier left the Sting Cafe together, but the tricycle driver was not presented to confirm this fact; (3) SPO1 Malinao, Jr. testified that the white "Hanes" t-shirt was "bloodied," but the evidence shows that it had some bloodstains only on its lower portion (Exh. H), while the photograph of the t-shirt (Exhs. B-2, B-2-A, B-2-B), supposedly taken at the time of the search, shows that it had no bloodstains and this discrepancy was not explained by SPO1 Malinao, Jr.; (4) The fact that the t-shirt was tested positive for type "O" blood does not necessarily mean that the bloodstains came from the victim who also had a type "O" blood; (5) Accused-appellant was never given a paraffin test to determine if he was positive for gunpowder nitrates; (8) The .38 caliber gun allegedly found in his house was not examined for the possible presence of accused-appellant's fingerprints; and (9) The allegation that the gun was placed on top of a water container in accused-appellant's house is unbelievable as it is improbable that accused-appellant could be so careless as to leave the fatal weapon there when he could have hidden it or thrown it away. Nor can we rest easy on the prosecution's claim as to where the two empty shells and the t-shirt were allegedly found. SPO1 Malinao, Jr. testified that these were placed beside the white "Hanes" t-shirt and fell when he took the shirt. On direct examination, SPO1 Malinao, Jr. said: PROSECUTOR LU: Q What else did you tell Cubcubin at that time?

A We asked him to allow us to go inside the house and he let us go inside the house, then after entering the same, while we were in the sala near the kitchen we saw the white Hanes t-shirt there, Sir, that was near the kitchen. Q Where exactly was the white t-shirt placed at that time when you saw the same?

A Because after entering the house you will see the entire portion of that house and there is a table there and that t-shirt was placed on the table. Q A Q Was that t-shirt visible from the front door of the house? Yes, Sir. Can you describe to us the t-shirt that you saw?

A Before I got the t-shirt, I even asked his permission for me to be able to get the t-shirt, Sir, and he even gave me the permission to get the same, after getting the t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with blood stains. Q A Q A Q This white t-shirt, can you tell us the brand of the t-shirt? Hanes, Sir. How about the blood spot or blood stains, can you tell us how many, if you can remember? We were in a hurry, I did not count the blood stains anymore but there were blood stains on the t-shirt, Sir. How about these 2 empty shells that fell when you lifted the t-shirt, can you describe to us these 2 empty shells?

A Q A

Empty shells of .38 cal. bullets, Sir. What did you do with the empty shells? I got the t-shirt as well as the 2 empty shells and I showed them to him, Sir.50

However, on cross-examination, he said he found the empty shells on top of a cabinet (tokador) in the bedroom on the second floor of the house. Thus, he testified: ATTY. BAYBAY: Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Q A Where was this t-shirt again when you first saw it? In the kitchen area, Sir. Where in the kitchen area, on the floor or on the wall? It was immediately in front of the door because the house has no divider anymore, Sir. And that t-shirt was immediately near the door, on the floor? Yes, Sir. What did you do after that, when you saw the t-shirt there? I asked his permission so that I could take a look at the t-shirt, Sir. And you said, you looked at it? Yes, Sir. When you said, you looked at it, how did you look at it? I spread it out in front of him, Sir. And when you spread it out in front of him, did you ask him whose t-shirt is it? I asked him if that t-shirt belongs to him, Sir. What did he say? According to him, the t-shirt does not belong to him, Sir. You also testified that you found two empty shells? Yes, Sir. Where did you find these two empty shells? From the bedroom upstairs, Sir. Bedroom upstairs? Yes, Sir.

Q A Q

You mean, it is a two-storey house? Yes, Sir, there is a bedroom upstairs. You found it when you went up?

A I first asked his permission to look around inside the house, Sir, because I was asking him also about the whereabouts of the firearm he had. Q A Q A And he allowed you? He allowed me, sir. And when you went upstairs, you found the two empty shells? Yes, Sir, they were placed on their tokador on a place where there is a curtain.

Q In your previous testimony and this is found on page 41 of the TSN, you stated that you got the t-shirt and when you lifted the t-shirt, two empty shells fell off? A After finding the two empty shells for a .38 caliber, Sir, I placed them together with the t-shirt.

Q What you are telling us now is that you went upstairs, you found two empty shells and you put them together with the t-shirt, that is what you are telling us now? A After finding and taking a look at the t-shirt, I put it on the original place where it was, Sir, and after finding the two empty shells, it so happened that the investigator was behind me so after that, I showed to him the t-shirt as well as the empty shells.51 .... Q Also in your previous testimony, you got the t-shirt and you asked the permission to get the t-shirt, after getting the t-shirt, there were 2 empty shells which fell. The question is, do you remember that this happened? A Q These two empty shells which I recovered upstairs, sir, I placed them on top of the t-shirt. You said, when you got the t-shirt, something fell, in your direct testimony?

A While Fidel Cubcubin was just beside me, Sir, I got the t-shirt, I spread it out and nothing fell yet at that time, then I asked him about the firearm that he used. .... Q "Q Do you remember having been asked this particular question: Can you describe to us the t-shirt that you saw?

A Before I got the t-shirt I even asked his permission for me to be able to get the t-shirt, Sir, and he even gave me the permission to get the same, after getting the t-shirt there were even 2 empty shells which fell, and I saw the t-shirt was with blood stains." A Q Yes, Sir, I remember it. I am just referring to two empty shells that fell, which you said, is that true?

A Yes, Sir, there were empty shells that fell, but I first placed them on top of the t-shirt because I was planning to wrap these empty shells in the t-shirt. Q A Q A Q You also testified here on page 40 that the t-shirt was visible from the front door of the house, is that true? Yes, Sir. And you were referring to the time that you entered the house? Yes, Sir. And that was the time that you lift[ed] the t-shirt when you saw it and you got it?

A What I said before was that, I got the t-shirt, I lifted it, after that, I placed it on its original place, Sir, and I asked him about the firearm but he was not commenting anything on that, so I asked permission from him to go upstairs to look around. Q When you said you placed that from the place where you found it, how did you put it on the place where you found it? A I placed it there the way I saw it before, the way it was previously placed there, Sir, because I was planning to bring the t-shirt.52 Thus, caught in his own contradiction, SPO1 Malinao, Jr. prevaricated but in the process committed more contradictions. He said he found the empty shells on top of the tokador on the second floor of the house, brought them downstairs, and then placed them on the t-shirt. When he got the t-shirt, the empty shells fell on the floor. But how could he have gotten the shells from the second floor if, according to him, he found them by accident when they fell from the t-shirt which he found immediately after entering accused-appellant's house and before going up to the second storey? It is also noteworthy that whereas at first SPO1 Malinao, Jr. said he found the t-shirt placed on the table near the kitchen, he later said he found it on the floor. WHEREFORE, the decision of the Regional Trial Court, Branch 88, Cavite City, finding accused-appellant Fidel Abrenica Cubcubin, Jr. guilty of the crime of murder, is REVERSED and accused-appellant is hereby ACQUITTED on the ground of reasonable doubt. Accused-appellant is ordered immediately released from custody unless he is being held for some other lawful cause. The Director of Prisons is directed to implement this Decision and to report to the Court the action taken hereon within five (5) days from receipt hereof. SO ORDERED.

G.R. No. 95902 February 4, 1992 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DON RODRIGUEZA, accused-appellant. REGALADO, J.: On appeal before us is the decision of the Regional Trial Court of Legaspi City, Branch 10, finding accused-appellant Don Rodrigueza guilty beyond reasonable doubt of violating Section 4, Article II of the Dangerous Drugs Act of 1972 (Republic Act No. 6425, as amended) and sentencing him to suffer the penalty of life imprisonment and to pay a fine of P20,000.00 and costs. 1 However, the Solicitor General, deviating from his conventional stance in the prosecution of criminal cases, recommends the acquittal of appellant for the reasons stated in his Manifestation for Acquittal (In Lieu of Appellee's Brief) filed with the Court. We have reviewed and analyzed the testimonial and documentary evidence in this case and we find said recommendation to be well taken. The information, dated July 10, 1987, charges Don Rodrigueza and his co-accused, Samuel Segovia and Antonio Lonceras, with allegedly having in their custody and possession 100 grams of marijuana leaves and for selling, in a buybust operation, said 100 grams of dried marijuana leaves for a consideration of P200.00. 2 During the arraignment, all the accused pleaded not guilty to the charge against them. At the trial, the prosecution and the defense presented several witnesses after which the court a quo rendered judgment acquitting Samuel Segovia and Antonio Lonceras but convicting and penalizing herein appellant as hereinbefore stated. The following facts are culled from the decision of the trial court and the evidence presented by the prosecution. At around 5:00 o'clock in the afternoon of July 1, 1987, CIC Ciriaco Taduran was in their headquarters at the Office of the Narcotics Regional Unit at Camp Bagong Ibalon, Legaspi City, together with S/Sgt. Elpidio Molinawe, CIC Leonardo B. Galutan and their commanding officer, Major Crisostomo M. Zeidem, when a confidential informer arrived and told them that there was an ongoing illegal traffic of prohibited drugs in Tagas, Daraga, Albay. Major Zeidem formed a team to conduct a buy-bust operation, which team was given P200.00 in different denominations to buy marijuana. These bills were treated with ultraviolet powder at the Philippine Constabulary Crime Laboratory (PCCL). Sgt. Molinawe gave the money to Taduran who acted as the poseur buyer. He was told to look for a certain Don, the alleged seller of prohibited drugs. Taduran went to Tagas alone and, while along the road, he met Samuel Segovia. He asked Segovia where be could find Don and where he could buy marijuana. Segovia left for a while and when be returned, he was accompanied by a man who was later on introduced to him as Don, herein appellant. 3 After agreeing on the price of P200.00 for 100 grams of marijuana, Don halted a passing tricycle driven by Antonio Lonceras. He boarded it and left Taduran and Segovia. When he came back, Don gave Taduran "a certain object wrapped in a plastic" which was later identified as marijuana, and received payment therefor. Thereafter, Taduran returned to the headquarters and made a report regarding his said purchase of marijuana. 4

Based on that information, Major Zeidem ordered a team to conduct an operation to apprehend the suspects. In the evening of the same date, CIC Galutan and S/Sgt. Molinawe proceeded to Regidor Street, Daraga, Albay and arrested appellant, Antonio Lonceras and Samuel Segovia. The constables were not, however, armed with a warrant of arrest when they apprehended the three accused. The arrestees were brought to the headquarters for investigation. 5 Thereafter, agents of the Narcotics Command (NARCOM) conducted a raid in the house of Jovencio Rodrigueza, father of appellant. Taduran did not go with them. During the raid, they were able to confiscate dried marijuana leaves and a plastic syringe, among others. The search, however, was not authorized by any search warrant. 6 The next day, July 2, 1987, Jovencio Rodrigueza was released from detention but appellant was detained. An affidavit, allegedly taken from and executed by him, was sworn to by him before the assistant city prosecutor. Appellant had no counsel when his sworn statement was taken during that custodial investigation. The arrestees were also examined by personnel of the PCCL and were found positive for ultraviolet powder. 7 The three accused presented different versions of their alleged participations. Samuel Segovia testified that he was in their house in the evening of July 1, 1987 listening to the radio. Later, he ate his merienda and then went out to buy cigarettes from the store. While he was at the store, a jeep stopped behind him. Several armed men alighted therefrom and ordered him to get inside the jeep. He refused but he was forced to board the vehicle. He was even hit by the butt of a gun. 8 He was thereafter brought to Camp Bagong Ibalon where he was investigated and was repeatedly asked regarding the whereabouts of Rodrigueza. He was manhandled by the NARCOM agents and was detained while inside the camp. He was then made to hold a P10.00 bill treated with ultraviolet powder. When he was taken to the PCCL and examined he was found positive of the ultraviolet powder. He was also made to sign some papers but he did not know what they were all about. 9 Appellant, on the other hand, testified that on said date he was in the house of his aunt in San Roque, Legaspi City. He stayed there overnight and did not leave the place until the next day when his brother arrived and told him that their father was taken by some military men the preceding night. Appellant went to Camp Bagong Ibalon and arrived there at around 8:00 o'clock in the morning of July 2, 1987. When he arrived, he was asked if he knew anything about the marijuana incident, to which question he answered in the negative. Like Segovia, he was made to hold a P10.00 bill and was brought to the crime laboratory for examination. From that time on, he was not allowed to go home and was detained inside the camp. He was also tortured in order to make him admit his complicity in the alleged sale of marijuana. 10 In the assignment of errors in his brief, appellant contends that the trial court erred in (1) admitting in evidence the sworn statement of appellant which was obtained in violation of his constitutional rights; (2) convicting appellant of the crime charged despite the fact that the 100 grams of dried marijuana leaves allegedly bought from him were not properly identified; (3) convicting appellant of the crime charged despite the fact that the evidence for the prosecution is weak and not convincing; and (4) finding appellant guilty beyond reasonable doubt of selling or at least acting as broker in the sale of the 100 grams of marijuana to CIC Taduran late in the afternoon of July 1, 1987, despite the failure of the prosecution to prove his guilt beyond reasonable doubt. 11 We rule for the appellant and approve the recommendation for his acquittal. In disposing of this case, however, we feel that the issues raised by appellant should properly be discussed seriatim. 1. A buy-bust operation is a form of entrapment employed by peace officers to trap and catch a malefactor in flagrante delicto. 12 Applied to the case at bar, the term in flagrante delicto requires that the suspected drug dealer must be caught redhanded in the act of selling marijuana or any prohibited drug to a person acting or posing as a buyer. In the instant case, however, the procedure adopted by the NARCOM agents failed to meet this qualification. Based on the very evidence of the prosecution, after the alleged consummation of the sale of dried marijuana leaves, CIC Taduran immediately released appellant Rodrigueza instead of arresting and taking him into his custody. This act of CIC Taduran, assuming arguendo that the supposed sale of marijuana did take place, is decidedly contrary to the natural course of things and inconsistent with the aforestated purpose of a buy-bust operation. It is rather absurd on his part to let

appellant escape without having been subjected to the sanctions imposed by law. It is, in fact, a dereliction of duty by an agent of the law. 2. The admissibility of the sworn statement allegedly executed by appellant was squarely placed in issue and, as correctly pointed out by the defense, said sworn statement is inadmissible in evidence against appellant. We have once again to reiterate and emphasize that Article III of the 1987 Constitution 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 a 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. xxx xxx xxx (3) Any confession or admission obtained in violation of this or section 17 hereof shall be inadmissible in evidence against him. An examination of said sworn statement shows that appellant was informed of his constitutional right to remain silent and to be assisted by counsel during custodial examination. He was also asked if he was waiving his right to be assisted by counsel and he answered in the affirmative. However, while the rights of a person under custodial investigation may be waived, such waiver must be made not only voluntarily, knowingly and intelligently but also in the presence and with the assistance of counsel. 13 In the present case, the waiver made by appellant being without the assistance of counsel, this omission alone is sufficient to invalidate said sworn statement. 14 3. Corollary to this, we take cognizance of the error of the trial court in admitting in evidence against appellant the articles allegedly confiscated during the raid conducted in the house of Jovencio Rodrigueza. As provided in the present Constitution, a search, to be valid, must generally be authorized by a search warrant duly issued by the proper government authority. 15 True, in some instances, this Court has allowed government authorities to conduct searches and seizures even without a search warrant. Thus, when the owner of the premises waives his right against such incursion; 16 when the search is incidental to a lawful arrest; 17 when it is made on vessels and aircraft for violation of customs laws; 18 when it is made on automobiles for the purpose of preventing violations of smuggling or immigration laws; 19 when it involves prohibited articles in plain view; 20 or in cases of inspection of buildings and other premises for the enforcement of fire, sanitary and building regulations, 21 a search may be validly made even without a search warrant. In the case at bar, however, the raid conducted by the NARCOM agents in the house of Jovencio Rodrigueza was not authorized by any search warrant. It does not appear, either, that the situation falls under any of the aforementioned cases. Hence, appellant's right against unreasonable search and seizure was clearly violated. The NARCOM agents could not have justified their act by invoking the urgency and necessity of the situation because the testimonies of the prosecution witnesses reveal that the place had already been put under surveillance for quite some time. Had it been their intention to conduct the raid, then they should, because they easily could, have first secured a search warrant during that time. 4. The Court further notes the confusion and ambiguity in the identification of the confiscated marijuana leaves and other prohibited drug paraphernalia presented as evidence against appellant. CIC Taduran, who acted as the poseur buyer, testified that appellant sold him 100 grams of dried marijuana leaves wrapped in a plastic bag. Surprisingly, and no plausible explanation has been advanced therefor, what were submitted to and examined by the PCCL and thereafter utilized as evidence against the appellant were the following items: One (1) red and white colored plastic bag containing the following: Exh. "A"Thirty (30) grams of suspected dried marijuana fruiting tops contained inside a transparent plastic bag.

Exh. "B" Fifty (50) grams of suspected dried marijuana leaves and seeds contained inside a white colored plastic labelled "Robertson". Exh. "C" Four (4) aluminum foils each containing suspected dried marijuana fruiting tops having a total weight of seven grams then further wrapped with a piece of aluminum foil. Exh. "D" Five (5) small transparent plastic bags each containing suspected dried marijuana fruiting tops having a total weight of seventeen grams. Exh. "E" One plastic syringe.
22

Evidently, these prohibited articles were among those confiscated during the so-called follow-up raid in the house of Jovencio Rodrigueza. The unanswered question then arises as to the identity of the marijuana leaves that became the basis of appellant's conviction. 23 In People vs. Rubio, 24 this Court had the occasion to rule that the plastic bag and the dried marijuana leaves contained therein constitute the corpus delicti of the crime. As such, the existence thereof must be proved with certainty and conclusiveness. Failure to do so would be fatal to the cause of the prosecution. 5. It is accepted that, as a rule, minor inconsistencies in the testimony of a witness will not affect his credibility. It even enhances such credibility because it only shows that he has not been rehearsed. 25 However, when the inconsistencies pertain to material and crucial points, the same detract from his overall credibility. The exception, rather than the rule, applies in the case at bar. As correctly pointed out by the Solicitor General, the testimonies of the prosecution witnesses are tainted with serious flaws and material inconsistencies rendering the same incredible. 26 CIC Taduran, in his testimony, said that they had already been conducting surveillance of the place where the buy-bust operation was to take place. It turned out, however, that he did not even know the exact place and the identity of the person from whom he was to buy marijuana leaves. Thus: FISCAL TOLOSA Q What place in Tagas were you able to go (to)? WITNESS A I am not actually familiar in (sic) that place, in Tagas, although we occasionally passed there. Q Now, upon your arrival in Tagas, what did you do that afternoon? A I waited for the suspect because previously, we have already been conducted (sic) surveylance (sic) in the vicinity. Q Upon arrival in Tagas, were you able to see the suspect? A By the road, sir. Q Who was the first person did you see (sic) when you arrived at Tagas? A The first person whom I saw is Samuel Segovia. Q Were you able to talk with this Samuel Segovia? A According to him, we could get some.
27

The same findings go for the testimony of witness Galutan. In his direct examination, he declared that they arrested the three accused all at the same time on the fateful night of July 1, 1987. But, in his cross-examination and as corroborated

by the Joint Affidavit of Arrest 28 submitted by him and Molinawe, it appeared that Lonceras and Segovia were arrested on different times and that appellant Don Rodrigueza was not among those who were arrested. Instead, it was Jovencio Rodrigueza, Don's father, who was picked up at a much later time. With said inconsistencies in sharp focus, we are constrained to give more credibility to the testimony of appellant Rodrigueza. While it is true that appellant's defense amounts to an alibi, and as such is the weakest defense in a criminal prosecution, there are, nonetheless, some evidentiary aspects pointing to the truth in his testimony. Firstly, the Joint Affidavit of Arrest corroborates his testimony that he was not among those who were arrested on the night of July 1, 1987. His co-accused Segovia also testified that appellant Rodrigueza was not with them when they were apprehended by the NARCOM agents. Secondly, the apparent motive of the NARCOM agents in prosecuting the accused was also revealed during the trial of the case. Rebuttal witnesses Gracita Bahillo, sister of appellant, and Hospicio Segovia, father of Samuel Segovia, testified that Sgt. Molinawe, who has since been reportedly dismissed from the service, asked for P10,000.00 from each of them in exchange for the liberty of the accused. 29 This allegation was never refuted by the prosecution. Hence, the rule laid down by this Court that the statements of prosecution witnesses are entitled to full faith and credit 30 has no application in the case at bar. Finally, the Court has repeatedly ruled that to sustain the conviction of the accused, the prosecution must rely on the strength of its own evidence and not on the weakness of the defense. 31 As clearly shown by the evidence, the prosecution has failed to establish its cause. It has not overcome the presumption of innocence accorded to appellant. This being the case, appellant should not be allowed to suffer for unwarranted and imaginary imputations against him. WHEREFORE, the judgment of conviction of the court below is hereby REVERSED and SET ASIDE and accused-appellant Don Rodrigueza is hereby ACQUITTED of the crime charged. It is hereby ordered that he be immediately released from custody unless he is otherwise detained for some other lawful cause. SO ORDERED.

G.R. No. 101837 February 11, 1992 ROLITO GO y TAMBUNTING, petitioner, vs. THE COURT OF APPEALS, THE HON. BENJAMIN V. PELAYO, Presiding Judge, Branch 168, Regional Trial Court, NCJR Pasig, M.M., and PEOPLE OF THE PHILIPPINES, respondents. FELICIANO, J.: According to the findings of the San Juan Police in their Investigation Report, 1 on 2 July 1991, Eldon Maguan was driving his car along Wilson St., San Juan, Metro Manila, heading towards P. Guevarra St. Petitioner entered Wilson St., where it is a one-way street and started travelling in the opposite or "wrong" direction. At the corner of Wilson and J. Abad Santos Sts., petitioner's and Maguan's cars nearly bumped each other. Petitioner alighted from his car, walked over and shot Maguan inside his car. Petitioner then boarded his car and left the scene. A security guard at a nearby restaurant was able to take down petitioner's car plate number. The police arrived shortly thereafter at the scene of the shooting and there retrieved an empty shell and one round of live ammunition for a 9 mm caliber pistol. Verification at the Land Transportation Office showed that the car was registered to one Elsa Ang Go. The following day, the police returned to the scene of the shooting to find out where the suspect had come from; they were informed that petitioner had dined at Cravings Bake Shop shortly before the shooting. The police obtained a facsimile or impression of the credit card used by petitioner from the cashier of the bake shop. The security guard of the bake shop was shown a picture of petitioner and he positively identified him as the same person who had shot Maguan. Having established that the assailant was probably the petitioner, the police launched a manhunt for petitioner. On 8 July 1991, petitioner presented himself before the San Juan Police Station to verify news reports that he was being hunted by the police; he was accompanied by two (2) lawyers. The police forthwith detained him. An eyewitness to the shooting, who was at the police station at that time, positively identified petitioner as the gunman. That same day, the police promptly filed a complaint for frustrated homicide 2 against petitioner with the Office of the Provincial Prosecutor of Rizal. First Assistant Provincial Prosecutor Dennis Villa Ignacio ("Prosecutor") informed petitioner, in the presence of his lawyers, that he could avail himself of his right to preliminary investigation but that he must first sign a waiver of the provisions of Article 125 of the Revised Penal Code. Petitioner refused to execute any such waiver. On 9 July 1991, while the complaint was still with the Prosecutor, and before an information could be filed in court, the victim, Eldon Maguan, died of his gunshot wound(s). Accordingly, on 11 July 1991, the Prosecutor, instead of filing an information for frustrated homicide, filed an information for murder 3 before the Regional Trial Court. No bail was recommended. At the bottom of the information, the Prosecutor certified that no preliminary investigation had been conducted because the accused did not execute and sign a waiver of the provisions of Article 125 of the Revised Penal Code. In the afternoon of the same day, 11 July 1991, counsel for petitioner filed with the Prosecutor an omnibus motion for immediate release and proper preliminary investigation, 4 alleging that the warrantless arrest of petitioner was unlawful and that no preliminary investigation had been conducted before the information was filed. Petitioner also prayed that he be released on recognizance or on bail. Provincial Prosecutor Mauro Castro, acting on the omnibus motion, wrote on the

last page of the motion itself that he interposed no objection to petitioner being granted provisional liberty on a cash bond of P100,000.00. On 12 July 1991, petitioner filed an urgent ex-parte motion for special raffle 5 in order to expedite action on the Prosecutor's bail recommendation. The case was raffled to the sala of respondent Judge, who, on the same date, approved the cash bond 6 posted by petitioner and ordered his release. 7 Petitioner was in fact released that same day. On 16 July 1991, the Prosecutor filed with the Regional Trial Court a motion for leave to conduct preliminary investigation 8 and prayed that in the meantime all proceedings in the court be suspended. He stated that petitioner had filed before the Office of the Provincial Prosecutor of Rizal an omnibus motion for immediate release and preliminary investigation, which motion had been granted by Provincial Prosecutor Mauro Castro, who also agreed to recommend cash bail of P100,000.00. The Prosecutor attached to the motion for leave a copy of petitioner's omnibus motion of 11 July 1991. Also on 16 July 1991, the trial court issued an Order 9 granting leave to conduct preliminary investigation and cancelling the arraignment set for 15 August 1991 until after the prosecution shall have concluded its preliminary investigation. On 17 July 1991, however, respondent Judge motu proprio issued an Order, 10 embodying the following: (1) the 12 July 1991 Order which granted bail was recalled; petitioner was given 48 hours from receipt of the Order to surrender himself; (2) the 16 July 1991 Order which granted leave to the prosecutor to conduct preliminary investigation was recalled and cancelled; (3) petitioner's omnibus motion for immediate release and preliminary investigation dated 11 July 1991 was treated as a petition for bail and set for hearing on 23 July 1991. On 19 July 1991, petitioner filed a petition for certiorari, prohibition and mandamus before the Supreme Court assailing the 17 July 1991 Order, contending that the information was null and void because no preliminary investigation had been previously conducted, in violation of his right to due process. Petitioner also moved for suspension of all proceedings in the case pending resolution by the Supreme Court of his petition; this motion was, however, denied by respondent Judge. On 23 July 1991, petitioner surrendered to the police. By a Resolution dated 24 July 1991, this Court remanded the petition for certiorari, prohibition and mandamus to the Court of Appeals. On 16 August 1991, respondent Judge issued an order in open court setting the arraignment of petitioner on 23 August 1991. On 19 August 1991, petitioner filed with the Court of Appeals a motion to restrain his arraignment. On 23 August 1991, respondent judge issued a Commitment Order directing the Provincial Warden of Rizal to admit petitioner into his custody at the Rizal Provincial Jail. On the same date, petitioner was arraigned. In view, however, of his refusal to enter a plea, the trial court entered for him a plea of not guilty. The Trial court then set the criminal case for continuous hearings on 19, 24 and 26 September; on 2, 3, 11 and 17 October; and on 7, 8, 14, 15, 21 and 22 November 1991. 11 On 27 August 1991, petitioner filed a petition for habeas corpus 12 in the Court of Appeals. He alleged that in view of public respondent's failure to join issues in the petition for certiorari earlier filed by him, after the lapse of more than a month, thus prolonging his detention, he was entitled to be released on habeas corpus. On 30 August 1991, the Court of Appeals issued the writ of habeas corpus. 13 The petition for certiorari, prohibition and mandamus, on the one hand, and the petition for habeas corpus, upon the other, were subsequently consolidated in the Court of Appeals. The Court of Appeals, on 2 September 1991, issued a resolution denying petitioner's motion to restrain his arraignment on the ground that that motion had become moot and academic.

On 19 September 1991, trial of the criminal case commenced and the prosecution presented its first witness. On 23 September 1991, the Court of Appeals rendered a consolidated decision following grounds:
14

dismissing the two (2) petitions, on the

a. Petitioner's warrantless arrest was valid because the offense for which he was arrested and charged had been "freshly committed." His identity had been established through investigation. At the time he showed up at the police station, there had been an existing manhunt for him. During the confrontation at the San Juan Police Station, one witness positively identified petitioner as the culprit. b. Petitioner's act of posting bail constituted waiver of any irregularity attending his arrest. He waived his right to preliminary investigation by not invoking it properly and seasonably under the Rules. c. The trial court did not abuse its discretion when it issued the 17 July 1991 Order because the trial court had the inherent power to amend and control its processes so as to make them conformable to law and justice. d. Since there was a valid information for murder against petitioner and a valid commitment order (issued by the trial judge after petitioner surrendered to the authorities whereby petitioner was given to the custody of the Provincial Warden), the petition for habeas corpus could not be granted. On 3 October 1991, the prosecution presented three (3) more witnesses at the trial. Counsel for petitioner also filed a "Withdrawal of Appearance" 15 with the trial court, with petitioner's conformity. On 4 October 1991, the present Petition for Review on Certiorari was filed. On 14 October 1991, the Court issued a Resolution directing respondent Judge to hold in abeyance the hearing of the criminal case below until further orders from this Court. In this Petition for Review, two (2) principal issues need to be addressed: first, whether or not a lawful warrantless arrest had been effected by the San Juan Police in respect of petitioner Go; and second, whether petitioner had effectively waived his right to preliminary investigation. We consider these issues seriatim. In respect of the first issue, the Solicitor General argues that under the facts of the case, petitioner had been validly arrested without warrant. Since petitioner's identity as the gunman who had shot Eldon Maguan on 2 July 1991 had been sufficiently established by police work, petitioner was validly arrested six (6) days later at the San Juan Police Station. The Solicitor General invokes Nazareno v. Station Commander, etc., et al., 16 one of the seven (7) cases consolidated with In the Matter of the Petition for Habeas Corpus of Roberto Umil, etc., v. Ramos, et al. 17 where a majority of the Court upheld a warrantees arrest as valid although effected fourteen (14) days after the killing in connection with which Nazareno had been arrested. Accordingly, in the view of the Solicitor General, the provisions of Section 7, Rule 112 of the Rules of Court were applicable and because petitioner had declined to waive the provisions of Article 125 of the Revised Penal Code, the Prosecutor was legally justified in filing the information for murder even without preliminary investigation. On the other hand, petitioner argues that he was not lawfully arrested without warrant because he went to the police station six (6) days after the shooting which he had allegedly perpetrated. Thus, petitioner argues, the crime had not been "just committed" at the time that he was arrested. Moreover, none of the police officers who arrested him had been an eyewitness to the shooting of Maguan and accordingly none had the "personal knowledge" required for the lawfulness of a warrantees arrest. Since there had been no lawful warrantless arrest. Section 7, Rule 112 of the Rules of Court which establishes the only exception to the right to preliminary investigation, could not apply in respect of petitioner. The reliance of both petitioner and the Solicitor General upon Umil v. Ramos is, in the circumstances of this case, misplaced. In Umil v. Ramos, by an eight-to-six vote, the Court sustained the legality of the warrantless arrests of petitioners made from one (1) to fourteen days after the actual commission of the offenses, upon the ground that such offenses constituted "continuing crimes." Those offenses were subversion, membership in an outlawed organization like the New People's Army, etc. In the instant case, the offense for which petitioner was arrested was murder, an offense

which was obviously commenced and completed at one definite location in time and space. No one had pretended that the fatal shooting of Maguan was a "continuing crime." Secondly, we do not believe that the warrantees "arrest" or detention of petitioner in the instant case falls within the terms of Section 5 of Rule 113 of the 1985 Rules on Criminal Procedure which provides as follows: Sec. 5 Arrest without warrant; when lawful. A peace officer or a private person may, without warrant, arrest a person: (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceed against in accordance with Rule 112, Section 7. Petitioner's "arrest" took place six (6) days after the shooting of Maguan. The "arresting" officers obviously were not present, within the meaning of Section 5(a), at the time petitioner had allegedly shot Maguan. Neither could the "arrest" effected six (6) days after the shooting be reasonably regarded as effected "when [the shooting had] in fact just been committed" within the meaning of Section 5(b). Moreover, none of the "arresting" officers had any "personal knowledge" of facts indicating that petitioner was the gunman who had shot Maguan. The information upon which the police acted had been derived from statements made by alleged eyewitnesses to the shooting one stated that petitioner was the gunman; another was able to take down the alleged gunman's car's plate number which turned out to be registered in petitioner's wife's name. That information did not, however, constitute "personal knowledge." 18 It is thus clear to the Court that there was no lawful warrantless arrest of petitioner within the meaning of Section 5 of Rule 113. It is clear too that Section 7 of Rule 112, which provides: Sec. 7 When accused lawfully arrested without warrant. When a person is lawfully arrested without a warrant for an offense cognizable by the Regional Trial Court the complaint or information may be filed by the offended party, peace officer or fiscal without a preliminary investigation having been first conducted, on the basis of the affidavit of the offended party or arresting office or person However, before the filing of such complaint or information, the person arrested may ask for a preliminary investigation by a proper officer in accordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, as amended, with the assistance of a lawyer and in case of non-availability of a lawyer, a responsible person of his choice. Notwithstanding such waiver, he may apply for bail as provided in the corresponding rule and the investigation must be terminated within fifteen (15) days from its inception.

If the case has been filed in court without a preliminary investigation having been first conducted, the accused may within five (5) days from the time he learns of the filing of the information, ask for a preliminary investigation with the same right to adduce evidence in his favor in the manner prescribed in this Rule. (Emphasis supplied)
is also not applicable. Indeed, petitioner was not arrested at all. When he walked into San Juan Police Station, accompanied by two (2) lawyers, he in fact placed himself at the disposal of the police authorities. He did not state that he was "surrendering" himself, in all probability to avoid the implication he was admitting that he had slain Eldon Maguan or that he was otherwise guilty of a crime. When the police filed a complaint for frustrated homicide with the Prosecutor, the latter should have immediately scheduled a preliminary investigation to determine whether there was probable cause for charging petitioner in court for the killing of Eldon Maguan. Instead, as noted earlier, the Prosecutor proceed under the erroneous supposition that Section 7 of Rule 112 was applicable and required petitioner to waive the provisions of Article 125 of the Revised Penal Code as a condition for carrying out a preliminary investigation. This was

substantive error, for petitioner was entitled to a preliminary investigation and that right should have been accorded him without any conditions. Moreover, since petitioner had not been arrested, with or without a warrant, he was also entitled to be released forthwith subject only to his appearing at the preliminary investigation. Turning to the second issue of whether or not petitioner had waived his right to preliminary investigation, we note that petitioner had from the very beginning demanded that a preliminary investigation be conducted. As earlier pointed out, on the same day that the information for murder was filed with the Regional Trial Court, petitioner filed with the Prosecutor an omnibus motion for immediate release and preliminary investigation. The Solicitor General contends that that omnibus motion should have been filed with the trial court and not with the Prosecutor, and that the petitioner should accordingly be held to have waived his right to preliminary investigation. We do not believe that waiver of petitioner's statutory right to preliminary investigation may be predicated on such a slim basis. The preliminary investigation was to be conducted by the Prosecutor, not by the Regional Trial Court. It is true that at the time of filing of petitioner's omnibus motion, the information for murder had already been filed with the Regional Trial Court: it is not clear from the record whether petitioner was aware of this fact at the time his omnibus motion was actually filed with the Prosecutor. In Crespo v. Mogul, 19 this Court held: The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists to warranting the prosecution of the accused is terminated upon the filing of the information in the proper court. In turn, as above stated, the filing of said information sets in motion the criminal action against the accused in Court. Should the fiscal find it proper to conduct a reinvestigation of the case, at such stage, the permission of the Court must be secured. After such reinvestigation the finding and recommendations of the fiscal should be submitted to the Court for appropriate action. While it is true that the fiscal has the quasi-judicial discretion to determine whether or not a criminal case should be filed in court or not, once the case had already been brought to Court whatever disposition the fiscal may feel should be proper in the case thereafter should be addressed for the consideration of the Court. The only qualification is that the action of the Court must not impair the substantial rights of the accused., or the right of the People to due process of law. xxx xxx xxx The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case [such] as its dismissal or the conviction or acquittal of the accused rests in the sound discretion of the Court. Although the fiscal retains the direction and control of the prosecution of criminal cases even while the case is already in Court he cannot impose his opinion on the trial court. The Court is the best and sole judge on what to do with the case before it. . . . 20 (Citations omitted; emphasis supplied) Nonetheless, since petitioner in his omnibus motion was asking for preliminary investigation and not for a reinvestigation (Crespo v. Mogul involved a re-investigation), and since the Prosecutor himself did file with the trial court, on the 5th day after filing the information for murder, a motion for leave to conduct preliminary investigation (attaching to his motion a copy of petitioner's omnibus motion), we conclude that petitioner's omnibus motion was in effect filed with the trial court. What was crystal clear was that petitioner did ask for a preliminary investigation on the very day that the information was filed without such preliminary investigation, and that the trial court was five (5) days later apprised of the desire of the petitioner for such preliminary investigation. Finally, the trial court did in fact grant the Prosecutor's prayer for leave to conduct preliminary investigation. Thus, even on the (mistaken) supposition apparently made by the Prosecutor that Section 7 of Rule 112 of the Revised Court was applicable, the 5-day reglementary period in Section 7, Rule 112 must be held to have been substantially complied with. We believe and so hold that petitioner did not waive his right to a preliminary investigation. While that right is statutory rather than constitutional in its fundament, since it has in fact been established by statute, it is a component part of due process in criminal justice. 21 The right to have a preliminary investigation conducted before being bound over to 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. The accused in a criminal trial is inevitably exposed to prolonged anxiety, aggravation, humiliation, not to speak of expense; the right to an opportunity to avoid a process painful to any one save, perhaps, to hardened criminals, is a valuable right. To deny petitioner's claim to a preliminary investigation would be to deprive him the full measure of his right to due process. The question may be raised whether petitioner still retains his right to a preliminary investigation in the instant case considering that he was already arraigned on 23 August 1991. The rule is that the right to preliminary investigation is

waived when the accused fails to invoke it before or at the time of entering a plea at arraignment. 22 In the instant case, petitioner Go had vigorously insisted on his right to preliminary investigation before his arraignment. At the time of his arraignment, petitioner was already before the Court of Appeals on certiorari, prohibition and mandamus precisely asking for a preliminary investigation before being forced to stand trial. Again, in the circumstances of this case, we do not believe that by posting bail petitioner had waived his right to preliminary investigation. In People v. Selfaison, 23 we did hold that appellants there had waived their right to preliminary investigation because immediately after their arrest, they filed bail and proceeded to trial "without previously claiming that they did not have the benefit of a preliminary investigation." 24 In the instant case, petitioner Go asked for release on recognizance or on bail and for preliminary investigation in one omnibus motion. He had thus claimed his right to preliminary investigation before respondent Judge approved the cash bond posted by petitioner and ordered his release on 12 July 1991. Accordingly, we cannot reasonably imply waiver of preliminary investigation on the part of petitioner. In fact, when the Prosecutor filed a motion in court asking for leave to conduct preliminary investigation, he clearly if impliedly recognized that petitioner's claim to preliminary investigation was a legitimate one. We would clarify, however, that contrary to petitioner's contention the failure to accord preliminary investigation, while constituting a denial of the appropriate and full measure of the statutory process of criminal justice, did not impair the validity of the information for murder nor affect the jurisdiction of the trial court. 25 It must also be recalled that the Prosecutor had actually agreed that petitioner was entitled to bail. This was equivalent to an acknowledgment on the part of the Prosecutor that the evidence of guilt then in his hands was not strong. Accordingly, we consider that the 17 July 1991 order of respondent Judge recalling his own order granting bail and requiring petitioner to surrender himself within forty-eight (48) hours from notice, was plainly arbitrary considering that no evidence at all and certainly no new or additional evidence had been submitted to respondent Judge that could have justified the recall of his order issued just five (5) days before. It follows that petitioner was entitled to be released on bail as a matter of right. The final question which the Court must face is this: how does the fact that, in the instant case, trial on the merits has already commenced, the Prosecutor having already presented four (4) witnesses, impact upon, firstly, petitioner's right to a preliminary investigation and, secondly, petitioner's right to be released on bail? Does he continue to be entitled to have a preliminary investigation conducted in respect of the charge against him? Does petitioner remain entitled to be released on bail? Turning first to the matter of preliminary investigation, we consider that petitioner remains entitled to a preliminary investigation although trial on the merits has already began. Trial on the merits should be suspended or held in abeyance and a preliminary investigation forthwith accorded to petitioner. 26 It is true that the Prosecutor might, in view of the evidence that he may at this time have on hand, conclude that probable cause exists; upon the other hand, the Prosecutor conceivably could reach the conclusion that the evidence on hand does not warrant a finding of probable cause. In any event, the constitutional point is that petitioner was not accorded what he was entitled to by way of procedural due process. 27 Petitioner was forced to undergo arraignment and literally pushed to trial without preliminary investigation, with extraordinary haste, to the applause from the audience that filled the courtroom. If he submitted to arraignment at trial, petitioner did so "kicking and screaming," in a manner of speaking . During the proceedings held before the trial court on 23 August 1991, the date set for arraignment of petitioner, and just before arraignment, counsel made very clear petitioner's vigorous protest and objection to the arraignment precisely because of the denial of preliminary investigation. 28 So energetic and determined were petitioner's counsel's protests and objections that an obviously angered court and prosecutor dared him to withdraw or walkout, promising to replace him with counsel de oficio. During the trial, before the prosecution called its first witness, petitioner through counsel once again reiterated his objection to going to trial without preliminary investigation: petitioner's counsel made of record his "continuing objection." 29 Petitioner had promptly gone to the appellate court on certiorari and prohibition to challenge the lawfulness of the procedure he was being forced to undergo and the lawfulness of his detention. 30 If he did not walk out on the trial, and if he cross-examined the prosecution's witnesses, it was because he was extremely loath to be represented by counsel de oficio selected by the trial judge, and to run the risk of being held to have waived also his right to use what is frequently the only test of truth in the judicial process. In respect of the matter of bail, we similarly believe and so hold that petitioner remains entitled to be released on bail as a matter of right. Should the evidence already of record concerning petitioner's guilt be, in the reasonable belief of the Prosecutor, strong, the Prosecutor may move in the trial court for cancellation of petitioner's bail. It would then be up to

the trial court, after a careful and objective assessment of the evidence on record, to grant or deny the motion for cancellation of bail. To reach any other conclusions here, that is, to hold that petitioner's rights to a preliminary investigation and to bail were effectively obliterated by evidence subsequently admitted into the record would be to legitimize the deprivation of due process and to permit the Government to benefit from its own wrong or culpable omission and effectively to dilute important rights of accused persons well-nigh to the vanishing point. It may be that to require the State to accord petitioner his rights to a preliminary investigation and to bail at this point, could turn out ultimately to be largely a ceremonial exercise. But the Court is not compelled to speculate. And, in any case, it would not be idle ceremony; rather, it would be a celebration by the State of the rights and liberties of its own people and a re-affirmation of its obligation and determination to respect those rights and liberties. ACCORDINGLY, the Court resolved to GRANT the Petition for Review on Certiorari. The Order of the trial court dated 17 July 1991 is hereby SET ASIDE and NULLIFIED, and the Decision of the Court of Appeals dated 23 September 1991 hereby REVERSED. The Office of the Provincial Prosecutor is hereby ORDERED to conduct forthwith a preliminary investigation of the charge of murder against petitioner Go, and to complete such preliminary investigation within a period of fifteen (15) days from commencement thereof. The trial on the merits of the criminal case in the Regional Trial Court shall be SUSPENDED to await the conclusion of the preliminary investigation. Meantime, petitioner is hereby ORDERED released forthwith upon posting of a cash bail bond of One Hundred Thousand Pesos (P100,000.00). This release shall be without prejudice to any lawful order that the trial court may issue, should the Office of the Provincial Prosecutor move for cancellation of bail at the conclusion of the preliminary investigation. No pronouncement as to costs. This Decision is immediately executory. SO ORDERED.

G.R. No. 123980

August 30, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. MANUEL CALIMLIM y MUYANO, accused-appellant. QUISUMBING, J .: Before us on automatic review is the joint decision1 of the Regional Trial Court, First Judicial Region, Branch 46, Urdaneta, Pangasinan finding accused-appellant Manuel Calimlim guilty of four (4) counts of rape based on similarlyworded informations in the following criminal cases:

Criminal Case No. U-8525:

That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW.2

Criminal Case No. U-8638:

That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW.3

Criminal Case No. U-8639:

That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW.4

Criminal Case No. U-8640:

That on or about the 2nd day of April, 1995, at the Poblacion of the municipality of Manaoag, province of Pangasinan and within the jurisdiction of this Honorable Court, the said accused, by means of force and intimidation, did then and

there wilfully, unlawfully and feloniously have carnal knowledge with the undersigned complainant, a minor, against her will. CONTRARY TO LAW.5 Appellant pleaded not guilty to the charges. Thereafter, trial on the merits followed. The prosecution's case was mainly based on the testimony of private complainant, LANIE S. LIMIN. According to her, she was fourteen (14) years old and had been living with the family of Kagawad Manny Ferrer and Cresencia Ferrer (Ferrers) for the past three years. The night of April 2, 1995, she was left alone in one of the two houses of the Ferrers since her usual companions, the sons of Manny and Cresencia, were out for the night. The Ferrers were in the other house about 15 meters away. At around 11:30 P.M., she was awakened when she heard somebody, later identified as appellant, enter her room. Appellant immediately poked a knife at the left side of her neck and said "Accompany me because I killed my wife."6 She was then dragged to the pig pen, about 8-9 meters away from the place where she slept. Afterwards, she was again forcibly taken back to her room, then to her cousin's room and to the kitchen. In each of these places, appellant forcibly had sexual intercourse with her while he poked a knife against her neck. According to her, she first recognized appellant while they were in the kitchen when she was able to remove the cloth covering his face. She stated that she knew appellant because she had seen him always following her whenever she went to school. After the fourth intercourse, appellant threatened that he would kill her if she reported the incidents. Despite the threat, she told her cousin, Manicris Ferrer,7 who then reported the matter to Dr. Nancy Quinto who lived nearby.8 On crossexamination, complainant stated that she did not struggle nor shout nor resist because she was afraid that appellant might kill her.9 The second witness was CRESENCIA FERRER, who testified that the victim was her niece. Lanie's grandmother was the sister of her mother. Cresencia testified that Lanie was born in Sexmoan, Pampanga, on June 13, 1981, and became her ward starting October 25, 1993. On the evening of April 2, 1995, Cresencia said she was in her shop in front of their house. Lanie was left alone in the other house because her usual companions, the children of the Ferrers, all went to a disco. The other children, Christian and Manicris, were inside their shop with her and her husband. Cresencia recalled that she was still awake at 11:30 P.M. working on some clothing materials. She did not see or notice anything unusual that night. The following morning, she tried to get Lanie to rise but the latter did not want to. Lanie was crying so she decided to leave Lanie alone. At around 8:00 A.M., Cresencia's daughter Manicris called her from outside the shop to inform her that Dr. Quinto was there to talk to her. Dr. Quinto and Manicris told Cresencia that Lanie had been raped. Cresencia said that when she confronted Lanie about it, Lanie narrated her ordeal and pointed to appellant as her rapist. The women brought Lanie to the Community Hospital in Baritao where she was medically examined. Then they reported the matter to the police.10 On cross-examination, Cresencia recalled that around 3:00 A.M., April 3, 1995, the wee hours after the alleged rape, she heard their gate opening because of the arrival of her three sons from the disco.11 SPO1 MARIO SURATOS testified that he was the duty officer when the rapes were reported to their station by Kagawad Ferrer.12 It was not the victim herself who reported the rapes.13 DR. RICARDO FERRER, who conducted the physical examination on Lanie, testified that there was minimal vaginal bleeding and there were lacerations in the hymen, the positions of which were at 9:00 o'clock, 6:00 o'clock and 3:00 o'clock, all fresh, indicating that there were insertions within the past 24 hours. There was also a whitish vaginal discharge which was found positive for spermatozoa.14 During cross-examination, Dr. Ferrer stated that the lacerations found inside the complainant's vagina could have been caused by hard objects other than a penis. He said the lacerations could have also been caused by fingers or a thumb, but would unlikely be the victim's since she would have stopped once she felt the pain. The doctor also stated that it was possible that the spermatozoa was artificially placed inside the vagina, but that it was not possible to determine the identity of the person who emitted it.15 Appellant MANUEL CALIMLIM denied the accusations. He claimed that he was in his house on the evening of April 2, 1995, and that he went to sleep at 10:00 P.M. He recalled that he even had sex with his wife in the early morning of April 3, 1995. He averred that he was just being used as a scapegoat by the Ferrers who hated him since he did not vote

for Ferrer who was a candidate during the last elections. He also surmised that the Ferrers could have been irked when appellant allowed the construction of a waiting shed in front of his house. He asserted that as a hollow blocks maker, a physically draining job, he was often tired and weak and had little strength to engage in sex for more than once a month.16 ERLINDA PIMENTEL CALIMLIM, wife of accused, testified that on the night of April 2, 1995, she was with the accused, who slept from 10:00 P.M. until 5:00 A.M. the following morning.17 MARLENE P. CALIMLIM, daughter of appellant, testified that her father was with them on the evening of April 2, 1995 until the following morning. She remembered that her parents slept at 10:00 P.M. that night and she sensed they even engaged in sexual intercourse at around 2:00 A.M. of April 3, 1995. She added that it was possible the Ferrers were angry at her father because her father did not vote for Ferrer during the last elections and also because of their disagreement about the waiting shed.18 On November 17, 1995, the trial court rendered its joint decision finding appellant guilty of all charges. Appellant was sentenced to death for each count of rape. The similarly-worded dispositive portions of said decision reads as follows: WHEREFORE, this Court finds the accused MANUEL CALIMLIM y Muyano:

WITH RESPECT TO CRIMINAL CASE NO. U-8525:

GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of nocturnity and disguise, hereby sentences him to suffer the supreme penalty of DEATH, to pay the complainant LANIE S. LIMIN the sum of P50,000.00 as damages, and to pay the costs.

IN CONNECTION WITH CRIMINAL CASE NO. U-8638:

GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of dwelling, nighttime and disguise, hereby sentences him to suffer the supreme penalty of DEATH, to pay the offended party LANIE S. LIMIN the amount of P50,000.00 as damages, and to pay the costs.

WITH REGARDS TO CRIMINAL CASE NO. U-8639:

GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of dwelling, nighttime and disguise, hereby sentences him to suffer the supreme penalty of death, to pay the victim the sum of P50,000.00 as damages, and to pay the costs.

AS TO CRIMINAL CASE NO. U-8640:

GUILTY beyond reasonable doubt of the crime of RAPE defined and penalized under Republic Act No. 7659, the offense having been committed with the attendant circumstance of "with the use of a deadly weapon" and with the generic aggravating circumstances of dwelling, nighttime and disguise, hereby sentences him to suffer the supreme penalty of DEATH, to pay the complainant the amount of P50,000.00 as damages, and to pay the costs. "The law is harsh, but that is the law." "Dura lex, sed lex, it is said." SO ORDERED.19 In his brief, appellant assigns the following errors allegedly committed by the trial court:

I THAT THE SAID HONORABLE REGIONAL TRIAL COURT GRAVELY ERRED IN NOT FINDING THE ACCUSED NOT GUILTY OF THE CRIME AS CHARGED II THAT THE HONORABLE REGIONAL TRIAL COURT MISCONVICTED SAID ACCUSED-APPELLANT FOR FOUR (4) COUNTS OF RAPE CONTRARY TO THE FINDINGS OF THE ATTENDING PHYSICIAN WHO PHYSICALLY EXAMINED THE ALLEGED VICTIM THAT IF EVER THERE WAS A CRIME OF RAPE COMMITTED IT COULD ONLY BE ONCE III THAT THE HONORABLE REGIONAL TRIAL COURT WAS GROSSLY MISTAKEN IN NOT APPRECIATING THE MAIN DEFENSE OF SAID ACCUSED-APPELLANT THAT THE NARRATION OF FACTS AS ORCHESTRATED AND TESTIFIED TO BY ALLEGED VICTIM DEFIES IMAGINATION IV AND THE FOREMOST, THE HONORABLE COURT OVERLOOKED THE CONSTITUTIONAL RIGHTS OF THE ACCUSEDAPPELLANT, SUCH AS THE REQUIREMENT OF GIVING A CHANCE TO ACCUSED-APPELLANT TO FILE COUNTERAFFIDAVITS AND THAT OF HIS WITNESSES; HIS BEING IMMEDIATELY ARRESTED WITHOUT THE REQUIRED WARRANT OF ARREST; AND WHEN ARRESTED, WAS NOT ACCORDED THE RIGHT TO COUNSEL WHEN BROUGHT TO THE PNP INVESTIGATIVE BODY20 In sum, the issues here involve the credibility of witnesses, the denial of appellant's constitutional rights, the sufficiency of the evidence for his conviction, and the propriety of the death sentence imposed on him. Appellant raises the defense of denial and alibi while he challenges complainant's credibility. He insists that he was at home during the time the alleged crimes were perpetrated. He also argues that complainant's story is unlikely because a man like him would not be able to consummate four (4) rapes in just one night and within a short time. He asserts that he is just being made a fall guy by complainant's guardians who hold a grudge against him. Appellant also points out that the testimony of complainant shows that she did not exert any tenacious resistance, implying that if there was intercourse, she had consented to it. Appellant also claims he was denied his right against warrantless arrests, his right to remain silent, and his right to due process. For example, he was not allowed to submit any counter-affidavit during the investigation of his case.21 The Office of the Solicitor General, for the State, stresses that the testimony of complainant deserves full faith and credit. There is no showing that she was impelled by any improper motive in filing her complaint. A young barrio lass would not fabricate a charge of sexual abuse and subject herself to the humiliation of a public trial unless she was motivated by a strong desire to bring her abuser to justice. The victim did not show tenacious resistance since, being a young girl, she was easily awed and overpowered by appellant. Her lack of resistance could also be attributed to paralyzing fear she felt at the time of her rape. Contrary to appellant's claim, there was no impossibility nor improbability about complainant's story. The findings and evaluation of the trial court regarding the credibility of the prosecution witnesses should be given great respect since the trial court was in the best position to observe the demeanor, attitude and manner of the witnesses. Finally, said the OSG, the defense of denial and alibi presented by the appellant cannot prevail over the positive identification made by the complainant that appellant was the rapist. The OSG recommends, however, that the imposable penalty should be reclusion perpetua, and not death, because the informations charging appellant of rape did not allege the qualifying circumstance of "use of a deadly weapon". The OSG also recommends an increase in the damages to be awarded to the complainant.22 In reviewing rape cases, this Court has three guiding principles: (1) an accusation for rape can be made with facility; it is difficult to prove but even more difficult for the person accused, though innocent, to disprove it; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved, the testimony of the complainant must

be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merit, and the prosecution cannot be allowed to draw strength from the weakness of the evidence for the defense.23 Nevertheless, the Court has ruled that in rape cases, the accused may be convicted solely on the testimony of the victim, provided that such testimony is credible, natural, convincing and consistent with human nature and the normal course of things.24 In evaluating the credibility of witnesses, much weight and great respect is given to the findings made by the trial court25 since it has the unique opportunity to observe the demeanor of the witnesses first-hand under grilling crossexamination. Hence, findings of the trial court on the credibility of witnesses will not be disturbed on appeal unless some facts or circumstances of weight have been overlooked, misapprehended or misinterpreted so as to materially affect the disposition of the case.26 In this case, we find that complainant has no reason to falsely accuse appellant. Appellant avers that complainant was influenced by the Ferrers to falsely accuse him. He also insinuates that complainant was protecting the real offenders, the children of the Ferrers, out of blind loyalty to them. However, both averment and insinuation are not sufficiently backed up by persuasive proof. They are mere darts in the dark, pathetic ploys that remain preposterous propositions offered up by the defense. It is rather unseemly as well as unnatural for complainant to subject herself to public ridicule, exonerate her real ravishers, and vent her fury only against appellant. It would have been easier for her to endure her shame in silence rather than invent a sordid story if it were not true. As we have consistently held, a young girl would not concoct a rape charge, allow the examination of her private parts, then publicly disclose that she has been sexually abused, if her motive were other than to fight for her honor and bring to justice the person who defiled her.27 That she was prevailed upon by the Ferrers to fabricate the rape charge, just to get even with appellant because he did not vote for Ferrer, is too inane a tale to inspire belief. Complainant's testimony on record is too candid and straightforward to be mere fabrication. She bared details which could not be concocted easily even by an ingenious or imaginative narrator. She cried for several minutes,28 while she testified, enhancing her testimony's credibility.29 Absent any ill-motive to falsely accuse appellant, we hold that complainant's testimony deserves full faith and credence.30 The defense capitalizes on the fact that complainant did not tenaciously resist the assault on her. Physical resistance, however, need not be established in rape when the victim is intimidated, threatened by a knife.31 Intimidation must be viewed in the light of the victim's perception and judgment at the time of the commission of the crime of rape and not by any hard and fast rule.32 In this case, the victim was a minor while her attacker was an armed man boasting he had just killed his wife. Indeed a rape victim need not show that she would fight unto death,33 resisting a brutal crime. What is essential in this prosecution of her ravisher, is evidence showing that she did not consent to the sexual act, while he had used force and intimidation in achieving his evil desire.34 Further, the defense wants to make us believe that it was not possible for appellant to consummate four (4) acts of rape in just one night. This proposition deserves scant consideration. Rape is an act of depravity and lust. There is no rhyme not reason for beastly acts. But negative testimony on mere possibilities cannot outweigh positive testimony of complainant on the number of sexual violations she endured. Now we come to the defense of alibi which appellant offers coupled with outright denial. Corroborated mainly by his close relatives, this defense is less than persuasive and piteously dubious.35 It is not credible because it is tainted with bias, especially in this case where the witnesses are the wife and the daughter of appellant.36 Worse, the testimonies of said witnesses were not even consistent with one another. Note that the wife, Erlinda, testified that the appellant slept from 10:00 P.M. of April 2, 1995 until 5:00 A.M. the following morning.37 But the daughter, Marlene, testified that her parents were awake and perhaps made love at around 2:00 A.M. of April 3, 1995.38 Erlinda said she did not know if her husband woke up during the night, after she mentioned she has a light sleep and would have noticed if he did.39 Inconsistency in the statements of the defense witnesses, while not necessarily an indication that they were lying, suggests that both mother and daughter could not recall with precision what happened during the crucial hours of the night of April 2 to early morning of April 3, 1995, but merely included the events that normally happen at around those hours in their household. Ranged against complainant's positive identification of her rapist and her candid, straightforward and convincing testimony, the defense of alibi raised by appellant must surely fall for lack of merit. More substantially, appellant avers that his arrest violated Section 5 of Rule 113,40 since his arrest was made one day after the crime was committed, but without any judicial warrant, although the police had ample time to get one. This he claims is also in violation of Article III, Sec. 2 of the Constitution.41 But here it will be noted that appellant entered a plea of not guilty to each of the informations charging him of rape. Thus, he had effectively waived his right to question any

irregularity which might have accompanied his arrest and the unlawful restraint of his liberty.42 This is clear from a reading of Section 9 of Rule 117 of the Revised Rules of Criminal Procedure:43 Sec. 9. Failure to move to quash or to allege any ground therefor. The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of any objections except those based on the grounds provided for in paragraphs (a), (b), (g) and (i) of section 3 of this Rule. (Italics supplied) Given the circumstances of his case now, the exceptions do not apply here and we are constrained to rule that appellant is estopped from raising the issue of the legality of his arrest. Moreover, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after a trial free from error.44 The defense's claim of warrantless arrest which is illegal cannot render void all other proceedings including those leading to the conviction of the appellant, nor can the state be deprived of its right to convict the guilty when all the facts on record point to his culpability.45 However, we find one point in appellant's favor. As recommended by the Office of the Solicitor General, the penalty imposable on the appellant for the rapes committed should not be capital punishment. The qualifying circumstance, concerning "use of deadly weapon," was not alleged in the four informations against the appellant. Even if proved during trial, still that circumstance could not be used to aggravate appellant's crime, not having been included in the informations. To do so would violate appellant's right to be informed of the nature and cause of accusation against him. See People vs. Motos, 317 SCRA 96, 119 (1999), which held that where neither the complaint nor the evidence introduced show any qualifying circumstance that would make the offense fall within the category of rape punishable by death, the only penalty that can be properly decreed is the lower indivisible penalty of reclusion perpetua. Further, in People vs. Pailanco, 322 SCRA 790, 804 (2000), we also held that: . . . neither can we impose the death penalty for the second incident of rape when complainant was threatened with a bolo by accused-appellant. Although under Article 355 of the Revised Penal Code, as amended by R.A. No. 7659, the penalty of reclusion perpetua to death is imposable when the rape is committed with the use of a deadly weapon, however, in the case at bar, the use of a deadly weapon during the second incident of rape was not alleged in the information . . . [A] qualifying circumstance may only be taken into account as an ordinary aggravating circumstance when it is not alleged in the information (citing People vs. Entes, 103 SCRA 162). The next lower penalty to death being the single indivisible penalty of reclusion perpetua, only the same may be imposed regardless of the presence of ordinary aggravating circumstances. Conformably to law and jurisprudence, appellant herein can only be convicted of simple rapes committed by using force and intimidation, punishable by reclusion perpetua for each count of rape. Finally, in line with current jurisprudence and considering the need to deter commission of a bestial offense against a minor, aside from the civil indemnity of P50,000.00 for each rape, appellant should be made to pay the additional amounts of P50,000.00 as moral damages and P25,000.00 as exemplary damages for every count of rape.46 WHEREFORE, the decision of the trial court finding the appellant Manuel Calimlim y Muyano GUILTY beyond reasonable doubt of four (4) counts of rape, in Criminal Case Nos. U-8525, U-8638, U-8639, and U-8640 is AFFIRMED, with the MODIFICATION that the penalty imposed upon the appellant is only reclusion perpetua for each count of rape. Further, he is ORDERED to pay private complainant Lanie S. Limin the amount of P50,000.00 as civil indemnity, another P50,000.00 as moral damages, and P25,000.00 as exemplary damages for each count of rape. SO ORDERED.

G.R. No. 74189 May 26, 1993 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO ENRILE Y VILLAROMAN and ROGELIO ABUGATAL Y MARQUEZ, accused-appellants CRUZ, J.: Sentenced to life imprisonment and a fine of P30,000.00 for violation of the Dangerous Drugs Act, Antonio Enrile faults the Regional Trial Court of Quezon City for convicting him. 1 His co-accused, Rogelio Abugatal, was killed in an attempted jailbreak and this appeal is dismissed as to him. 2 We deal here only with Enrile. The evidence for the prosecution showed that at about half past six in the evening of October 25, 1985, a buy-bust team composed of Pat. Jaime Flores and Pat. Wilson Rances of the Quezon City Police Anti-Narcotics Unit was dispatched to entrap Rogelio Abugatal at Roosevelt Avenue in San Francisco Del Monte, Quezon City. The plan was made on the strength of a tip given by Renato Polines, a police informer, who was himself to pose as the buyer. 3 In their separate testimonies, 4 both policemen said that on the occasion they saw Polines hand over to Abugatal the marked money representing payment for the mock transaction. Abugatal left with the money and returned ten minutes later with a wrapped object which he gave Polines. The two policemen then approached Abugatal and placed him under arrest, at the same time confiscating the wrapped object. Subsequent laboratory examination revealed this to be marijuana with flowering tops weighing 22 grams. 5 The prosecution also showed that, upon providing Abugatal led the policemen to a house at 20 De Vera Street, also in San Francisco Del Monte, Quezon City, where he called out for Antonio Enrile. Enrile came out and met them at the gate. Abugatal pointed to Enrile as the source of the marijuana, whereupon the policemen immediately arrested and frisked him. They found in the right front pocket of his trousers the marked money earlier delivered to Abugatal, with Serial No. PJ966425. 6 At the police headquarters, Abugatal signed a sworn confession affirming the above narration. 7 Enrile refused to make any statement pending consultation with a lawyer. In his defense, Enrile testified that the marked money was "planted" on him by the police officers, who he said simply barged into his house without a warrant and arrested him. He stoutly denied any knowledge of the marijuana. He claimed that at the time of the alleged incident, he was attending, as a dental technician, to a patient whom he was fitting for dentures. 8 The supposed patient, Alicia Tiempo, corroborated him. 9 Enrile admitted that he had earlier been convicted of selling marijuana and that he had a pending application for probation. He suggested that this could be the reason the policemen sought to implicate him in the new charge and thus weaken his application. 10

Abugatal contradicted his earlier sworn statement and declared on the stand that he had not sold any marijuana to Polines. What really happened, he said, was that two male teenagers approached him that evening and told him to buy marijuana, giving him P50.00 for the purpose. When he said he did not have any marijuana and did not know where to buy it, they forced him to go to Enrile's house and to give him the marked money. He did so because they had a knife. Enrile handed him a plastic bag which was later found to contain dried marijuana fruiting tops. 11 Judge Willelmo C. Fortun erred when he gave credence to the sworn statement of Abugatal, considering that it was made without compliance with the requisites of a custodial investigation, including the right to the assistance of counsel. The confession was clearly inadmissible. It did not follow the ruling of this Court in Morales v. Enrile, 12 promulgated on April 26, 1983, as reiterated in People v. Galit, 13 promulgated on March 20, 1985, where Justice Hermogenes Concepcion laid down the correct procedure, thus: 7. At the time a person is arrested, it shall be the duty of the arresting officer to inform him of the reason for the arrest and he must be shown the warrant of arrest, if any. He shall be informed of his constitutional rights to remain silent and to counsel, and that any statement he might make could be used against him. The person arrested shall have the right to communicate with his lawyer, a relative, or anyone he chooses by the most expedient means by telephone if possible or by letter or messenger. It shall be the responsibility of the arresting officer to see to it that this is accomplished. No custodial investigation shall be conducted unless it be in the presence of counsel engaged by the person arrested, by any person on his behalf, or appointed by the court upon petition either of the detainee himself or by anyone on his behalf. The right to counsel may be waived but the waiver shall not be valid unless made with the assistance of counsel. Any statement obtained in violation of the procedure herein laid down, whether exculpatory, in whole or in part, shall be inadmissible in evidence. The challenged decision of the trial court was promulgated on February 14, 1986, long after the above-cited decisions had become effective. Even under the old doctrine, in fact, it is doubtful if Abugatal's confession without the assistance of counsel could have been sustained. It was not enough then to inform the suspect of his constitutional rights. The trial court had to ascertain for itself that the accused clearly understood the import and consequences of his confession and had the intelligence and mental capacity to do so. 14 There is no showing in the record that this was done, short of the statement in the decision that Abugatal had been informed of his rights and had validly waived the assistance of counsel. If the sworn statement of Abugatal was inadmissible against him, much less was it admissible against Enrile. The prosecution rejected Abugatal's testimony that he was forced to go to Enrile's house and buy marijuana from him, insisting instead on the extrajudicial confession. With that confession outlawed and the testimony disowned by the prosecution itself, there is no evidence at all against Enrile to tie him with Abugatal. It was Abugatal who was allegedly caught red-handed by the policemen as he sold the marijuana to Polines. Enrile was not even at the scene of the entrapment at that time. Abugatal said he did lead the policemen to Enrile's house where he pointed to Enrile as the source of the marijuana. Even assuming this to be true, that circumstance alone did not justify Enrile's warrantless arrest and search. Under Rule 113, Section 5, of the Rules of Court, a peace officer or a private person may make a warrantless arrest only under any of the following circumstances : (a) When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;. (b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and. (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Paragraphs (a) and (b) are clearly inapplicable. Paragraph (b) is also not in point because the policemen who later arrested Enrile at his house had no personal knowledge that he was the source of marijuana. According to the policemen themselves, what happened was that they asked Abugatal who gave him the marijuana and were told it was Enrile. It was for this reason that they proceeded to Enrile's house and immediately arrested him. 15 What the policemen should have done was secure a search warrant on the basis of the information supplied by Abugatal, and then, with such authority, proceeded to search and, if the search was fruitful, arrest Enrile. They had no right to simply force themselves into his house on the bare (and subsequently disallowed) allegations of Abugatal and bundle Enrile off to the police station as if he had been caught in flagrante delicto. The discovery of the marked money on him did not mean he was caught in the act of selling marijuana. The marked money was not prohibited per se. Even if it were, that fact alone would not retroactively validate the warrantless search and seizure. The principle has been honored through the ages in all liberty-loving regimes that a man's house is his castle that not even the mighty monarch, with all its forces, may violate. There were measures available under the law to enable the authorities to search Enrile's house and to arrest him if he was found in possession of prohibited articles. The police did not employ these measures. What they did was simply intrude into Enrile's house and arrest him without the slightest heed to the injunctions of the Bill of Rights. By so doing, they were using the tactics of the police state, where the minions of the government place little value on human rights and individual liberties and are obssessed only with the maintenance of peace and punishment of crime. These are laudible objectives in any well-ordered society. But it should never be pursued at the cost of dismantling the intricate apparatus for the protection of the individual from overzealous law-enforcers who mistakenly believe that suspected criminals have forfeited the safeguards afforded them by the Constitution. Law-enforcers are not licensed to themselves break the law to apprehend and punish law-breakers. Such a practice only leads to further defiance of the law by those who have been denied its protection. In the light of the proven circumstances of this case, the Court is not convinced that there is enough evidence to establish Enrile's guilt beyond the shadow of doubt. The paucity of such evidence only strengthens the suspicion that the marked money was really "planted" on Enrile by the police officers who were probably worried that their earlier efforts in securing Enrile's conviction as a drug pusher would be thwarted by his application for probation. Whatever their motives, the fact is that Abugatal's sworn statement implicating Enrile is inadmissible against Enrile, and so is the marked money allegedly found on him as a result of the illegal search. The only remaining evidence against the appellant is Abugatal's testimony, but this has been questioned and discredited by the prosecution itself. Its case against Enrile is thus left without a leg to stand on and must therefore be dismissed. Law-enforcement authorities are admonished that mere enthusiasm in the discharge of their duties is not enough to build a case against a person charged with a crime. They should build it with painstaking care, stone by stone of provable fact, and with constant regard for the rights of the accused, before they can hope to secure a conviction that can be sustained in a court of justice. WHEREFORE, the conviction of Antonio Enrile in the challenged decision is hereby SET ASIDE and REVERSED. The accused-appellant is ACQUITTED and shall be released immediately. It is so ordered.

G.R. No. 128822

May 4, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ALBERTO PASUDAG y BOKANG @ "BERTING, accused-appellant. PARDO, J .: The case is an appeal from the decision1 of the Regional Trial Court, Pangasinan, Branch 46, Urdaneta finding accused Alberto Pasudag y Bokang guilty beyond reasonable doubt of illegal cultivation of marijuana2 and sentencing him to reclusion perpetua and to pay a fine of P500,000.00, without subsidiary penalty and accessories of the law. On December 17, 1996, 4th Assistant Provincial Prosecutor of Pangasinan Emiliano M. Matro filed with the Regional Trial Court, Pangasinan, Urdaneta an Information3 charging accused Alberto Pasudag y Bokang with violation of R.A. No. 6425, Sec. 9, reading as follows: "That on or about September 26, 1995 and prior dates thereto at barangay Artacho, municipality of Sison, province of Pangasinan and within the jurisdiction of this Honorable Court, the above-named accused, did, then and there willfully, unlawfully and feloniously plant, cultivate, and culture seven (7) hills of marijuana in the land tilled by him and situated beside the house of the accused, without authority or permit to do so. "Contrary to Sec. 9 of R.A. 6425 as amended." On February 10, 1997, the trial court arraigned the accused. He pleaded not guilty.4 Trial ensued. On September 26, 1995, at around 1:30 in the afternoon, SPO2 Pepito Calip of the PNP Sison, Pangasinan, went to Brgy. Artacho to conduct anti-jueteng operations. He urinated at a bushy bamboo fence behind the public school. About five (5) meters away, he saw a garden of about 70 square meters. There were marijuana plants in between corn plants and camote tops. He inquired from a storekeeper nearby as to who owned the house with the garden. The storeowner told him that Alberto Pasudag owned it.5 SPO2 Calip went to the Police Station and reported to Chief of Police Romeo C. Astrero. The latter dispatched team (composed of SPO2 Calip, SPO3 Fajarito, SPO3 Alcantara and PO3 Rasca) to conduct an investigation. At around 2:30 in that same afternoon, the team arrived at Brgy; Artacho and went straight to the house of accused Pasudag. SPO3 Fajarito looked for accused Pasudag and asked him to bring the team to his backyard garden which was about five (5) meters away.6 Upon seeing the marijuana plants, the policemen called for a photographer, who took pictures of accused Pasudag standing besides one of the marijuana plants.7 They uprooted seven (7) marijuana plants. The team brought accused Pasudag and the marijuana plants to the police station.8

At the police station, accused Pasudag admitted, in the presence of Chief of Police Astrero, that he owned the marijuana plants.9 SPO3 Fajarito prepared a confiscation report10 which accused Pasudag signed.11 He kept the six marijuana plants inside the cabinet in the office of the Chief of Police and brought the tallest plant12 to the PNP Crime Laboratory for examination. 13 Major Theresa Ann Bugayong Cid, a forensic chemist at the PNP Crime Laboratory, receive the specimen14 on October 11, 1995. She testified that she took some leaves from the marijuana plant because the leaves had the most concentration of tetrahydrocannabinol. As per her Chemistry Report No. D-O87-95,15 the examination was positive for marijuana (tetrahydrocannabinol).16 On March 18, 1997, the trial court rendered a decision finding the accused guilty as charged and, taking into consideration his educational attainment (he reached only grade IV), imposed the minimum of the imposable penalty, thus: "WHEREFORE, JUDGMENT is rendered CONVICTING ALBERTO PASUDAG of the crime charged in the information and he is hereby sentenced to suffer the penalty of Reclusion Perpetua and to pay a fine of P500,000.00 without subsidiary penalty and other accessories of the law. "The 7 fully grown marijuana plants are confiscated in favor of the government. "The Warden of Urdaneta, Bureau of Jail Management and Penology, is hereby ordered to commit the body of Alberto Pasudag to the National Bilibid Prison immediately upon receipt hereof. "SO ORDERED. (Sgd. ) MODESTO C. JU ANSON Judge"17 Hence, this appeal.18 In his brief, accused-appellant contended that the trial court erred in finding that the marijuana plant submitted for laboratory examination was one of the seven (7) marijuana plants confiscated from his garden; that the trial court erred in concluding that the confiscation report was not an extrajudicial admission which required the intervention of his counsel; and in convicting him on the basis of inference that he planted, cultivated and cultured the seven (7) plants, owned the same or that he permitted others to cultivate the same.19 The Solicitor General contended that accused-appellant admitted before the lower court that tile specimen20 was one of the plants confiscated in his backyard; that appellant was not under custodial investigation when he signed the confiscation report; and that the inferences deduced by the lower court strengthened the conviction of accusedappellant..21 We find the appeal meritorious. As a general rule, the procurement of a search warrant is required before a law enforcer may validly search or seize the person, house, papers or effects of any individual.22 The Constitution provides that "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, x x x."23 Any evidence obtained in violation of this provision is inadmissible.24 In tile case at bar, the police authorities had ample opportunity to secure from the court a search warrant. SPO2 Pepito Calip inquired as to who owned the house.25 He was acquainted with marijuana plants and immediately recognized that some plants in the backyard of the house were marijuana plants.26 Time was not of the essence to uproot and confiscate the plants. They were three months old27 and there was no sufficient reason to believe that they would be uprooteds on that same day.

In People vs. Valdez28 the Court ruled that search and seizure conducted without the requisite judicial warrant is illegal and void ab initio. The prosecution's evidence clearly established that the police conducted a search of accused's backyard garden without a warrant; they had sufficient time to obtain a search warrant; they failed to secure one. There was no showing of urgency or necessity for the warrantless search, or the immediate seizure of the marijuana plants. "Lawmen cannot be allowed to violate the very law they are expected to enforce."29 "The Court is not unmindful of the difficulties of law enforcement agencies in suppressing the illegal traffic of dangerous drugs. However, quick solutions of crimes and apprehension of malefactors do not justify a callous disregard of the Bill of Rights."30 We need not underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches allowed without warrants."31 "The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high handedness of law enforcers, regardless of the praise worthiness of their intentions."32 With the illegal seizure of the marijuana plants subject of this case, the seized plants are inadmissible in evidence against accused-appellant.33 The arrest of accused-appellant was tainted with constitutional infirmity. The testimony of SPO3 Jovencio Fajarito34 reveals that appellant was not duly informed of his constitutional rights, thus: " "ATTY: ESTRADA: Q: In fact, you went to the house of Alberto Pasudag? A: Yes sir. Q: And in fact you invited him to the place where marijuana plants were planted? A: Yes sir. Q: Then and there, you started asking question from him? A: Yes sir. Q: In fact you started asking questions to elucidate from him information of admission regarding the ownership of the plants in question? A: I only asked who really planted and cultivated the plants sir. Q: Before you propounded questions to Alberto Pasudag, as according to you, you were already informed that he was the cultivator by some per sons whose name until now you do not know? A: Yes sir. Q: Did you not inform Alberto , Pasudag his constitutional rights?

A: I did not inform him because only when I will took (sic) his statement in the presence of his counsel and to be reduced in writing, sir.
Q: What you want to impress, you will inform only a person of his constitutional rights if you take his statement in writing? A: Yes sir. Q: Is that your method?

A: I informed the accused if l have to place it is statement into writing, sir. Q: According to you, you invited Alberto Pasudag to the alleged place where the marijuana were planted, then and there, you asked him who planted the same, and according to you, he said he planted the same? A: Yes sir. xxx xxx xxx Q: According to you, you brought Alberto Pasudag to the Office of the Chief of Police of Sison, Pangasinan? A: Yes sir. Q: In fact the Chief of Police was there? A: Yes sir. Q: Romeo Ast.rero was the Senior Inspector? , A: Yes sir. Q: In other words, SPO2 Calip, Alcantara, Romeo Rasca and Alberto Pasudag were inside the office of the Chief of Police? A: Yes sir. Q: And according to you, Alberto Pasudag was interrogated by the Chief of Police ? A: Yes sir:

Q: In fact the Chief of Police was asking Alberto Pasudag in your presence? who planted the marijuana plants and according to you, Alberto Pasudag admitted in your presence that he planted the alleged marijuana plants?
A: Yes sir. Q: Before Chief Inspector Romeo Astrero interrogated Alberto Pasudag, he did not also inform Alberto Pasudag his constitutional rights, particularly the rights of a person under custodial interrogation? A: What I know, he just asked Alberto Pasudag the veracity whether or not he planted the said plants. Q: In other words, your answer is, your Chief of Police did not inform Alberto Pasudag his constitutional rights? A: No sir." (emphasis supplied) After the interrogation, SPO3 Fajarito prepared a confiscation report,35 which was part of the investigation.36 AccusedAppellant signed the confiscation report.37 In both the interrogation and the signing of the confiscation receipt, no counsel assisted accused-appellant. He was the only civilian present in the Office of the Chief of Police.38 We do not agree with the Solicitor General that accused-appellant was not under custodial investigation when he signed the confiscation receipt. It has been held repeatedly that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of a crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission.39 Obviously, accused-appellant was a suspect from the moment the police team went to his house and ordered the uprooting of the marijuana plants in his backyard garden. "The implied acquiescence to the search, if there was any, could not have been more that mere passive conformity given under intimidating or coercive circumstances and is thus considered no consent at all within the purview of the

constitutional guarantee."40 Even if the confession or admission were "gospel truth", if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence.41 In light of the foregoing, we uphold the constitutional right of accused-appellant to a presumption of innocence. The prosecution failed to establish his guilt beyond reasonable doubt. WHEREFORE, the decision of the trial court is hereby REVERSED and SET ASIDE. Accused-appellant ALBERTO PASUDAG y BOKANG is ACQUITED of the crime charged for lack of proof beyond reasonable doubt. The Director of Corrections is hereby directed to forthwith release accused-appellant unless he is held for another case, and to inform the Court of the action taken hereon within ten (10) days from notice.

G.R.No. 74869 July 6, 1988 PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. IDEL AMINNUDIN y AHNI, defendant-appellant. CRUZ, J.: The accused-appellant claimed his business was selling watches but he was nonetheless arrested, tried and found guilty of illegally transporting marijuana. The trial court, disbelieving him, held it was high time to put him away and sentenced him to life imprisonment plus a fine of P20,000.00. 1 Idel Aminnudin was arrested on June 25, 1984, shortly after disembarking from the M/V Wilcon 9 at about 8:30 in the evening, in Iloilo City. The PC officers who were in fact waiting for him simply accosted him, inspected his bag and finding what looked liked marijuana leaves took him to their headquarters for investigation. The two bundles of suspect articles were confiscated from him and later taken to the NBI laboratory for examination. When they were verified as marijuana leaves, an information for violation of the Dangerous Drugs Act was filed against him. 2 Later, the information was amended to include Farida Ali y Hassen, who had also been arrested with him that same evening and likewise investigated. 3 Both were arraigned and pleaded not guilty. 4 Subsequently, the fiscal filed a motion to dismiss the charge against Ali on the basis of a sworn statement of the arresting officers absolving her after a 'thorough investigation." 5 The motion was granted, and trial proceeded only against the accused-appellant, who was eventually convicted . 6 According to the prosecution, the PC officers had earlier received a tip from one of their informers that the accusedappellant was on board a vessel bound for Iloilo City and was carrying marijuana. 7 He was Identified by name. 8 Acting on this tip, they waited for him in the evening of June 25, 1984, and approached him as he descended from the gangplank after the informer had pointed to him. 9 They detained him and inspected the bag he was carrying. It was found to contain three kilos of what were later analyzed as marijuana leaves by an NBI forensic examiner, 10 who testified that she conducted microscopic, chemical and chromatographic tests on them. On the basis of this finding, the corresponding charge was then filed against Aminnudin. In his defense, Aminnudin disclaimed the marijuana, averring that all he had in his bag was his clothing consisting of a jacket, two shirts and two pairs of pants. 11 He alleged that he was arbitrarily arrested and immediately handcuffed. His bag was confiscated without a search warrant. At the PC headquarters, he was manhandled to force him to admit he was carrying the marijuana, the investigator hitting him with a piece of wood in the chest and arms even as he parried the blows while he was still handcuffed. 12 He insisted he did not even know what marijuana looked like and that his business was selling watches and sometimes cigarettes. 13 He also argued that the marijuana he was alleged to have been carrying was not properly Identified and could have been any of several bundles kept in the stock room of the PC headquarters. 14 The trial court was unconvinced, noting from its own examination of the accused that he claimed to have come to Iloilo City to sell watches but carried only two watches at the time, traveling from Jolo for that purpose and spending P107.00 for fare, not to mention his other expenses. 15 Aminnudin testified that he kept the two watches in a secret pocket below

his belt but, strangely, they were not discovered when he was bodily searched by the arresting officers nor were they damaged as a result of his manhandling. 16 He also said he sold one of the watches for P400.00 and gave away the other, although the watches belonged not to him but to his cousin, 17 to a friend whose full name he said did not even know. 18 The trial court also rejected his allegations of maltreatment, observing that he had not sufficiently proved the injuries sustained by him. 19 There is no justification to reverse these factual findings, considering that it was the trial judge who had immediate access to the testimony of the witnesses and had the opportunity to weigh their credibility on the stand. Nuances of tone or voice, meaningful pauses and hesitation, flush of face and dart of eyes, which may reveal the truth or expose the lie, are not described in the impersonal record. But the trial judge sees all of this, discovering for himself the truant fact amidst the falsities. The only exception we may make in this case is the trial court's conclusion that the accused-appellant was not really beaten up because he did not complain about it later nor did he submit to a medical examination. That is hardly fair or realistic. It is possible Aminnudin never had that opportunity as he was at that time under detention by the PC authorities and in fact has never been set free since he was arrested in 1984 and up to the present. No bail has been allowed for his release. There is one point that deserves closer examination, however, and it is Aminnudin's claim that he was arrested and searched without warrant, making the marijuana allegedly found in his possession inadmissible in evidence against him under the Bill of Rights. The decision did not even discuss this point. For his part, the Solicitor General dismissed this after an all-too-short argument that the arrest of Aminnudin was valid because it came under Rule 113, Section 6(b) of the Rules of Court on warrantless arrests. This made the search also valid as incidental to a lawful arrest. It is not disputed, and in fact it is admitted by the PC officers who testified for the prosecution, that they had no warrant when they arrested Aminnudin and seized the bag he was carrying. Their only justification was the tip they had earlier received from a reliable and regular informer who reported to them that Aminnudin was arriving in Iloilo by boat with marijuana. Their testimony varies as to the time they received the tip, one saying it was two days before the arrest, 20 another two weeks 21 and a third "weeks before June 25." 22 On this matter, we may prefer the declaration of the chief of the arresting team, Lt. Cipriano Querol, Jr., who testified as follows: Q You mentioned an intelligence report, you mean with respect to the coming of Idel Aminnudin on June 25, 1984? A Yes, sir. Q When did you receive this intelligence report? A Two days before June 25, 1984 and it was supported by reliable sources. Q Were you informed of the coming of the Wilcon 9 and the possible trafficking of marijuana leaves on that date? A Yes, sir, two days before June 25, 1984 when we received this information from that particular informer, prior to June 25, 1984 we have already reports of the particular operation which was being participated by Idel Aminnudin. Q You said you received an intelligence report two days before June 25, 1984 with respect to the coming of Wilcon 9? A Yes, sir. Q Did you receive any other report aside from this intelligence report? A Well, I have received also other reports but not pertaining to the coming of Wilcon 9. For instance, report of illegal gambling operation. COURT:

Q Previous to that particular information which you said two days before June 25, 1984, did you also receive daily report regarding the activities of Idel Aminnudin A Previous to June 25, 1984 we received reports on the activities of Idel Aminnudin. Q What were those activities? A Purely marijuana trafficking. Q From whom did you get that information? A It came to my hand which was written in a required sheet of information, maybe for security reason and we cannot Identify the person. Q But you received it from your regular informer? A Yes, sir. ATTY. LLARIZA: Q Previous to June 25, 1984, you were more or less sure that Idel Aminnudin is coming with drugs? A Marijuana, sir. Q And this information respecting Idel Aminnudin's coming to Iloilo with marijuana was received by you many days before you received the intelligence report in writing? A Not a report of the particular coming of Aminnudin but his activities. Q You only knew that he was coming on June 25,1984 two days before? A Yes, sir. Q You mean that before June 23, 1984 you did not know that minnudin was coming? A Before June 23,1984, I, in my capacity, did not know that he was coming but on June 23, 1984 that was the time when I received the information that he was coming. Regarding the reports on his activities, we have reports that he was already consummated the act of selling and shipping marijuana stuff. COURT: Q And as a result of that report, you put him under surveillance? A Yes, sir. Q In the intelligence report, only the name of Idel Aminnudin was mentioned? A Yes, sir. Q Are you sure of that? A On the 23rd he will be coming with the woman.

Q So that even before you received the official report on June 23, 1984, you had already gathered information to the effect that Idel Aminnudin was coming to Iloilo on June 25, 1984? A Only on the 23rd of June. Q You did not try to secure a search warrant for the seizure or search of the subject mentioned in your intelligence report? A No, more. Q Why not? A Because we were very very sure that our operation will yield positive result. Q Is that your procedure that whenever it will yield positive result you do not need a search warrant anymore? A Search warrant is not necessary.
23

That last answer is a cavalier pronouncement, especially as it comes from a mere lieutenant of the PC. The Supreme Court cannot countenance such a statement. This is still a government of laws and not of men. The mandate of the Bill of Rights is clear: 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. In the case at bar, there was no warrant of arrest or search warrant issued by a judge after personal determination by him of the existence of probable cause. Contrary to the averments of the government, the accused-appellant was not caught in flagrante nor was a crime about to be committed or had just been committed to justify the warrantless arrest allowed under Rule 113 of the Rules of Court. Even expediency could not be invoked to dispense with the obtention of the warrant as in the case of Roldan v. Arca, 24 for example. Here it was held that vessels and aircraft are subject to warrantless searches and seizures for violation of the customs law because these vehicles may be quickly moved out of the locality or jurisdiction before the warrant can be secured. The present case presented no such urgency. From the conflicting declarations of the PC witnesses, it is clear that they had at least two days within which they could have obtained a warrant to arrest and search Aminnudin who was coming to Iloilo on the M/V Wilcon 9. His name was known. The vehicle was Identified. The date of its arrival was certain. And from the information they had received, they could have persuaded a judge that there was probable cause, indeed, to justify the issuance of a warrant. Yet they did nothing. No effort was made to comply with the law. The Bill of Rights was ignored altogether because the PC lieutenant who was the head of the arresting team, had determined on his own authority that a "search warrant was not necessary." In the many cases where this Court has sustained the warrantless arrest of violators of the Dangerous Drugs Act, it has always been shown that they were caught red-handed, as a result of what are popularly called "buy-bust" operations of the narcotics agents. 25 Rule 113 was clearly applicable because at the precise time of arrest the accused was in the act of selling the prohibited drug. In the case at bar, the accused-appellant was not, at the moment of his arrest, committing a crime nor was it shown that he was about to do so or that he had just done so. What he was doing was descending the gangplank of the M/V Wilcon 9 and there was no outward indication that called for his arrest. To all appearances, he was like any of the other passengers innocently disembarking from the vessel. It was only when the informer pointed to him as the carrier of the marijuana that he suddenly became suspect and so subject to apprehension. It was the furtive finger that triggered his

arrest. The Identification by the informer was the probable cause as determined by the officers (and not a judge) that authorized them to pounce upon Aminnudin and immediately arrest him. Now that we have succeeded in restoring democracy in our country after fourteen years of the despised dictatorship, when any one could be picked up at will, detained without charges and punished without trial, we will have only ourselves to blame if that kind of arbitrariness is allowed to return, to once more flaunt its disdain of the Constitution and the individual liberties its Bill of Rights guarantees. While this is not to say that the accused-appellant is innocent, for indeed his very own words suggest that he is lying, that fact alone does not justify a finding that he is guilty. The constitutional presumption is that he is innocent, and he will be so declared even if his defense is weak as long as the prosecution is not strong enough to convict him. Without the evidence of the marijuana allegedly seized from Aminnudin, the case of the prosecution must fall. That evidence cannot be admitted, and should never have been considered by the trial court for the simple fact is that the marijuana was seized illegally. It is the fruit of the poisonous tree, to use Justice Holmes' felicitous phrase. The search was not an incident of a lawful arrest because there was no warrant of arrest and the warrantless arrest did not come under the exceptions allowed by the Rules of Court. Hence, the warrantless search was also illegal and the evidence obtained thereby was inadmissible. The Court strongly supports the campaign of the government against drug addiction and commends the efforts of our law-enforcement officers against those who would inflict this malediction upon our people, especially the susceptible youth. But as demanding as this campaign may be, it cannot be more so than the compulsions of the Bill of Rights for the protection of the liberty of every individual in the realm, including the basest of criminals. The Constitution covers with the mantle of its protection the innocent and the guilty alike against any manner of high- handedness from the authorities, however praiseworthy their intentions. Those who are supposed to enforce the law are not justified in disregarding the rights of the individual in the name of order. Order is too high a price for the loss of liberty. As Justice Holmes, again, said, "I think it a less evil that some criminals should escape than that the government should play an ignoble part." It is simply not allowed in the free society to violate a law to enforce another, especially if the law violated is the Constitution itself. We find that with the exclusion of the illegally seized marijuana as evidence against the accused-appellant, his guilt has not been proved beyond reasonable doubt and he must therefore be discharged on the presumption that he is innocent. ACCORDINGLY, the decision of the trial court is REVERSED and the accused-appellant is ACQUITTED. It is so ordered.

G.R. No. 128285

November 27, 2001

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ANTONIO PLANA alias "CATONG" EDGARDO PERAYRA, RENE SALDEVEA and RICHARD BANDAY, defendantappellants. PER CURIAM: This is an automatic review of the decision of the Regional Trial Court, Branch 15 of Roxas City in Criminal Case No. 4659 finding accused-appellants Antonio Plana, Edgardo Perayra, Rene Saldevea and Richard Banday guilty beyond reasonable doubt of the crime of Rape with Homicide and imposing upon them the supreme penalty of Death. The Information filed against accused-appellants reads: That on or about 10:30 o'clock in the morning of September 23, 1994, at Brgy. Cubi, Dumarao, Capiz, and within the jurisdiction of this Court, the above-named accused did, then and there, wilfully and feloniously, and by conspiring and helping one another, gang-up and have carnal knowledge of HELEN PIROTE [should read Helen Perote] against her will, and, thereafter, by means of cruelty which augmented her suffering, did, then and there, strike, mangle and stab said HELEN PIROTE several times with both blunt and sharp-edged weapons thereby inflicting upon her serious multiple wounds causing massive hemorrhage which resulted to [sic] her death.1 At their arraignment, accused-appellants pleaded not guilty. During the trial, the prosecution presented as its witnesses Dr. Ricardo Betita, Jr., Felix Lagud, Rene Bustamante, Antonio Mendoza, Amalia Rafael, Linda Perote and Romeo de la Torre Diaz. Their testimonies, taken together, establish that: On September 26, 1994, the victim, Helen Perote, was found dead by her brother and the police in Brgy. Cobe, Dumarao, Capiz. The body was in prone position and was already in an advance state of decomposition. Per the post mortem examination conducted by Dr. Ricardo Betita, Rural Health Officer of Cuartero, Capiz, the victim sustained the following injuries: 1. Clean edges stab wound 2x5 cm left anterior chest. 2. Avulsion with irregular edges wound 8x12 cm middle chest area. 3. Avulsion of the nose and upper lip portion/area. 4. Clean edges wound or stab wound 2x5 cm epigastric area.

5. Clean edges stab wound 2x5 cm left hypogastric area. 6. Clean edges stab wound 2x5 cm hypogastric area. 7. Clean edges stab wound 2x5 cm left posterior upper back. 8. Clean edges stab wound 2x5 cm mid upper portion of the back. 9. Clean edges stab wound 2x5 cm left posterior back level of 8th ribs. 10. Clean edges stab wound 2x5 cm left back level of left lumbar area. 11. Clean edges wound 2x5 cm middle low back area. 12. Clean edges wound 2x5 cm right low back area at level of lumbar area. 13. Clean edges wound 2x5 cm left gluteal area near the anus. 14. Vagina: Introitus can easily insert 2 fingers/Hymen with laceration 3 and 9 o'clock (old laceration) and on the state of decomposition. The most probable cause of death was massive hemorrhage or blood loss secondary to multiple stab wound[s].2 When he took the witness stand, Dr. Betita described the fourteen (14) wounds inflicted on the victim as follows: Wound No. 1 was located just above the left breast of the victim. It was seven (7) to nine (9) centimeters deep. It was a fatal wound as it hit the heart of the victim. Wound No. 2 was located in the middle chest area of the victim. Wound No. 3 was an avulsion on the nose and upper lip. There was also a missing tooth. The wound could have been caused by a hard object or that the victim fell with her face hitting the ground. Wound No. 4 was a stab wound located at the upper part of the abdomen. It was seven (7) centimeters deep and was probably caused by a knife or a bladed instrument. Wound No. 5 was a stab wound located at the left side above the pubis area. Wound No. 6 was a stab wound located above the pubis area also. It was seven (7) to ten (10) centimeters deep. The urinary bladder and the uterus could have been hit by this wound. Wound No. 7 was a stab wound and located at the right scapular area of the body. With a depth of seven (7) centimeters, the wound hit the lungs of the victim. Wound No. 8 was a stab wound and located at the upper back portion. It could have affected the spinal cord causing paralysis. Wound No. 9 was a fatal stab would located at the left posterior back level of the 8th rib. The wound could have affected the spinal cord, the lungs and the abdominal "aorta." Wound No. 10 was located at the left lumbar area which could have hit the kidney of the victim. Wound No. 11 was located at the middle low back area. Wound No. 12 was located at the middle portion of the back just above the right lumbar area. Wound No. 13 was located near the anus. The wound was inflicted with the victim facing downward or the assailant was at the back of the victim. Finally, Entry No. 14 was the laceration on the hymen of the victim's sexual organ.3 According to Dr. Betita, the victim died more than seventy-two (72) hours already before the police authorities found her body.4 On September 23, 1994, or three (3) days before the victim's body was found, at around 10:30 in the morning, Felix Lagud was walking at the feeder road in Barangay Cobe, Dumarao, Capiz. He just came from his farm in Alipasyawan, Dumarao and was on his way home to Poblacion Ilawod. A movement at about fifty meters to his left side caught his attention. He saw three persons who seemed to be wrestling. He came nearer so he would be able to see them more clearly. From about a distance of twenty (20) meters, he saw the three men holding a girl while another man was on top of her. The girl was being raped and she was later stabbed. Frightened that the assailants would see him, Lagud ran away. He intended to go straight home but when he passed by the house of Porferio Haguisan, the latter invited him for a "milagrosa." Lagud obliged and stayed at the house of his "kumpare" until 2:00 in the morning.5 On September 26, 1994, while he was in Ungon Ilaya, Lagud heard that a girl was found dead in Barangay Cobe. It was the same place where, three days earlier, he saw the four men gang up on the girl. He wanted to go to the place but he

was told that the foul smell coming from the decomposed body already permeated the place. He later learned that the deceased was Helen Perote.6 In his affidavit,7 as well as in his testimony in court, Lagud identified accused-appellants Plana, Perayra and Saldevea as the three men who were holding the girl while their fourth companion was raping her. At the time of the incident, he did not yet recognize the fourth man who was on top of the girl. However, when he saw accused-appellants at the municipal hall where they were brought when they were arrested on September 26, 1994, he identified the fourth man to be accused-appellant Banday.8 Rene Bustamante corroborated in part the testimony of Lagud. Between 10:30 to 11:00 in the morning of September 23, 1994, Bustamante was looking for his carabao. He found it near the fishpond owned by accused-appellant Saldevea in Barangay Cobe. Bustamante was tugging the carabao when he heard the sound of men laughing. When he looked back, he saw accused-appellant Saldevea, who was then shirtless, pull up his pants. Accused-appellant Saldevea were with three other men. They were washing their hands on the fishpond. Bustamante recognized one of them to be accusedappellant Perayra. Bustamante proceeded to his home in Barangay Ungon, Ilaya, Dumarao, Capiz.9 On September 25, 1994, Bustamante was in their house with his wife and children. His mother-in-law, Linda Perote, arrived looking for her daughter Helen. The wife of Bustamante is the older sister of Helen. They learned that Helen had been missing since September 23, 1994. She was supposed to go to the house of her other sister, Susan, but she (Helen) never reached the latter's place. They began to search for her. On September 26, 1994, they found her lifeless body with no clothes on but her panty. There were already maggots infesting her body. Bustamante confirmed in open court that accused-appellants were the men that he saw on September 23, 1994 near the place where the body of Helen was found.10 Antonio Mendoza, barangay captain of Barangay Hambad, Dumarao, Capiz and storeowner, narrated during the hearing that on September 23, 1994, at past 8:00 in the morning, accused-appellants arrived at his store. They bought two bottles of ESQ whisky and proceeded to drink the liquor. Accused-appellants were drinking in Mendoza's store until almost 10:00 in the morning. Thereafter, they left bringing with them the one-half full bottle of whisky that they did not consume.11 Two days after that incident, on September 25, 1994, Porferio Haguisan and members of the Regional Security of the Armed Forces (RSAF) came to see Mendoza to ask him if he saw accused-appellants. Mendoza told them that accusedappellants were in his store in the morning of September 23, 1994. Haguisan and the police left. The following day, Mendoza heard that Helen's body was found dead near the fishpond owned by the brother of accused-appellant Saldevea. The place is approximately 500 meters away from Mendoza's store.12 The last person who talked with the victim was her older sister Amalia Rafael. In the morning of September 23, 1994, Helen went to see Amalia to tell her that they were going to have a "milagrosa" in the house of their other sister, Susan. Amalia instructed Helen to go ahead. Helen then left to proceed to Susan's house. Going there, Helen would usually pass by the railway track and the feeder road. After Helen left, Amalia followed her to their sister's house. Amalia took the same route passing by the railway track and feeder road. On her way, Amalia met accused-appellants on the feeder road near the fishpond. At the time, she only knew accused-appellants Plana and Perayra. She noticed that the four men were not wearing any shirts but only their denim pants. They were obviously drunk as their faces were red and they walked in a zigzag manner. Amalia saw that accused-appellant Plana had a knife tucked in his waist.13 There were already many people when Amalia arrived at Susan's house. However, Helen was nowhere to be found. Amalia did not stay long there as she only got food. On September 25, 1994, while she was working in the ricefield, their mother, Linda, came. She told Amalia that Helen had not come home. They then went to see Helen's classmates to ask them if they knew where she went. All they knew is that she went to a "milagrosa." On September 26, 1994, they found the body of Helen near the fishpond of accused-appellant Saldevea in Barangay Cobe, Dumarao, Capiz. Helen was then only eighteen years old.14 The Chief of Police of Dumarao Police Station, Romeo dela Torre Diaz, received report of Helen's disappearance in the afternoon of September 25, 1994. Later in the evening, he granted clearance to the 601st Mobile Force Company to conduct the search. The following day, upon hearing that the body of Helen was already found, Diaz went to the station of the 601st Mobile Force Company. Accused-appellants, who were already there, were turned over to him for investigation. Thereafter, Diaz went to the place where Helen's body was found in Barangay Cobe.15

Linda Perote, the victim's mother, described on the witness stand the shock, grief and anguish that she felt upon learning of her daughter's death. She averred that the family spent almost fifty thousand pesos (P50,000.00) for Helen's wake and burial.16 Upon the other hand, accused-appellants interposed the defense of denial and alibi. Their account of their activities on that fateful day of September 23, 1994 is as follows: At around 7:30 in the morning, accused-appellants had "lomi" in the eatery owned by Eddie Pendon. After eating, they accompanied accused-appellant Saldevea to the public market to buy fish. From the public market, they all boarded a tricycle to go to Barangay Bugnay. When they alighted the tricycle, they may barangay captain Tony Mendoza. Mendoza boarded the tricycle while accused-appellants proceeded to Mendoza's store. Accused-appellants bought two bottles of whisky from the store. They drank the liquor at said store until past 10:00 in the morning.17 Thereafter, accused-appellants Plana and Banday had to leave behind accused-appellants Saldevea and Perayra to go to the house of Plana's aunt and uncle, Vicente and Felomina Docutan. They reached the house of the Docutans at around 10:30 in the morning. It only took them a couple of minutes to get there by foot. Accused-appellants Plana and Banday were tasked to cook the chicken for the celebration that night. Also at the house of the Docutan couple was Nolan Obena. Accused-appellants Plana and Banday stayed there until 9:00 in the evening. Accused-appellant Banday slept over at the house of accused-appellant Plana since he (accused-appellant Banday) lived quite far.18 For their part, after accused-appellants Plana and Banday left the store, accused-appellants Perayra and Saldevea proceeded to the house of the latter's sister-in-law, Monina Saldevea. Accused-appellant Saldevea cooked the fish that they earlier bought in the public market. They then had lunch and after eating, they slept. Accused-appellant Perayra slept until 4:00 in the afternoon. Accused-appellant Saldevea woke up earlier and was soon outside the house plowing the field. Accused-appellant Perayra went home at 4:30 in the afternoon.19 To buttress their defense of denial and alibi, accused-appellants further accounted for their activities on the days subsequent to September 23, 1994. Accused-appellant Plana claimed that he spent the day gathering wood on September 24, 1994. The following day, he just stayed at their house but in the afternoon, he played basketball with accused-appellant Perayra and their friends. Later in the evening, at about 11:00, certain members of the RSAF came to the house of accused-appellant Plana. Accused-appellant Perayra was still there because he slept over at said house. The RSAF questioned them if they saw a girl named Helen Perote. They answered no. Accused-appellants Plana and Perayra then accompanied the law enforcers to see a certain "Lando." The authorities inquired from Lando if there was a woman who boarded his "bering" transportation. Lando answered in the negative. Accused-appellants Plana and Perayra were then instructed by the police to go to the police detachment. Since it was already late, accused-appellants Plana and Perayra asked if they could just go there in the morning of the following day.20 Accused-appellant Perayra averred that he stayed at his house the whole day of September 24, 1994. The following day, he went to the house of accused-appellant Plana in the afternoon. They agreed to meet later in the evening at the wake in the house of the Igaras family. They left the wake at 10:00 in the evening. Accused-appellant Perayra decided to spend the night at the house of accuse-appellant Plana. At 11:00 in the evening, they were awakened by the brother of accused-appellant Plana. They were informed that members of the RSAF were outside the house looking for them. Accused-appellant Perayra was brought in front of the house while accused-appellant Plana was brought at the back. Accused-appellant Perayra was asked of his whereabouts on September 23, 1994.21 Accused-appellant Banday recounted that he left the house of accused-appellant Plana early morning of September 24, 1994. He slept there the night before after they had dinner at the house of the Docutans. He never left his house on September 24 and 25, 1994. On September 26, 1994, he received word that the police chief wanted to ask him questions. He thus went to the police detachment as instructed. He did not see the other accused-appellants when he arrived at the detachment. The authorities began interrogating him. They wanted him to confess to the killing and raping of Helen. When he refused, they punched him. Later in the afternoon, the four accused-appellants were brought to the municipal hall in Dumarao, Capiz. They were placed under detention there.22 Aside from accused-appellants, the defense presented other witnesses, namely, Julia Barrientos, Nolan Obena, Igleserio Farinas, Rolando Naelgas and Monina Saldevea. Barrientos tried to refute the allegation of prosecution witness Felix Lagud that he saw accused-appellants rape and stab Helen in Barangay Cobe. Barrientos testified that on September 23,

1994, at 10:00 in the morning, on her way to the public market, she saw Lagud sitting on the bench outside his house. Lagud was then selling "amakan," hence, he could not have seen what he claimed he saw.23 Obena corroborated the alibi of accused-appellants Plana and Banday that from 10:30 in the morning to 8:00 in the evening of September 23, 1994, they were at the house of the Docutan couple.24 Farinas, a basket vendor, said during his testimony that he saw accused-appellant Plana and his two companions at around 10:30 in the morning of that fateful day. They passed by the house of Ronie Saldevea, brother of accused-appellant Saldevea, where Farinas was buying baskets. He (Farinas) even had a short conversation with accused-appellant Plana. Farinas saw accused-appellant Plana and his companions head towards Barangay Cobe.25 Naelgas corroborated the testimony of Obena. Naelgas saw Obena when the latter bought baskets from Ronie. He (Naelgas) affirmed that accused-appellants Plana and Banday passed by the house of Ronie. They came from the direction of the nearby high school and went down the hill going to Barangay Cobe.26 Monina Saldevea, sister-in-law of accused-appellant Saldevea, corroborated the alibi of accused-appellants Saldevea and Perayra. She attested that on September 23, 1994, accused-appellants Saldevea and Perayra arrived at her house at 10:30 in the morning. They had their lunch there. Accused-appellant Saldevea helped prepare the same. Accusedappellant Perayra stayed at the house of Monina until 4:30 in the afternoon when he went home. On the other hand, accused-appellant Saldevea did not leave the house until September 25, 1994. The following day, he went to the detachment after he was informed by accused-appellant Perayra that the authorities wanted to investigate them for the death of Helen Perote.27 Edith Perayra, mother of accused-appellant Perayra, averred that in the morning of September 23, 1994, her son asked permission from her to go to the public market. He told her that he was going there with accused-appellant Saldevea. When he got home at 5:00 in the afternoon, he told his mother that he ate lunch at the house of Monina Saldevea with accused-appellant Saldevea. Accused-appellant Perayra did not leave their house except to buy cigarettes in the afternoon of September 25, 1994. The following day, at 6:00 in the morning, accused-appellant Perayra reported to the police detachment after he learned that the authorities wanted to ask him questions. At the detachment, he was surprised to learn that he was one of the suspects in the rape-slaying of Helen. Accused-appellants were all brought to the municipal hall in Dumarao, Capiz where they were detained.28 Lagud was called again to the witness stand by the prosecution to rebut the testimony of Julia Barrientos, witness for the defense. Lagud admitted that he knows Barrientos but denied seeing her on September 23, 1994. According to Lagud, Barrientos' claim that she saw him selling "amakan" on that date is not true because he had already stopped said business in 1992.29 On November 23, 1996, after due trial, a judgment was rendered by the trial court finding accused-appellants guilty beyond reasonable doubt of the crime of rape with homicide. The trial court imposed upon them the supreme penalty of death. The dispositive portion of the trial court's decision reads: WHEREFORE, finding accused ANTONIO PLANA, EDGARDO PERAYRA, RENE SALDEVEA and RICHARD BANDAY guilty beyond reasonable doubt of the complex crime of Rape with Homicide as defined and punished under Art. 335 of the Revised Penal Code, as amended by Rep. Act No. 7659, judgment is hereby rendered sentencing them to suffer the supreme penalty of DEATH and, likewise, ordering them to pay jointly and severally the heirs of the victim, Helen Perote, twenty five thousand pesos (P25,000.00) as actual damages and fifty thousand pesos (P50,000.00) as civil liability. SO ORDERED.30 In their appeal brief, accused-appellants assail their conviction alleging that the trial court committed the following errors: a. The trial court erred in not appreciating the defense of alibi/denial put up by the appellants they had nothing to do with the commission of the crime as their testimonies and their witnesses, individually and collectively taken together, showed with clarity and beyond doubt they were not at the scene of the crime and did not commit the offenses charged. b. The trial court erred in not censuring the actuation of the police authorities in detaining appellants without benefit of Court filed information nor judicial order of detention as well as violation of their constitutional rights during their socalled custodial invitation and interrogation.

c. The trial court erred in not appreciating the inconsistencies and inherent weaknesses/improbabilities of the testimonies of prosecution's witness which showed tons of doubt of appellant's guilt entitling them to acquittal.31 Accused-appellants vigorously deny that they committed the rape and killing of Helen. They maintain that their testimonies, taken together with that of the other defense witnesses, show that they were not at the scene of the crime. In other words, they fault the trial court for not giving credence to their defense of alibi. Corollarily, they point out the alleged inconsistencies and improbabilities in the testimonies of the witnesses for the prosecution. Accused-appellants likewise denounce as violative of their constitutional rights their detention without, at the time, a judicial order or an information filed in court. After a careful review of the evidence on record, the Court is constrained to affirm the judgment of conviction of accused-appellants. The first and last issues raised by accused-appellants shall be addressed jointly as they both involve the assessment of the witnesses' credibility. It is well-entrenched in this jurisdiction that findings of the trial court on the credibility of witnesses and their testimonies are entitled to the highest respect and will not be disturbed on appeal in absence of any clear showing that the trial court overlooked, misunderstood or misapplied some facts of circumstances of weight and substance which would have affected the result of the case. The trial court is in a better position to decide the question of credibility, having seen and heard the witnesses themselves and observed their behavior and manner of testifying.32 In this case, the trial court correctly gave credence to the positive identification of accused-appellants as the assailants of Helen by Felix Lagud. His testimony was straightforward, direct and consistent: PUBLIC PROSECUTOR: Q A Q A Q A Q A Q A Mr. Lagud, where were you at about 10:30 o'clock in the morning on September 23, 1994? I was walking at the feeder road of barangay Cobe, Dumarao, Capiz. Where were you headed to? Going home to Poblacion Ilawod. And this Poblacion Ilawod is also of Dumarao, Capiz? Yes, sir. Where have you been? I came from Alipasyawan, Dumarao, Capiz, visiting my farm. This Alipasyawan is also of Dumarao, Capiz? Yes, sir.

Q While walking in barangay road of Barangay Cobe, Dumarao, Capiz, was there anything unusual that attracted or called your attention? A Q A Q Yes, ma'm. What was the unusual incident that called your attention? I saw that as if there were wrestling. On which part of the barangay road where you were walking that you saw there seems to be wrestling persons?

A Q A Q A Q A

On my left side. Now, how far were you from the very spot where you saw there seems to be wrestling persons? 50 meters. About 50 meters. Now, when you saw this what did you do? I came near so that I could see it clearly. How near did you approached that spot, Mr. Witness? About twenty (20) meters.

Q Now, upon reaching that distance from the spot where you said you saw persons who seems to be wrestling what did you see? A Q A Q A I saw three (3) persons holding the one who is being raped and one person was on the top of the girl. Now, did you recognized these three (3) persons whom you saw were holding the victim? Yes, sir. Who were these three (3) persons holding still the victim? Antonio Plana, Edgardo Perayra and Rene Saldevea.

Q Now, before that incident that you saw have you already known these three (3) persons you have identified who have been holding the girl, one of them was actually raping ATTY. BARRERA: I object to the term actual raping. There is still no proof that there was any rape, was holding the girl only. He has not yet given testimony involving rape. COURT: Witness may answer. A These three (3) persons I have already known them because we have gone together in a drinking session and I also passed by Cobe. PUBLIC PROSECUTOR: Q Now, if these (3) persons are inside the courtroom, will you please go down from the witness stand and tap the should of these three (3)? ATTY. BARRERA: I request as he taps each of them he should mention the name. A (Witness came down from the witness stand and tapped the shoulder of Antonio Plana, next as Rene Saldevea and another persons he named as Edgardo Perayra.

PUBLIC PROSECUTOR CONTINUING: Q Now, what else did you see?

A The first, at first I saw the three persons holding the victim and the other one is on top of the victim. Later, I saw that the one who is on top of the girl raised his hand and stabbed the victim. Q A Q A Q Now, what happened after you saw that the one on top of the victim stabbed the victim? Because I was afraid, I ran away because they might also see me. Now, where did you proceed after you got frightened of what you saw? Going home to Poblacion Ilawod, Dumarao, Capiz. Were you able to immediately go home?

A I was not able to go home because when I passed by the house of Porferio Haguisan, he saw me and he invited me because it was their Milagrosa. Q A xxx How long did you stay in the house of your Compare Porferio? I stayed there long. I went home already 2:00 o'clock. xxx xxx

PUBLIC PROSECUTOR: Q Now, what did you do when you heard that a person was found there a dead person was found in that very place where you saw the accused on September 23, 1994, holding and raping? A I went to the Municipal Hall because I also heard that the accused were apprehended and I went there and I saw and recognized them. COURT: Q You mean to tell us Mr. Witness that on September 26, 1994, when the dead body was found in the feeder road of Cobe, you went to the Municipal Hall because the accused was arrested, is that what you mean? A Yes, sir.

PUBLIC PROSECUTOR: Q A Q A Q A What time have you gone to the Municipal Hall? Noon time. Now, who was the dead person that was found in that spot? Helen Perote. When this victim was still alive, have you any occasion to know her? Yes, I know her.

Q Now, how about the fourth man who was on top of the girl and whom you saw also stabbed the girl on the morning of September 23, 1994, did you recognize him? A On that incident I do not know him but when I saw him at the Municipal Hall I know him because they were also together. Q A And did you know who this fourth man was when you went to the Municipal Hall? Yes, sir, Richard Banday.

Q If he is inside the courtroom will you please go down from the witness stand and tap the shoulder of Richard Banday? A (Witness went down from the witness stand and tapped the shoulder of a person who, when asked answered his name as Richard Banday).33 Lagud remained unwavering and consistent even when he was under the grueling cross-examination by accusedappellants' counsel: ATTY. BARRERA: Q At that distance of 50 meters as you said from the place where you saw persons as if wrestling there was no obstruction to your view? A There were grasses and trees not so tall.

Q Now, would you agree with me that the place, I withdraw that. The place where you were and the area where you saw persons as if wrestling which is the elevated portion? A On the place where I was.

Q So, your portion being elevated you would agree with me that you can see the place where there are persons appearing to be wrestling because it was at the lower portion am I correct? A Q A Not so clear because there were grasses and that is why I went near. How were you able to identify the three (3) persons, namely, Plana, Saldevea and Perayra? When I came near that is the time that I recognized them.

Q Now, you said that you came nearer to the place where persons were wrestling and you said you were 20 meters from them but when measured it was actually 12 meters. The question is, why did you approach the place where you saw persons wrestling? A I went near so that it would be clear to me and I can recognize and confirm as to what they are doing.

Q You want to tell the Court that it was out of curiosity that you approached the area where you saw persons appearing to be wrestling? A Q A Yes, that is what I plan. You were not afraid instead you were curious isn't it? I was afraid that is why when I went near I also crouched.

Q Just answer my question. Were you afraid or you were curious that is why you approached the place where persons appeared to be wrestling. COURT: Compaero, if you have any correction just make a manifestation, just make it formal. ATTY. BARRERA: I am sorry, your honor. COURT: Proceed. A Just for curiosity sake.

ATTY. BARRERA: Q Now, at a distance of 12 meters you recognized three (3) persons holding the arms and leg of the one lying and another person on top of the woman lying is that it? A Yes, sir.

Q And at that distance of 12 meters you identified the three persons as the herein accused, Plana, Perayra, and Saldevea whom you met according to you for three times at the store of Antonio Mendoza, is that correct? A Yes, sir.

Q Now, 12 meters distance from the place where you were sitting up to the place where you pointed at is the area where you identified the accused holding and another one on top of the person lying, there was no obstruction from the area from the place where you were to the area where you saw? A It was clear because it was near.

Q As a matter of fact the only vegetation you can find in the premises from where you were meters away from the area where you saw what you are telling this Court as green grass? A Yes, sir. Short grasses.

Q And you identified only three persons holding not the one lying, you said it was Plana, Perayra and Saldevea, and you do not know the person on top of the person lying, who was covered on top by a man, was he a man or a woman? A I think it was a girl because I heard voices like that of a woman.

Q You think it was a girl. At a distance of 12 meters and you said it was clear to your view can you not identify the person lying and covered by one on top of as a woman? A It is not clear because it was covered by a person on top.

Q Definitely, you told the Court you do not know who was the person on top of the one lying, am I correct at that very moment?

Yes, sir.,

PUBLIC PROSECUTOR: Your honor, the translation is I did not yet know him. ATTY. BARRERA: Q A Q A Q A What part of his body that person who was on top you saw? From his head to his back. You did not see his face? No, sir. What was he actually doing when you saw him for the first time? He was on top of the girl.

PUBLIC PROSECUTOR: There is a continuation, your honor, he said "naga". A He was on top of the girl and he was

COURT: He was what? You say it? A Q A He is forcing that his will penetrate. What was that he wanted to have it penetrated? His organ.

Q Did the Court get you right that you said you saw you set properly. Make it of record that witness has been uneasy when being cross-examined. Don't make any undesirable you sit properly. Now, did the Court get you right that the man whom you saw at the top of the person lying was turning his back towards you? A I saw his head and back and he was not on the back view but side view.

PUBLIC PROSECUTOR: May I interpret. And his back was not actually against me but he was somewhat side view position upon me. COURT: Q A Q Did he have his clothes on when he was on top of the person lying? No, sir. You mean to tell us that he was naked throughout?

A Q A Q A Q A Q A

His pants was lowered down. Was he naked up? Yes, sir. At that distance can you see his organ? I cannot see but as if he is trying to force because his back was also moving. So actually you did not see his organ that he was trying to have it penetrated? No, sir. Did you see the organ of that woman lying down? No, sir.

ATTY. BARRERA: Q Now, so, did the man on top of that woman person lying whom you said was a girl had her pants you said lowered up to where? A Up to about his knees.

Q And the woman at the time you said the man was trying to force his organ penetrate that of a person lying was that person lying struggling or what was that person lying doing? A Q A Q A She was struggling and she was held by three persons. Alright, tell us, you identified Antonio Plana what was he holding at that moment you said you saw? The right foot of the girl. How about Perayra? On the left foot.

PUBLIC PROSECUTOR: I think not, foot, it is the leg (witness indicating a little above the ankle). A Left lower part of the leg.

ATTY. BARRERA: Q A And Rene Saldevea, what part was he holding, if any according to you? Two (2) hands (witness raising his two hands above his head closed together).

Q And at that position as you described none of the four (4) persons including the three you identified covered the mouth of the person lying? A I cannot tell because I cannot see.

Q A Q A Q A Q

You mean at a distance of 12 meters you cannot see if the mouth of the person lying was covered or not? I cannot see because she was covered by the person lying on top of her. You have not heard any sound or voice emanating from the person lying? I heard voices but it was not clear. Now, that voices you heard what were the nature of those voices? As if pleading. You wanted to tell us that the voice you heard was the crying or moaning or

PUBLIC PROSECUTOR: Your honor, the witness has already described the nature of the voices as if pleading. ATTY. BARRERA: I am trying to clarify what was it moaning, crying or saying something vocal. A Q A Crying. You did not hear any word being uttered? The words was (sic) not clear.

Q Now, the person lying (who is) whose pleading you heard was she moving or was she moving her body or any part of her body? A She was moving but she was held by three persons.

Q Now, you said that the person on top of that woman lying has his pants lowered up to his knee, on the other hand, the person lying did you see if she was totally naked or she had something on or you have not seen it? A On his top was naked but her pants was lowered on the left leg. The pants was already taken on the right leg, the pants was not taken off. Q A So that the person lying was not totally naked at the time you saw it? As to her body she was naked but only the pants on the right side was not taken off.

Q So at the moment because the upper part of the body had no clothes except portion of the right leg that still retains the pants you would know that it was a woman lying on the ground is that it? A Yes, sir.

Q And at that point of time while the three accused, Plana, Perayra, and Saldevea were holding the hands of the girl and the other one on to of her, can you tell this Court if these four (4) persons while doing those things as you described were conversing or uttered any word? A I heard voices but it was not clear.

Q A

You mean you heard voices being made by persons you saw? Yes, sir.

Q And you would like to tell the Court that at a distance of 12 meters from where you were you never heard audibly the words coming from their voices? A Q A Q A Q A Q A I cannot understand because their voices were low. Were they laughing? I have not noticed. So, you did not notice if they were laughing? No, sir. You did not hear if they were shouting at one another? No, sir. You did not hear any of them saying go ahead, we follow also? No, sir.

Q Now, and later you said you saw a person on top of that girl pulled a knife and stabbed that person lying whom you said was a girl is that it? A Yes, sir.

Q Considering that that person on top of that victim had dress over and had his pants on top of his knee how did he stabbed that victim whom you said was a woman? A I noticed that but I do not know where he get (sic) the knife but I noticed that he just raised his hand.

Q Not one of the three (3) whom you identified gave him the knife except that you only saw that person on top of that woman all of a sudden having a knife and stabbing is that it? A Yes, sir.

Q Now, is that person on top of the woman stabbing that woman did you hear any or uttered by that man stabbing that woman? A I did not notice the words he uttered.

PUBLIC PROSECUTOR: Your honor, there is a continuation on the answer, I did not notice if he uttered any word because immediately I ran away. ATTY. BARRERA: Anyway, let it stay in the record.

COURT: Proceed. ATTY. BARRERA: Q A Q A Q A By the way, how many times (did) you saw that man on top of the woman stabbed that woman? That was the first time when he raised his hand and stabbed her then I ran away. And so, you did not notice him how many times that person stabbed the woman? No, sir. At the time she was stabbed did you hear any voice being uttered. I heard as if there was a sound like a moan then I ran away.34

The testimony of Lagud positively identifying accused-appellants as the perpetrators of the dastardly crime was corroborated in its material points by the testimonies of the other prosecution witnesses. The prosecution had sufficiently established that accused-appellants were together and were drinking liquor at the early morning of September 23, 1994; Lagud saw them along the feeder road in Barangay Cobe raping a girl and later one of them stabbed her; Bustamante saw them boisterously laughing near the fishpond where the body of Helen was found; Rafael confirmed that Helen took that route on the way to their sister's house for the "milagrosa;" Rafael met accusedappellants, who were all drunk, along the feeder road while she was on her way to her sister's house and; when it was found on September 26, 1994, Helen's body had already been lifeless for more than seventy-two hours. In light of the positive identification and the other strong corroborative evidence, the trial court properly gave scant consideration to accused-appellants' defense of denial and alibi. Alibi is concededly one of the weakest defenses in criminal cases. It cannot prevail over, and is worthless in the face of, positive identification by credible witnesses that the accused perpetrated the crime.35 Aside from accused-appellants who expectedly gave self-serving testimonies, the defense presented other witnesses, mainly relatives of accused-appellants, to establish that they were not at the scene of the crime at the time of its commission. Unfortunately, alibi becomes less plausible when it is corroborated by friends and relatives who may then not be impartial witnesses.36 On the other hand, the defense failed to impute any ill motive on the part of the prosecution witnesses to testify falsely against accused-appellants. Moreover, accused-appellants' defense of alibi cannot be given credence considering that they themselves admit their proximity to the scene of the crime at the time that it occurred. Accused-appellants Plana and Banday claimed that they were at the time at the house of accused-appellant Plana's relatives in Barangay Cobe. Accused-appellants Saldevea and Perayra insisted that they were then in the house of Monina Saldevea in Barangay Cobe. It must be noted that the rape and killing of Helen was committed in the feeder road also in Barangay Cobe. For alibi to prosper, the following must be established: (a) the presence of accused-appellant in another place at the time of the commission of the offense and; (b) physical impossibility for him to be at the scene of the crime.37 Accusedappellants miserably failed to satisfy these requisites. Considering that they admit that they were all in Barangay Cobe, where Helen was raped and subsequently killed, it cannot be said that it was physically impossible for them to have committed the crime. Accused-appellants tried to discredit Lagud by making much of the fact that he did not immediately disclose what he witnessed to the authorities. This contention hardly destroys the testimony of Lagud and his credibility as a witness. As Lagud explained on cross-examination, he was afraid that accused-appellants would harm him had they known that he saw them commit the crime.38 Besides, as consistently held by this Court, there is no standard form of the human behavioral response to a startling or frightful experience and delay in bringing up the matter to the authorities do not destroy the veracity and credibility of the testimony offered. The Court takes judicial notice of some people's reluctance

to be involved in criminal trials. Failure to volunteer what one knows to law enforcement officials does not necessarily impair a witness' credibility.39 In obvious attempt to evade the capital penalty of death, accused-appellants opine that granting arguendo that they are guilty of any crime, the crime is only murder because the rape of Helen allegedly had not been sufficiently established. This argument is untenable. The evidence on record indubitably establish that, while the other accused-appellants forcibly held Helen, accused-appellant Banday had carnal knowledge of her. Thereafter, they killed her. Lagud categorically testified on this fact.40 The findings of the medico-legal corroborate Lagud's testimony, thus: Q In entry No. 14, vagina, introitus can easily insert 2 fingers/Hymen with lacerations 3 and 9 o'clock (old laceration) and on the state of decomposition. In that state of decomposition of the victim how were you able to determine the laceration of the hymen of the said victim? A Actually, what I did I asked help from the owner of the Funeral Homes to spread the thigh of the victim so that I can easily see the inside of the vagina. Upon opening, I can easily insert my two fingers because of that I tried to spread the vaginal canal I saw three (3) lacerations, I have also seen blood clotting in that area but one reason that I can easily insert may two (2) fingers is because the victim was already in the state of decomposition. xxx xxx xxx

Q Doctor, you said it could have been caused by the laceration that you found which is 6x9, in what or what could have caused the vaginal laceration? A In the vagina, the laceration in the hymen is caused only by sexual intercourse. If the female is a virgin, it could have been caused by sexual intercourse.41 In fine, accused-appellants' guilt for the crime of rape with homicide had been proved beyond reasonable doubt in this case. Further, the trial court rightly appreciated the existence of conspiracy among the accused-appellants. Their individual acts, taken as a whole, revealed that they shared a common design to rape and kill Helen. They acted in unison and cooperation to achieve the same unlawful objective.42 The principle that the act of one is the act of all is applicable to accused-appellants in this case. With respect to the second issue raised by accused-appellants, i.e., they were detained without judicial order and prior to the filing of the information, suffice it to say, that they already waived their right to question the irregularity, if any, in their arrest.43 Accused-appellants respectively entered a plea of "not guilty" at their arraignment.44 By so pleading, they submitted to the jurisdiction of the trial court, thereby curing any defect in their arrest, for the legality of an arrest affects only the jurisdiction of the court over their persons.45 Article 335 of the Revised Penal Code, as amended by Republic Act No. 7659, reads: Art. 335 When and how rape is committed. Rape is committed by having carnal knowledge of a woman under any of the following circumstances: 1. By using force and intimidation; 2. . . .; 3. . . . . xxx xxx xxx

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

Accused-appellants' guilt for the crime of rape with homicide having been established beyond reasonable doubt, the imposition of the penalty of death upon them is warranted. Four members of the Court maintain their position that Republic Act No. 7659, insofar as it prescribes the death penalty, is unconstitutional; nevertheless they submit to the ruling of the Court, by majority vote, that the law is constitutional and the death penalty should be accordingly imposed. However, there is need to modify the damages awarded to the heirs of Helen by the trial court. In addition to the sum of P25,000.00 as actual damages, the trial court awarded to the heirs of Helen the sum of P50,000.00 as civil indemnity. This amount should be increased in consonance with prevailing jurisprudence 46 fixing the civil indemnity in cases of rape with homicide at P100,000.00. The Court, likewise, finds it proper to award the sum of P50,000.00 as moral damages. The award of moral damages may be made to the heirs of the victim in a criminal proceeding without need of proof. The fact that they suffered the trauma of mental or physical and psychological sufferings which constitute the basis for moral damages under the Civil Code are too obvious to still require recital thereof at trial.47 WHEREFORE, the decision of the Regional Trial Court, Branch 15, Roxas City finding accused-appellants Antonio Plana, Edgardo Perayra, Rene Saldevea and Richard Banday, guilty of Rape with Homicide under Article 335 of the Revised Penal Code, as amended by Republic act No. 7659, and imposing upon them the supreme penalty of Death is AFFIRMED with the MODIFICATION that said accused-appellants are hereby ordered, jointly and severally, to pay the heirs of Helen Perote the amounts of P100,000.00 as civil indemnity, P50,000.00 as moral damages and P25,000.00 as actual damages. Let the records of this case be forwarded to the Office of the President upon finality of this decision for possible exercise of executive clemency in accordance with Article 83 of the Revised Penal Code, as amended by Section 25 of Republic Act No. 7659. SO ORDERED.

G.R. No. 113269

April 10, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. OSCAR CONDE y LUTOC, ALLAN ATIS y ABET and ALEJANDRO PEREZ, JR. y CARSILLAR, accused, OSCAR CONDE y LUTOC and ALLAN ATIS y ABET, accused-appellants. QUISUMBING, J .: On appeal is the decision 1 dated December 15, 1993, of the Regional Trial Court, Branch 129, Kalookan City finding accused Oscar Conde, Allan Atis and Alejandro Perez, Jr., guilty of the special complex crime of robbery with homicide and sentencing each of them to suffer the penalty of reclusion perpetua with the accessory penalties under the law, and to jointly and severally indemnify the heirs of each of the victims, Sukhdev Singh and Biant Singh, in the amount of P50,000.00. Accused Oscar Conde, Allan Atis and Alejandro Perez, Jr., were arraigned in an Information which reads: That, on or about the 25th day of May, 1992 in Kalookan City, Metro Manila and within the jurisdiction of this Honorable Court, the above-named accused, conspiring together and mutually helping one another, with intent to gain and by means of threats and intimidation upon the persons of SUKHDEV SINGH Y DHALNAL and BIANT SINGH Y SIDHU, did then and there wilfully, unlawfully and feloniously take, rob and carry away cash of unestimated amount and assorted merchandise such as umbrellas and beach towels, that on the occasion of the said robbery and for the purpose of enabling them to take, rob and carry away the aforementioned articles, the herein accused in pursuance of their conspiracy, did then and there wilfully, unlawfully and feloniously and with intent to kill, attack and stab with bladed weapons upon the persons of SUKHDEV SINGH Y DHALNAL and BIANT SINGH Y SIDHU on the different parts of the body, thereby inflicting upon said victims serious physical injuries which caused their death on the above-specified date. CONTRARY TO LAW.
2

The accused entered pleas of not guilty. During trial, the prosecution presented the testimonies of Apollo Romero, PO3 Rodencio Sevillano, and Dr. Gario Gajardo as witnesses. Apollo Romero, a resident of Santolan Street, Kalookan City, Metro Manila, testified that on May 25, 1992 at about 8:00 A.M., he was home sitting by the window and drinking coffee when he saw four men in Santolan Street block the path of two Indian nationals (bombay) on a motorcycle. One of the men, later identified as Oscar Conde, poked a gun at the

two Indians while his three companions approached and stabbed the Indians. He later identified the other two assailants as Alejandro Perez, Jr., and Allan Atis. He also saw Allan Atis take the goods 3 which were being sold by the two Indians on installment. After the stabbing, the four men fled from the crime scene towards Mabolo Street. The fourth assailant remained unidentified. Romero was about 25 to 35 meters away from the place where the crime was committed. 4 PO3 Rodencio Sevillano, testified that he was assigned with the Intelligence and Investigation Division (IID) of the PNP, Kalookan City. On May 25, 1992, he was told to investigate the abovecited incident. On May 30, 1992, the police arrested the three accused. Police recovered the weapons used in the robbery, when Felicidad Macabare, Conde's wife, went to the police station to talk to the accused. These weapons were discovered inside her bag after a routine inspection. Sevillano admitted, however, that they did not have a warrant of arrest when they apprehended the accused. Nor did they have a search warrant when they inspected Felicidad's bag and when they searched the house of a certain Jimmy where they found the stolen items. 5 Dario Gajardo, a doctor employed in the PNP Crime Laboratory Service at Station 4, Central Police District, Quezon City performed the post-mortem examination on the bodies of Sukhdev Singh and Biant Singh. He testified that the cause of death was cardio-respiratory arrest due to shock and hemorrhage secondary to stab wounds. Biant Singh sustained stab wounds on his lower stomach while Sukhdev Singh sustained stab wounds at the back and right portion of the ribs. 6 The defense presented five witnesses: Alejandro Perez, Jr., Oscar Conde, Allan Atis, Danilo Acutin and Anita Santos. Alejandro Perez, Jr. testified that Oscar Conde and Allan Atis were his townmates from Catbalogan, Samar. According to Perez, on May 25, 1992, at about 7:00 A.M., he went to the Madrigal Compound at Las Pias, Metro Manila to visit his cousin Danilo and apologize for not attending his uncle's 40th death anniversary and their fiesta. Upon his arrival they went to the Pulang Lupa Cemetery and visited the graves of his uncle and their grandfather. From the cemetery, they went home where they drank some beer until late afternoon. Together with Oscar Conde and Allan Atis, he was arrested in Tandang Sora, Quezon City on May 30, 1992. 7 Danilo Acutin corroborated Alejandro's testimony.
8

Oscar Conde testified that on May 25, 1992, he was in Barangay Polo Street, Paraaque mending his fishing net. He was with his wife, Felicidad Macabare; and his uncle, Tancio Loto. He said the police arrested Alejandro Perez, Jr., Allan Atis, Felicidad Macabare and him in Tandang Sora, Quezon City on May 30, 1992. 9 (Later reports indicated, however, that Felicidad was not among those arrested. 10 ) Allan Atis stated that he was in MCU where he worked as a construction worker for a certain Romy Ramos on May 25, 1992. He denied having anything to do with the death of the two Indian nationals. 11 On December 15, 1993, the trial court rendered its decision, thus: WHEREFORE, premises considered, this Court finds the accused Oscar Conde y Lutoc, Allan Atis y Abet and Alejandro Perez, Jr. y Carsillar guilty beyond reasonable doubt of the special complex crime of Robbery with Homicide as defined and penalized under Article 294, paragraph 1 of the Revised Penal Code, in relation to the Solis ruling. Accordingly, the 3 accused shall each serve the penalty of Reclusion Perpetua, with all the accessory penalties under the law. Pursuant to Section 7, Rule 117 of the 1985 Rules on Criminal Procedure, as amended, the 3 accused shall be credited with the period of their preventive detention. By way of compensatory damages, the accused shall jointly and severally indemnify the heirs, if any, of deceased SUKHDEV SINGH and BIANT SINGH in the sum of P50,000.00 for each, without subsidiary imprisonment in case of insolvency. SO ORDERED.
12

The three accused appealed. However, the counsel de parte for accused Alejandro Perez, Jr., Atty. Jose M. Marquez, failed to file brief for Perez, prompting this Court to dismiss his appeal. The decision of the trial court became final and

executory with respect to accused Alejandro Perez, Jr. Conde, who filed their separate briefs. Atis avers that the trial court erred:

13

Hence the present appeal concerns only appellants Atis and

I . . . IN GIVING WEIGHT AND CREDENCE TO THE TESTIMONY OF THE PROSECUTION WITNESSES AND IN DISREGARDING THE CLAIM OF THE DEFENSE. II . . . IN FINDING ACCUSED-APPELLANT ALLAN ATIS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH DOUBLE HOMICIDE DESPITE [OF] THE INSUFFICIENCY OF EVIDENCE. 14 Atis argues that the prosecution failed to establish his identity as one of the perpetrators of the crime. He alleges that Apollo Romero only saw him in court. Atis likewise claims that he was arrested without any warrant of arrest several days after the crime. 15 Oscar Conde avers that the trial court erred in: I . . . NOT HOLDING THE ARREST OF THE ACCUSED ILLEGAL II . . . ACCORDING THE TESTIMONIES OF PROSECUTION WITNESSES APOLLO ROMERO AND PO3 RODENCIO SEVILLANO FULL CREDENCE. III . . . HOLDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ROBBERY WITH DOUBLE (sic) HOMICIDE. 16 Oscar Conde claims that he was illegally arrested by the authorities. He adds that the Indian Embassy was pressuring the police to solve the murder. He avers that the testimony of Romero is insufficient to sustain his conviction. He cites the delay of Romero in reporting what he saw, hence Romero's testimony is unbelievable. Lastly, Conde wants this Court to disregard as evidence the stolen items and weapons illegally seized by the police. 17 The Office of the Solicitor General, for its part, filed its appellee's brief only in regard to Oscar Conde's appeal. According to the OSG, the testimony of Apollo Romero deserves full faith and credence since the appellants failed to show any improper motive on his part. The same is true for the testimony of PO3 Sevillano who also enjoys the presumption of regularity in the performance of his official duties. In conclusion, the Solicitor General prays that the conviction of the appellants be affirmed. Citing People vs. Escandor, 265 SCRA 444, 445 (1996), the OSG stresses that the findings of the trial court, especially on the credibility of witnesses, are generally accorded great weight and respect on appeal, because the trial court is in the best position to make an honest determination of the witnesses' behavior and deportment during trial. 18 In substance, the issues raised by both appellants are (1) Whether or not the identification made by Apollo Romero deserves credence; (2) Whether or not the arrests of the appellants were illegal; (3) Whether or not the alleged stolen objects, i.e., the beach towel and umbrella, can be presented in evidence. Anent the first issue, we are in agreement with the submission by the Office of the Solicitor General. First, factual findings of the trial court are conclusive upon this Court and its evaluation regarding the credibility of witnesses are

given great weight and respect unless there is a showing that the trial court had overlooked, misunderstood or misapplied some fact or circumstance of weight and substance that would have affected the result of the case. 19 Being in a better position to observe the witnesses for the prosecution as well as the defense, the trial court's appreciation of their testimony, truthfulness, honesty and candor deserves the highest respect. 20 Allan Atis insists that it was impossible for Romero to have identified him since Romero only saw him inside the court room and that Romero had not seen him before. However, there is nothing in law and jurisprudence which requires, as a condition sine qua non for the positive identification by a prosecution witness of a felon, that witness must first know the latter personally. 21 The fact that Romero never saw Atis before the crime was committed does not detract from the credibility and reliability of Romero's testimony. Oscar Conde insists that the delay of Romero in reporting the incident makes his testimony unworthy of credence. It is however well settled in jurisprudence that delay in divulging the names of perpetrators of a crime, if sufficiently explained, does not impair the credibility of the witness and his testimony. 22 Likewise, credibility is not affected by the initial reluctance of witnesses to volunteer information. 23 It is not uncommon for witnesses to a crime to show some reluctance about getting involved in a criminal case as, in fact, the natural reticence of most people to get involved is of judicial notice. 24 Romero categorically identified both Oscar Conde and Allan Atis as two of the perpetrators of the crime. Appellants failed to adduce any improper motive on his part which would motivate him to implicate them in the said crime. Absent such motive, the testimony of Romero should be accorded full faith and credence as the testimony of a disinterested party who only wants to see justice upheld. 25 The two appellants interposed the negative defenses of alibi and denial. But as held in several cases, these defenses cannot overcome the straightforward testimony and the positive identification made by a prosecution witness. 26 We now turn to the appellants' vehement assertion that they have been illegally arrested. The records of the case will show that the arrests of the appellants came after the lapse of 5 days from the time they were seen committing the crime. At the time they were arrested, the police were not armed with any warrants for their arrests. Section 5 of Rule 113, of the Revised Rules of Criminal Procedure 27 enumerates the instances when an arrest can be made without warrant, namely: (a) When, in his presence the person to be arrested has committed, is actually committing, or is attempting to commit an offense; (b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and (c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another. None of the above circumstances is present in this case. Appellants were merely walking along Tandang Sora Avenue and were not committing any crime. Neither can it be said that the crime had just been committed. Five days had already passed from the time of the robbery with homicide. It cannot also be said that the arresting officers had probable cause based on personal knowledge. PO3 Sevillano admitted that they learned about the suspects from Apollo Romero and certain unnamed informants. The third circumstance is patently not present. The lapse of five days gave the police more than enough time to conduct surveillance of the appellants and apply for a warrant of arrest. Clearly, appellants' rights provided in Sec. 2, Art. III of the Constitution 28 were violated. Unfortunately, appellants did not assert their constitutional rights prior to their arraignment. This is fatal to their case. An accused is estopped from assailing the legality of his arrest if he failed to move for the quashing of the Information against him before his arraignment. 29 When the appellants entered their pleas on arraignment without invoking their rights to question any irregularity, which might have accompanied their arrests, they voluntarily submitted themselves to the jurisdiction of the court and the judicial process. 30 Any objection, defect, or irregularity attending their arrests should had been made before they entered their pleas. 31 It is much too late for appellants to raise the question of their

warrantless arrests. Their pleas to the information upon arraignment constitute clear waivers of their rights against unlawful restraint of liberty. 32 Furthermore, the illegal arrest of an accused is not sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint after trial free from error. 33 The warrantless arrest, even if illegal, cannot render void all other proceedings including those leading to the conviction of the appellants and his co-accused, nor can the state be deprived of its right to convict the guilty when all the facts on record point to their culpability. 34 As for the stolen objects presented in evidence, their seizure is assailed by appellants. We agree that the warrantless search in the house of a certain Jimmy, based on the confession of accused Alejandro Perez, Jr., 35 is definitely questionable. PO3 Rodencio Sevillano categorically stated that they were able to recover the stolen items, i.e., the beach towel and the umbrella, because of the confession of Alejandro Perez, Jr. who was not assisted by counsel when he confessed and eventually led the police to the whereabouts of the said items. 36 The use of evidence against the accused obtained by virtue of his testimony or admission without the assistance of counsel while under custodial investigation is proscribed under Sections 12 and 17, Article III of the Constitution. 37 Under the libertarian exclusionary rule known as the "fruit of the poisonous tree", evidence illegally obtained by the state should not be used to gain other evidence because the illegally obtained evidence taints all evidence subsequently obtained. 38 Simply put, the objects confiscated at said house are inadmissible as evidence. Without the stolen objects as evidence, we are left with only the testimony of Apollo Romero that he saw Allan Atis take the beach towel and the umbrella. 39 A reading of the said testimony will indicate that such was not categorical and straightforward, to wit: Q: A: Q: A: Q: A: Q: A: Q: A: And can you tell us, Mr. Witness, more or less what did Allan Atis did (sic)? Yes, ma'm. What? He stabbed one of the Indian Nationals at the back. Can you still recall with what instrument did Allan Atis used (sic) in stabbing the Indian National at the back. I cannot recall anymore, ma'm. What about Alejandro Perez, what did he do? Allan Atis was the one who took the goods being sold by the Indian Nationals in installment. Who took the goods? Will you please identify the person who took the goods from the Indian Nationals? The one wearing the white t-shirt.

Atty. Yson Witness pointed to a person wearing a white t-shirt who when asked answered by the name of Allan Atis.
40

The identification of Allan Atis by Apollo Romero as the one who took the items was more of an afterthought and was not even responsive to the question made by the prosecutor. Aside from this, the ownership of the towel and the umbrella was not even established. In order to sustain a conviction for robbery with homicide, robbery must be proven as conclusively as the killing itself, otherwise, the crime would only be homicide or murder, as the case may be. 41 In this case, only the facts and causes of deaths were established with moral certainty. Hence, there can be no robbery with homicide. The appellants are only liable for two counts of homicide.

On the other hand, we find in order the search of the bag of Felicidad Macabare, at the time she was visiting her husband who was a detainee. PO3 Sevillano testified, this search is part of police standard operating procedure, 42 and is recognized as part of precautionary measures by the police to safeguard the safety of the detainees as well as the overall security of the jail premises. However, the weapons 43 confiscated from Felicidad Macabare, were not formally offered as evidence by the prosecution, 44 hence probatively valueless. 45 WHEREFORE, the assailed decision of the Regional Trial Court of Kalookan City, Branch 129, finding the appellants Oscar Conde and Allan Atis guilty of robbery with homicide is hereby MODIFIED. They are declared guilty only of two counts of homicide and each is hereby sentenced to suffer the indeterminate sentence of six (6) years and one (1) day of prision mayor to fourteen (14) years, eight (8) months, and one (1) day of reclusion temporal for each count of homicide. They are likewise ordered to indemnify jointly and severally the heirs of each of the victims, Sukhdev Singh and Biant Singh, in the amount of P50,000.00, and to pay the costs. SO ORDERED.