G.R. Nos. 111771-77 November 9, 1993 ANTONIO L. SANCHEZ, petitioner, vs. The Honorable HARRIET O.

DEMETRIOU (in her capacity as Presiding Judge of Regional Trial Court, NCR, Branch 70, Pasig), The Honorable FRANKLIN DRILON (in his capacity as Secretary of Justice), JOVENCITO R. ZUO, LEONARDO C. GUIYAB, CARLOS L. DE LEON, RAMONCITO C. MISON, REYNALDO J. LUGTU, and RODRIGO P. LORENZO, the last six respondents in their official capacities as members of the State Prosecutor's Office), respondents. Mario E. Ongkiko and Marciano P. Brion, Jr. for petitioner. The Solicitor General for respondents.

CRUZ, J.:
There is probably no more notorious person in the country today than Mayor Antonio L. Sanchez of Calauan, Laguna, who stands accused of an unspeakable crime. On him, the verdict has already been rendered by many outraged persons who would immediately impose on him an angry sentence. Yet, for all the prejudgments against him, he is under our Constitution presumed innocent as long as the contrary has not been proved. Like any other person accused of an offense, he is entitled to the full and vigilant protection of the Bill of Rights. Sanchez has brought this petition to challenge the order of the respondent judge denying his motion to quash the informations for rape with homicide filed against him and six other persons. We shall treat it as we would any other suit filed by any litigant hoping to obtain a just and impartial judgment from this Court. The pertinent facts are as follows: On July 28, 1993, the Presidential Anti-Crime Commission requested the filing of appropriate charges against several persons, including the petitioner, in connection with the rape-slay of Mary Eileen Sarmenta and the killing of Allan Gomez. Acting on this request, the Panel of State Prosecutors of the Department of Justice conducted a preliminary investigation on August 9, 1993. Petitioner Sanchez was not present but was represented by his counsel, Atty. Marciano Brion, Jr. On August 12, 1993, PNP Commander Rex Piad issued an "invitation" to the petitioner requesting him to appear for investigation at Camp Vicente Lim in Canlubang, Laguna. It was served on Sanchez in the morning of August 13,1993, and he was immediately taken to the said camp. At a confrontation that same day, Sanchez was positively identified by Aurelio Centeno, and SPO III Vivencio Malabanan, who both executed confessions implicating him as a principal in the rape-slay of Sarmenta and the killing of Gomez. The petitioner was then placed on "arrest status" and taken to the Department of Justice in Manila. The respondent prosecutors immediately conducted an inquest upon his arrival, with Atty. Salvador Panelo as his counsel. After the hearing, a warrant of arrest was served on Sanchez. This warrant was issued on August 13, 1993, by Judge Enrico A. Lanzanas of the Regional Trial Court of Manila, Branch 7, in connection with Criminal Cases Nos. 93-124634 to 93-124637 for violation of Section 8, in relation to Section 1, of R.A. No. 6713. Sanchez was forthwith taken to the CIS Detention Center, Camp Crame, where he remains confined. On August 16, 1993, the respondent prosecutors filed with the Regional Trial Court of Calamba, Laguna, seven informations charging Antonio L. Sanchez, Luis Corcolon, Rogelio Corcolon, Pepito Kawit, Baldwin Brion, Jr., George Medialdea and Zoilo Ama with the rape and killing of Mary Eileen Sarmenta.

On August 26, 1993, Judge Eustaquio P. Sto. Domingo of that court issued a warrant for the arrest of all the accused, including the petitioner, in connection with the said crime. The respondent Secretary of Justice subsequently expressed his apprehension that the trial of the said cases might result in a miscarriage of justice because of the tense and partisan atmosphere in Laguna in favor of the petitioner and the relationship of an employee, in the trial court with one of the accused. This Court thereupon ordered the transfer of the venue of the seven cases to Pasig, Metro Manila, where they were raffled to respondent Judge Harriet Demetriou. On September 10, 1993, the seven informations were amended to include the killing of Allan Gomez as an aggravating circumstance. On that same date, the petitioner filed a motion to quash the informations substantially on the grounds now raised in this petition. On September 13, 1993, after oral arguments, the respondent judge denied the motion. Sanchez then filed with this Court the instant petition for certiorari and prohibition with prayer for a temporary restraining order/writ of injunction. The petitioner argues that the seven informations filed against him should be quashed because: 1) he was denied the right to present evidence at the preliminary investigation; 2) only the Ombudsman had the competence to conduct the investigation; 3) his warrantless arrest is illegal and the court has therefore not acquired jurisdiction over him, 4) he is being charged with seven homicides arising from the death of only two persons; 5) the informations are discriminatory because they do not include Teofilo Alqueza and Edgardo Lavadia; and 6) as a public officer, he can be tried for the offense only by the Sandiganbayan.

The respondents submitted a Comment on the petition, to which we required a Reply from the petitioner within a non-extendible period of five days. 1 The Reply was filed five days late. 2 The Court may consider his noncompliance an implied admission of the respondents' arguments or a loss of interest in prosecuting his petition, which is a ground for its dismissal. Nevertheless, we shall disregard this procedural lapse and proceed to discuss his petition on the basis of the arguments before us.
The Preliminary Investigation. The records of the hearings held on August 9 and 13, 1993, belie the petitioner's contention that he was not accorded the right to present counter-affidavits. During the preliminary investigation on August 9, 1993, the petitioner's counsel, Atty. Marciano Brion, manifested that his client was waiving the presentation of a counter-affidavit, thus: Atty. Brion, Jr.: [W]e manifest that after reviewing them there is nothing to rebut or countermand all these statements as far as Mayor Sanchez is concerned, We are not going to submit any counter-affidavit. ACSP Zuo to Atty. Brion: xxx xxx xxx Q. So far, there are no other statements. A. If there is none then, we will not submit any counter-affidavit because we believe there is nothing to rebut or countermand with all these statements. Q. So, you are waiving your submission of counter-affidavit?
A. Yes, your honor, unless there are other witnesses who will come up soon.
3

Nonetheless, the head of the Panel of Prosecutors, respondent Jovencito Zuo, told Atty. Brion that he could still file a counter-affidavit up to August 27, 1993. No such counter-affidavit was filed. During the hearing on August 1'3, 1993, respondent Zuo furnished the petitioner's counsel, this time Atty. Salvador Panelo, with copies of the sworn statements of Centeno and Malabanan, and told him he could submit counteraffidavits on or before August 27, 1993. The following exchange ensued: ACSP Zuo: For the record, we are furnishing to you the sworn statement of witness Aurelio Centeno y Roxas and the sworn statement of SPO3 Vivencio Malabanan y Angeles. Do I understand from you that you are again waiving the submission of counteraffidavit? Atty. Panelo: Yes. ACSP Zuo:
So, insofar as the respondent, Mayor Antonio Sanchez is concerned, this case is submitted for resolution. 4

On the other hand, there is no support for the petitioner's subsequent manifestation that his counsel, Atty. Brion, was not notified of the inquest held on August 13, 1993, and that he was not furnished with the affidavits sworn to on that date by Vivencio Malabanan and Aurelio Centeno, or with their supplemental affidavits dated August 15, 1993. Moreover, the above-quoted excerpt shows that the petitioner's counsel at the hearing held on August 13, 1993, was not Atty. Brion but Atty. Panelo. The petitioner was present at that hearing and he never disowned Atty. Panelo as his counsel. During the entire proceedings, he remained quiet and let this counsel speak and argue on his behalf. It was only in his tardy Reply that he has suddenly bestirred himself and would now question his representation by this lawyer as unauthorized and inofficious. Section 3, Paragraph (d), Rule 112 of the Rules of Court, provides that if the respondent cannot be subpoenaed or, if subpoenaed, does not submit counter-affidavits, the investigating officer shall base his resolution on the evidence presented by the complainant.

Just as the accused may renounce the right to be present at the preliminary investigation 5, so may he waive the right to present counter-affidavits or any other evidence in his defense. At any rate, it is settled that the absence of a preliminary investigation does not impair the validity of the information or otherwise render the same defective and neither does it affect the jurisdiction of the court over the case or constitute a ground for quashing the information. 6 If no preliminary investigation has been held, or if it is flawed, the trial court may, on motion of the accused, order an investigation or reinvestigation and hold the proceedings in the criminal case in abeyance. 7 In the case at bar, however, the respondent judge saw no reason or need for such a step. Finding no arbitrariness in her factual conclusions, we shall defer to her judgment.
Jurisdiction of the Ombudsman

Invoking the case of Deloso v. Domingo, 8 the petitioner submits that the proceedings conducted by the Department of Justice are null and void because it had no jurisdiction over the case. His claim is that it is the

Office of the Ombudsman that is vested with the power to conduct the investigation of all cases involving public officers like him, as the municipal mayor of Calauan, Laguna. The Ombudsman is indeed empowered under Section 15, paragraph (1) of R.A. 6770 to investigate and prosecute, any illegal act or omission of any public official. However, as we held only two years ago in the case ofAguinaldo v. Domagas, 9 this authority "is not an exclusive authority but rather a shared or concurrent authority in. respect of the offense charged."
Petitioners finally assert that the information and amended information filed in this case needed the approval of the Ombudsman. It is not disputed that the information and amended information here did not have the approval of the Ombudsman. However, we do not believe that such approval was necessary at all. In Deloso v. Domingo, 191 SCRA. 545 (1990), the Court held that the Ombudsman has authority to investigate charges of illegal or omissions on the part of any public official, i.e., any crime imputed to a public official. It must, however, be pointed out that the authority of the Ombudsman to investigate "any [illegal] act or omission of any public official" (191 SCRA at 550) isnot an exclusive authority but rather a shared or concurrent authority in respect of the offense here charged, i.e., the crime of sedition. Thus, the non-involvement of the office of the Ombudsman in the present case does not have any adverse legal consequence upon the authority the panel of prosecutors to file and prosecute the information or amended information.

In fact, other investigatory agencies, of the government such as the Department of Justice, in connection with the charge of sedition, 10 and the Presidential Commission on Good Government, in ill-gotten wealth cases, 11 may conduct the investigation,
The Arrest Was petitioner Sanchez arrested on August 13, 1993? "Arrest" is defined under Section 1, Rule 113 of the Rules of Court as the taking of a person into custody in order that he may be bound to answer for the commission of an offense. Under Section 2 of the same Rule, an arrest is effected by an actual restraint of the person to be arrested or by his voluntary submission to the custody of the person making the arrest.

Application of actual force, manual touching of the body, physical restraint or a formal declaration of arrest is not, required. It is enough that there be an intent on the part of one of the parties to arrest the other and an intent onthe part of the other to submit, under the belief and impression that submission is necessary. 12
The petitioner was taken to Camp Vicente Lim, Canlubang, Laguna, by virtue of a letter-invitation issued by PNP Commander Rex Piad requesting him to appear at the said camp for investigation.

In Babst v. National Intelligence Board 13 this Court declared:

Be that as it may, it is not idle to note that ordinarily, an invitation to attend a hearing and answer some questions, which the person invited may heed or refuse at his pleasure, is not illegal or constitutionally objectionable. Under certain circumstances, however, such an invitation can easily assume a different appearance. Thus, where the invitation comes from a powerful group composed predominantly of ranking military officers issued at a time when the country has just emerged from martial rule and when the suspension of the privilege of the writ of habeas corpus has not entirely been lifted, and the designated interrogation site is a military camp, the same can be easily taken,not as a strictly voluntary invitation which it purports to be, but as an authoritative command which one can only defy at his peril. . . . (Emphasis supplied) In the case at bar, the invitation came from a high-ranking military official and the investigation of Sanchez was to be made at a military camp. Although in the guise of a request, it was obviously a command or an order of arrest that the petitioner could hardly he expected to defy. In fact, apparently cowed by the "invitation," he went without protest (and in informal clothes and slippers only) with the officers who had come to fetch him.

It may not be amiss to observe that under R.A. No. 7438, the requisites of a "custodial investigation" are applicable even to a person not formally arrested but merely "invited" for questioning. It should likewise be noted that at Camp Vicente Lim, the petitioner was placed on "arrest status" after he was pointed to by Centeno and Malabanan as the person who first raped Mary Eileen Sarmenta. Respondent Zuo himself acknowledged during the August 13, 1993 hearing that, on the basis of the sworn statements of the two state witnesses, petitioner had been "arrested." We agree with the petitioner that his arrest did not come under Section 5, Rule 113 of the Rules of Court, providing as follows: 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; and (c) When the person to be arrested is a prisoner who has escapes 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. It is not denied that the arresting officers were not present when the petitioner allegedly participated in the killing of Allan Gomez and the rape-slay of Mary Eileen Sarmenta. Neither did they have any personal knowledge that the petitioner was responsible therefor because the basis of the arrest was the sworn statements of Centeno and Malabanan. Moreover, as the rape and killing of Sarmenta allegedly took place on June 28-June 29, 1993, or fortysix days before the date of the arrest, it cannot be said that the offense had "in fact just been committed" when the petitioner was arrested. The original warrantless arrest of the petitioner was doubtless illegal. Nevertheless, the Regional Trial Court lawfully acquired jurisdiction over the person of the petitioner by virtue of the warrant of arrest it issued on August 26, 1993 against him and the other accused in connection with the rape-slay cases. It was belated, to be sure, but it was nonetheless legal.

Even on the assumption that no warrant was issued at all, we find that the trial court still lawfully acquired jurisdiction over the person of the petitioner. The rule is that if the accused objects to the jurisdiction of the court over his person, he may move to quash the information, but only on that ground. If, as in this case, the accused raises other grounds in the motion to quash, he is deemed to have waived that objection and to have submitted his person to the jurisdiction of that court. 14 The Court notes that on August 13, 1993, after the petitioner was unlawfully arrested, Judge Lanzanas issued a warrant of arrest against Antonio L. Sanchez in connection with Criminal Cases Nos. 93-124634 to 93124637 for violation of R.A No. 6713. 15 Pending the issuance of the warrant of arrest for the rape-slay cases, this first warrant served as the initial justification for his detention. The Court also adverts to its uniform ruling that the filing of charges, and the issuance of the corresponding warrant of arrest, against a person invalidly detained will cure the defect of that detention or at least deny him the right to be released because of such defect. * Applicable by analogy to the case at bar is Rule 102 Section 4 of the Rules of Court that:
Sec, 4. When writ is not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge or by virtue of a judgment or order of a court of record, and that the court or judge had jurisdiction to issue the process, render the judgment, or make the order, the writ shall not be allowed; or if the jurisdiction appears after the writ is allowed, the person shall not be discharged by reason of any

informality or defect in the process, judgment, or order. Nor shall, anything in this rule be held to authorize the discharge of a person charged with or convicted of an offense in the Philippines or of a person suffering imprisonment under lawful judgment.

In one case, 16 the petitioner, sued on habeas corpus on the ground that she had been arrested by virtue of a John Doe warrant. In their return, the respondents declared that a new warrant specifically naming her had been issued, thus validating her detention. While frowning at the tactics of the respondents, the Court said:
The, case has, indeed, become moot and academic inasmuch as the new warrant of arrest complies with the requirements of the Constitution and the Rules of Court regarding the particular description of the person to be arrested. While the first warrant was unquestionably void, being a general warrant, release of the petitioner for that reason will be a futile act as it will be followed by her immediate re-arrest pursuant to the new and valid warrant, returning her to the same prison she will just have left. This Court will not participate in such a meaningless charade.

The same doctrine has been consistently followed by the Court, 17 more recently in the Umil case. 18
The Informations

The petitioner submits that the seven informations charging seven separate homicides are absurd because the two victims in these cases could not have died seven times.
This argument was correctly refuted by the Solicitor General in this wise: Thus, where there are two or more offenders who commit rape, the homicide committed on the occasion or by reason of each rape, must be deemed as a constituent of the special complex crime of rape with homicide. Therefore, there will be as many crimes of rape with homicide as there are rapes committed. In effect, the presence of homicide qualifies the crime of rape, thereby raising its penalty to the highest degree. Thus, homicide committed on the occasion or by reason of rape, loses its character as an independent offense, but assumes a new character, and functions like a qualifying circumstance. However,by fiction of law, it merged with rape to constitute an constituent element of a special complex crime of rape with homicide with a specific penalty which is in the highest degree, i.e. death (reduced to reclusion perpetua with the suspension of the application of the death penalty by the Constitution). It is clearly provided in Rule 110 of the Rules of Court that: Sec. 13. Duplicity of offense. A complaint or information must charge but one offense, except only in those cases in which existing laws prescribe a simple punishment for various offenses. Rape with homicide comes within the exception under R.A. 2632 and R.A. 4111, amending the Revised Penal Code. The petitioner and his six co-accused are not charged with only one rape committed by him in conspiracy with the other six. Each one of the seven accused is charged with having himself raped Sarmenta instead of simply helping Sanchez in committing only one rape. In other words, the allegation of the prosecution is that the girl was raped seven times, with each of the seven accused taking turns in abusing her with the assistance of the other six. Afterwards, their lust satisfied, all seven of them decided to kill and thus silence Sarmenta. Every one of the seven accused is being charged separately for actually raping Sarmenta and later killing her instead of merely assisting the petitioner in raping and then slaying her. The separate informations filed against each of them allege that each of the seven successive rapes is complexed by the subsequent slaying of Sarmenta and aggravated by the killing of Allan Gomez by her seven attackers. The separate rapes were committed in succession by the seven accused, culminating in the slaying of Sarmenta.

It is of course absurd to suggest that Mary Eileen Sarmenta and Allan Gomez were killed seven times, but the informations do not make such a suggestion. It is the petitioner who does so and is thus hoist by his own petard. The Alleged Discrimination The charge of discrimination against the petitioner because of the non-inclusion of Teofilo Alqueza and Edgardo Lavadia in the informations must also be dismissed.

While the prosecuting officer is required by law to charge all those who in his opinion, appear to be guilty, he nevertheless cannot be compelled to include in the information a person against whom he believes no sufficient evidence of guilt exists. 19 The appreciation of the evidence involves the use of discretion on the part of the prosecutor, and we do not find in the case at bar a clear showing by the petitioner of a grave abuse of such discretion. 20 The decision of the prosecutor may be reversed or modified by the Secretary of Justice or in special cases by the President of the Philippines. 21 But even this Court cannot order the prosecution of a person against whom the prosecutor does not find sufficient evidence to support at least a prima facie case. The courts try and absolve or convict the accused but as a rule have no part in the initial decision to prosecute him. The possible exception is where there is an unmistakable showing of a grave abuse of discretion that will justify judicial intrusion into the precincts of the executive. But in such a case the proper remedy to call for such exception is a petition for mandamus, not certiorari or prohibition. 22 Moreover, before resorting to this relief, the party seeking the inclusion of another person as a co-accused in the same case must first avail itself of other adequate remedies such as the filing of a motion for such inclusion. 23
At any rate, it is a preposterous contention that because no charges have been filed against Alqueza and Lavadia, the charges against the petitioner and his co-accused should also be dropped. Jurisdiction of the Sandiganbayan The petitioner argued earlier that since most of the accused were incumbent public officials or employees at the time of the alleged commission of the crimes, the cases against them should come under the jurisdiction of the Sandiganbayan and not of the regular courts. This contention was withdrawn in his Reply but we shall discuss it just the same for the guidance of all those concerned. Section 4, paragraph (a) of P.D. No, 1606, as amended by P.D. No.1861, provides: Sec. 4. Jurisdiction. The Sandiganbayan shall exercise: a) Exclusive original jurisdiction in all cases involving: (1) Violations of Republic Act No. 3019, as amended, otherwise known as the AntiGraft and Corrupt Practices Act, Republic Act No. 1379, and Chapter II, Section 2, Title VII of the Revised Penal Code: (2) Other offenses or felonies committed by public officers and employees in relation to their office, including those employed in government-owned or controlled corporations, whether simple or complexed with other crimes, where the penalty prescribed by law is higher than prision correccional or imprisonment for six (6) years, or a fine of P6,000.00. . . . (Emphasis supplied) The crime of rape with homicide with which the petitioner stands charged obviously does not fall under paragraph (1), which deals with graft and corruption cases. Neither is it covered by paragraph (2) because it is not an offense committed in relation to the office of the petitioner.

In Montilla v, Hilario, 24 this Court described the "offense committed in relation to the office" as follows:

[T]he relation between the crime and the office contemplated by the Constitution is, in our opinion, direct and not accidental. To fall into the intent of the Constitution, the relation has to be such that, in the legal sense, the offense cannot exist without the office. In other words, the office must be a constituent element of the crime as defined in the statute, such as, for instance, the crimes defined and punished in Chapter Two to Six, Title Seven, of the Revised Penal Code. Public office is not of the essence of murder. The taking of human life is either murder or homicide whether done by a private citizen or public servant, and the penalty is the same except when the perpetrator. being a public functionary took advantage of his office, as alleged in this case, in which event the penalty is increased. But the use or abuse of office does not adhere to the crime as an element; and even as an aggravating circumstance, its materiality arises not from the allegations but on the proof, not from the fact that the criminals are public officials but from the manner of the commission of the crime

There is no direct relation between the commission of the crime of rape with homicide and the petitioner's office as municipal mayor because public office is not an essential element of the crime charged. The offense can stand independently of the office. Moreover, it is not even alleged in the information that the commission of the crime charged was intimately connected with the performance of the petitioner's official functions to make it fall under the exception laid down in People v. Montejo. 25
In that case, a city mayor and several detectives were charged with murder for the death of a suspect as a result of a "third degree" investigation held at a police substation. The appearance of a senator as their counsel was questioned by the prosecution on the ground that he was inhibited by the Constitution from representing them because they were accused of an offense committed in relation to their office. The Court agreed. It held that even if their position was not an essential ingredient of the offense, there was nevertheless an intimate connection between the office and the offense, as alleged in the information, that brought it within the definition of an offense "committed in relation to the public office." As Chief Justice Concepcion said: It is apparent from these allegations that, although public office is not an element of the crime of murder in abstract, as committed by the main respondents herein, according to the amended information, the offense therein charged is intimately connected with their respective offices and was perpetrated while they were in the performance, though improper or irregular, of their official functions. Indeed they had no personal motive to commit the crime and they would not have committed it had they not held their aforesaid offices. The co-defendants of respondent Leroy S. Brown, obeyed his instructions because he was their superior officer, as Mayor of Basilan City. (Emphasis supplied). We have read the informations in the case at bar and find no allegation therein that the crime of rape with homicide imputed to the petitioner was connected with the discharge of his functions as municipal mayor or that there is an "intimate connection" between the offense and his office. It follows that the said crime, being an ordinary offense, is triable by the regular courts and not the Sandiganbayan. Conclusion As above demonstrated, all of the grounds invoked by the petitioner are not supported by the facts and the applicable law and jurisprudence. They must, therefore, all be rejected. In consequence, the respondent judge, who has started the trial of the criminal cases against the petitioner and his co-accused, may proceed therewith without further hindrance. It remains to stress that the decision we make today is not a decision on the merits of the criminal cases being tried below. These will have to be decided by the respondent judge in accordance with the evidence that is still being received. At this time, there is yet no basis for judgment, only uninformed conjecture. The Court will caution against such irrelevant public speculations as they can be based only on imperfect knowledge if not officious ignorance.

WHEREFORE, the petition is DISMISSED. The respondent judge is DIRECTED to continue with the trial of Criminal Cases Nos. 101141, 101142, 101143, 101144, 101145, 101146 and 101147 and to decide them with deliberate dispatch. SO ORDERED. G.R. No. L-53373 June 30, 1987 MARIO FL. CRESPO, petitioner, vs. HON. LEODEGARIO L. MOGUL, Presiding Judge, CIRCUIT CRIMINAL COURT OF LUCENA CITY, 9th Judicial Dist., THE PEOPLE OF THE PHILIPPINES, represented by the SOLICITOR GENERAL, RICARDO BAUTISTA, ET AL., respondents.

GANCAYCO, J.:
The issue raised in this ease is whether the trial court acting on a motion to dismiss a criminal case filed by the Provincial Fiscal upon instructions of the Secretary of Justice to whom the case was elevated for review, may refuse to grant the motion and insist on the arraignment and trial on the merits.

On April 18, 1977 Assistant Fiscal Proceso K. de Gala with the approval of the Provincial Fiscal filed an information for estafa against Mario Fl. Crespo in the Circuit Criminal Court of Lucena City which was docketed as Criminal Case No. CCCIX-52 (Quezon) '77.1 When the case was set for arraigment the accused filed a motion to defer arraignment on the ground that there was a pending petition for review filed with the Secretary of Justice of the resolution of the Office of the Provincial Fiscal for the filing of the information. In an order of August 1, 1977, the presiding judge, His Honor, Leodegario L. Mogul, denied the motion. 2 A motion for reconsideration of the order was denied in the order of August 5, 1977 but the arraignment was deferred to August 18, 1977 to afford nine for petitioner to elevate the matter to the appellate court. 3 A petition for certiorari and prohibition with prayer for a preliminary writ of injunction was filed by the accused in the Court of Appeals that was docketed as CA-G.R. SP No. 06978. 4 In an order of August 17, 1977 the Court of Appeals restrained Judge Mogul from proceeding with the arraignment of the accused until further orders of the Court. 5 In a comment that was filed by the Solicitor General he recommended that the petition be given due course. 6 On May 15, 1978 a decision was rendered by the Court of Appeals granting the writ and perpetually restraining the judge from enforcing his threat to compel the arraignment of the accused in the case until the Department of Justice shall have finally resolved the petition for review. 7 On March 22, 1978 then Undersecretary of Justice, Hon.Catalino Macaraig, Jr., resolving the petition for review reversed the resolution of the Office of the Provincial Fiscal and directed the fiscal to move for immediate dismissal of the information filed against the accused. 8 A motion to dismiss for insufficiency of evidence was filed by the Provincial Fiscal dated April 10, 1978 with the trial court, 9 attaching thereto a copy of the letter of Undersecretary Macaraig, Jr. In an order of August 2, 1978 the private prosecutor was given time to file an opposition thereto. 10 On November 24, 1978 the Judge denied the motion and set the arraigniment stating:
ORDER For resolution is a motion to dismiss this rase filed by the procuting fiscal premised on insufficiency of evidence, as suggested by the Undersecretary of Justice, evident from Annex "A" of the motion wherein, among other things, the Fiscal is urged to move for dismissal for the reason that the check involved having been issued for the payment of a pre-existing obligation the Hability of the drawer can only be civil and not criminal.

The motion's thrust being to induce this Court to resolve the innocence of the accused on evidence not before it but on that adduced before the Undersecretary of Justice, a matter that not only disregards the requirements of due process but also erodes the Court's independence and integrity, the motion is considered as without merit and therefore hereby DENIED. WHEREFORE, let the arraignment be, as it is hereby set for December 18, 1978 at 9:00 o'clock in the moming.
SO ORDERED. 11

The accused then filed a petition for certiorari, prohibition and mandamus with petition for the issuance of preliminary writ of prohibition and/or temporary restraining order in the Court of Appeals that was docketed as CA-G.R. No. SP-08777. 12 On January 23, 1979 a restraining order was issued by the Court of Appeals against the threatened act of arraignment of the accused until further orders from the Court. 13 In a decision of October 25, 1979 the Court of Appeals dismissed the petition and lifted the restraining order of January 23, 1979. 14 A motion for reconsideration of said decision filed by the accused was denied in a resolution of February 19, 1980.15 Hence this petition for review of said decision was filed by accused whereby petitioner prays that said decision be reversed and set aside, respondent judge be perpetually enjoined from enforcing his threat to proceed with the arraignment and trial of petitioner in said criminal case, declaring the information filed not valid and of no legal force and effect, ordering respondent Judge to dismiss the said case, and declaring the obligation of petitioner as purely civil. 16
In a resolution of May 19, 1980, the Second Division of this Court without giving due course to the petition required the respondents to comment to the petition, not to file a motiod to dismiss, within ten (10) days from notice. In the comment filed by the Solicitor General he recommends that the petition be given due course, it being meritorious. Private respondent through counsel filed his reply to the comment and a separate conunent to the petition asking that the petition be dismissed. In the resolution of February 5, 1981, the Second Division of this Court resolved to transfer this case to the Court En Banc. In the resolution of February 26, 1981, the CourtEn Banc resolved to give due course to the petition. Petitioner and private respondent filed their respective briefs while the Solicitor General filed a Manifestation in lieu of brief reiterating that the decision of the respondent Court of Appeals be reversed and that respondent Judge be ordered to dismiss the information.

It is a cardinal principle that an criminal actions either commenced by complaint or by information shall be prosecuted under the direction and control of the fiscal. 17 The institution of a criminal action depends upon the sound discretion of the fiscal. He may or may not file the complaint or information, follow or not fonow that presented by the offended party, according to whether the evidence in his opinion, is sufficient or not to establish the guilt of the accused beyond reasonable doubt. 18 The reason for placing the criminal prosecution under the direction and control of the fiscal is to prevent malicious or unfounded prosecution by private persons. 19 It cannot be controlled by the complainant. 20 Prosecuting officers under the power vested in them by law, not only have the authority but also the duty of prosecuting persons who, according to the evidence received from the complainant, are shown to be guilty of a crime committed within the jurisdiction of their office. 21 They have equally the legal duty not to prosecute when after an investigation they become convinced that the evidence adduced is not sufficient to establish a prima facie case. 22 It is through the conduct of a preliminary investigation 23 that the fiscal determines the existence of a puma facie case that would warrant the prosecution of a case. The Courts cannot interfere with the fiscal's discretion and control of the criminal prosecution. It is not prudent or even permissible for a Court to compel the fiscal to prosecute a proceeding originally initiated by him on an information, if he finds that the evidence relied upon by him is insufficient for conviction. 24 Neither has the Court any power to order the fiscal to prosecute or file an information within a certain period of time, since this would interfere with the fiscal's discretion and control of criminal prosecutions. 25 Thus, a fiscal who asks for the dismissal of the case for insufficiency of evidence has authority to do so, and Courts that grant the same commit no error. 26 The fiscal may re-investigate a case and

subsequently move for the dismissal should the re-investigation show either that the defendant is innocent or that his guilt may not be established beyond reasonable doubt. 27 In a clash of views between the judge who did not investigate and the fiscal who did, or between the fiscal and the offended party or the defendant, those of the Fiscal's should normally prevail. 28 On the other hand, neither an injunction, preliminary or final nor a writ of prohibition may be issued by the courts to restrain a criminal prosecution 29 except in the extreme case where it is necessary for the Courts to do so for the orderly administration of justice or to prevent the use of the strong arm of the law in an op pressive and vindictive manner. 30 However, the action of the fiscal or prosecutor is not without any limitation or control. The same is subject to the approval of the provincial or city fiscal or the chief state prosecutor as the case maybe and it maybe elevated for review to the Secretary of Justice who has the power to affirm, modify or reverse the action or opinion of the fiscal. Consequently the Secretary of Justice may direct that a motion to dismiss the rase be filed in Court or otherwise, that an information be filed in Court. 31 The filing of a complaint or information in Court initiates a criminal action. The Court thereby acquires jurisdiction over the case, which is the authority to hear and determine the case. 32 When after the filing of the complaint or information a warrant for the arrest of the accused is issued by the trial court and the accused either voluntarily submited himself to the Court or was duly arrested, the Court thereby acquired jurisdiction over the person of the accused. 33 The preliminary investigation conducted by the fiscal for the purpose of determining whether a prima facie case exists 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. 34 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 rase thereafter should be addressed for the consideration of the Court, 35 The only qualification is that the action of the Court must not impair the substantial rights of the accused. 36 or the right of the People to due process of law. 36a
Whether the accused had been arraigned or not and whether it was due to a reinvestigation by the fiscal or a review by the Secretary of Justice whereby a motion to dismiss was submitted to the Court, the Court in the exercise of its discretion may grant the motion or deny it and require that the trial on the merits proceed for the proper determination of the case. However, one may ask, if the trial court refuses to grant the motion to dismiss filed by the fiscal upon the directive of the Secretary of Justice will there not be a vacuum in the prosecution? A state prosecutor to handle the case cannot possibly be designated by the Secretary of Justice who does not believe that there is a basis for prosecution nor can the fiscal be expected to handle the prosecution of the case thereby defying the superior order of the Secretary of Justice.

The answer is simple. The role of the fiscal or prosecutor as We all know is to see that justice is done and not necessarily to secure the conviction of the person accused before the Courts. Thus, in spite of his opinion to the contrary, it is the duty of the fiscal to proceed with the presentation of evidence of the prosecution to the Court to enable the Court to arrive at its own independent judgment as to whether the accused should be convicted or acquitted. The fiscal should not shirk from the responsibility of appearing for the People of the Philippines even under such circumstances much less should he abandon the prosecution of the case leaving it to the hands of a private prosecutor for then the entire proceedings will be null and void. 37 The least that the fiscal should do is to continue to appear for the prosecution although he may turn over the presentation of the evidence to the private prosecutor but still under his direction and control. 38
The rule therefore in this jurisdiction is that once a complaint or information is filed in Court any disposition of the case 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. The determination of the case is within its exclusive jurisdiction and competence. A motion to dismiss the case filed by the fiscal should be addressed to the Court who has the option to grant or deny the same. It does not matter if this is done before or after the arraignment of the accused or that the motion was filed after a reinvestigation or upon instructions of the Secretary of Justice who reviewed the records of the investigation. In order therefor to avoid such a situation whereby the opinion of the Secretary of Justice who reviewed the action of the fiscal may be disregarded by the trial court, the Secretary of Justice should, as far as practicable, refrain from entertaining a petition for review or appeal from the action of the fiscal, when the complaint or information has already been filed in Court. The matter should be left entirely for the determination of the Court. WHEREFORE, the petition is DISMISSED for lack of merit without pronouncement as to costs. SO ORDERED. Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla, Bidin, Sarmiento and Cortes, JJ., concur. Teehankee, C.J., took no part.

July 26, 1960 G.R. No. L-11241 VALENTIN ILO, ET AL., petitioner, vs. COURT OF APPEALS, ET AL., respondents. Perfecto A. Tabora for petitioners. Solicitor General Ambrosio Padilla and Asst. Solicitor General A. A. Torres for respondents. , J.: Valentin Ilo, et al were charge before the Court of First Instance of Camarines Sur with the crime of arson where, after trial, Valentin Ilo and Silvestre Buela were found guilty under Article 321, paragraph 5, of the Revised Penal Code and sentenced each to an indeterminate penalty of from 4 months and 1 day to 4 years 2 months and 1 day of prision correccional to indemnify jointly and severally the offended party in the sum of P600.00, and to pay their respective share of the costs. The rest of the accused were acquitted. Ilo and Buela appealed to the Court of Appeals. The latter court, while it found appellants guilty, held that the crime charged comes under Article 321, paragraph 1, of the Revised Penal Code and not under the same article, paragraph 5, and as a consequence, it modified the penalty imposed upon them. It accordingly sentenced each of appellants to suffer an indeterminate penalty of not les than 6 years and 1 day of prision mayor nor more than 16 year and 1 day of reclusion temporal affirming the decision of the trial court in all other respects. Appellants interposed the present petition for review. The facts as found by the Court of Appeals are: Zosimo Taghoy and his family lived in their house located in sitio Ligua, barrio Salvacion, Municipality of Tinambac, Camarines Sur. It appears that prior to December 4, 1950 Valentin Ilo had quarrelled with one Restituto Bona while they were in the aforesaid house of Zosimo. As a result thereof Restituto filed a criminal charge against Valentin in connection with which the latter had warned Zosimo not to testify in favor of his accuser. This notwithstanding, however, Zosimo testified before Sgt. Rivera when the latter investigated the incident. The prosecution evidence show that very early in the morning of December 4, 1950, Zosimo left for Tinambac to buy fish. Between 11 and 12, oclock that morning as Bruna Absin, a 60-year old woman who lived in the house aforesaid together with her granddaughter, Salud Piania and the latters three children, the eldest of whom was only three years old she heard the voices of some people coming towards the place. She went down to see who they were. The group was composed of eight persons headed by Valentin Ilo. Salud Piania also got up and looked through the window from where she saw them coming. All of them were well-known to both Bruna and Salud because they had been their neighbors in the same barrio for more than ten years. Upon their arrival Silvestre Buela poured petroleum from a bottle into the awning of the house, while Valentin Ilo applied a lighted match to the same place after the petroleum had been poured upon it. Their six companions had by then surrounded the place. When Bruna asked Valentin why they were burning the house, the latter replied sarcastically; What setting fire are you talking about? Then as the fire begun to spread , Salud Piania took hold of her youngest child and ran out of the house through the kitchen door while her grandmother took care of the other two children and hurriedly lead them out of the burning house through the same door and all of them sought refuge at the house of Saluds mother-in-law located at about one kilometer away. The house of the Taghoys was burned to the ground together with all its contents consisting of furniture, clothing, house utensils, farm implements, two sacks of corn, and six sacks of palay, with a total estimated value of more than P1,000.00. The house itself, in the opinion of the trial court, was worth P600.00.

As stated at the beginning, the evidence shows that Zosimo Taghoy had gone to the poblacion of Tinambac very early that same morning to buy fish. While he was there walking with Restituto Bona towards the municipal building, they met Valentin Ilo, Alfredo Caizo and Pacifico Carullo. Valentin threw a stone at them hitting Restituto with it on the forehead. Zosimo and Restituto, unwilling to get into further trouble took to their heels, pursued by Valentin and his two companions, but they succeeded in evading them by seeking refuge in the house of Maximo Piania, Zosimos father-in-law. Due to the incident above described and fearful that Valentin and his companion might do harm to the member of his family, Zosimo requested the chief of police of Tinambac, to have a policeman accompany his brother-in-law, Jaime Piania, to his house at sitio Ligua to fetch his wife and children. This the chief of police did, but when Jaime and municipal policeman named Gualberto Cantos reached Ligua they found Zosimos house reduced to ashes. Later on they went to the house of Zosimos mother where they found his wife and children. The trial court found appellant guilty of arson under Article 321, paragraph 5, of the Revised Penal Code because the information does not allege that the house burned was an inhabited one or that the accused knew it to be inhabited. And in expressing the opinion that the crime come under Article 321, paragraph 5, it surmised that, while the information does not stated in so many words that building burned was used as a dwelling, it however alleges that it was reduced to ashes together with all the furniture, utensils, clothing and palay deposited therein, from which it may be inferred that the house was inhabited when it was set on fire. The Court of Appeals, however, is of different opinion. It expressed the view that the defendants are guilty of the offense under paragraph 1 of the same article, which is penalized with reclusion temporalto reclusion perpetua, or from 12 years and 1 day to reclusion perpetua, because the information alleges that they set fire to the house of one Zosimo Taghoy, and the evidence shows that when they burned the house they saw two occupants therein in the persons of Bruna Absin and Salud Piania, from which, according to said court, it may be deduced that they knew that the house was then inhabited and such knowledge is an essential ingredient of this form of arson. Counsel for appellants, on the other hand, disagrees with both the trial court and the Court of Appeals, for he contends that the information does not contain any allegation that the building burned is used as a dwelling and is located in an uninhabited place to make it come under Article 321, Paragraph 5, of the Revised Penal Code, nor does it alleged that the accused set fire to the house knowing it to be occupied at the time by one or more persons, even if it does allege that the house was that of Zosimo Taghoy and it was burned together with the furniture, utensils, clothing and palay deposited therein. He contends that such avernment, as well as the proof adduced that the accused saw two occupants of the house at the time of the burning cannot convert the crime charged into a more serious one, or one under paragraph 1 of the same article. We find merit in this contention. In one case, where the defendant was accused of arson upon the allegation that he set fire to the dwelling house of one Rosa Dani which was inhabited by her, it was held that it was error to find him guilty under Article 321, paragraph 1, because there is no allegation that he knew that the house was inhabited. This Court said: Knowledge on the part of the accused that the building set fire to is occupied, is an essential element of the form of arson defines in Article 549 of the Penal Code, (now Article 321, paragraph 1) and the information must contain allegations to that effect that the accused had such knowledge at the time of the commission of the crime in order to sustain a conviction under the article (People vs. Macalma, 44 Phil. 170). On the other hand, it is trite to say that the guilty of appellant and their subsequent conviction cannot rest on a mere presumption, but upon clear proof, while a substantial defect in the information cannot be cured by evidence, for that would jeopardize their right to be informed of the true nature of the offense they are charged. We therefore agree with counsel that the offense of which appellants may be convicted is that defined and penalized in Article 322, paragraph 3, of the Revised Penal Code which governs cases of arson not included in Article 321 and imposes the penalty of prision correccional in its minimum and medium period if the damage caused is over P200.00 but does not exceed P1,000.00. Considering that the crime was committed with the aggravating circumstances of dwelling, not offset by any mitigating circumstance, that penalty should be imposed in the maximum period, or from 2 years 11 months and 11 days to 4 years and 2 month. And applying

the Indeterminate Sentence Law, appellants should be sentenced to suffer an indeterminate penalty of from 4 months and 1 day ofarresto mayor to 4 years and 2 months of prision correccional. Wherefore with the above modification, the decision appealed from is affirmed in all other respects, without pronouncement as to costs. Paras, C.J., Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J.B.L., Endencia, Barrera, and Gutierrez David, JJ., concur.

G.R. No. L-23693 April 27, 1982 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUDY REGALA and DELFIN FLORES, defendants, RUDY REGALA, defendant-appellant.

MAKASIAR, J.:
Defendants Rudy Regala and Delfin Flores were charged with the crime of murder with assault upon an agent of a person in authority in an information filed on June 27, 1964 by the provincial fiscal of Masbate with the Court of First Instance of Masbate which reads: That on or about the 13th day of June, 1964, at the Magallanes Gate in the poblacion of the Municipality of Masbate, Philippines, and within the jurisdiction of this Honorable Court, the abovenamed accused conspiring together and helping each other, with deliberate intent to kill, with evident premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack and stab with. a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty, thereby inflicting upon the latter serious stab wounds at the mid-epigastric region penetrating abdominal cavity and perforating cordial and cardiac regions which injury directly caused his instantaneous death. to which defendants pleaded not guilty. To establish its case against defendants, the prosecution initially presented five witnesses, namely, Erlinda Tidon, Juanito Evangelista, Modesto Taleon, Dr. Orlando delos Santos and Municipal Judge Jose M. Angustia. Erlinda Tidon and Juanito Evangelista both testified that they were at the scene of the crime and saw the accused Rudy Regala stab the victim, Sgt. Juan Desilos Jr. In other words, they claimed to be eyewitnesses to the crime. Erlinda Tidon who at the time she testified on August 7, 1964 was 22 years old, single, housekeeper and a resident of barrio Luy-a, municipality of Aroroy province of Masbate, declared that she knew the victim, Juan Desilos Jr., who was a sergeant of the Philippine Constabulary; that in the evening of June 12, 1964, she was at the Magallanes Gate, Masbate, Masbate, because she wanted to get inside to dance; that at the Magallanes Gate which was well lighted, she saw Sgt. Juan Desilos Jr. in uniform attending to the exit door; that while Sgt. Juan Desilos Jr. was guarding the Magallanes Gate and trying to clear the exit gate of people, accused Rudy Regala, with co-accused Delfin Flores who had his arm on the shoulder of the former (Rudy Regala), arrived; that thereafter, she tried her best to get inside the Magallanes Gate and Delfin Flores and Rudy Regala "were there at the Magallanes Gate in my front. I was at their back" ; that when accused Rudy Regala and Delfin Flores reached the exit gate where Sgt. Juan Desilos Jr. was stationed, Sgt. Juan Desilos Jr. pushed accused Rudy Regala and told him "not to get thru this entrance because this is for the exit" (p. 9, t.s.n., Vol. III, rec.); that the person pushed by Sgt. Desilos was accused Delfin Flores (id, at p. 10); that while Sgt. Juan Desilos Jr. was pushing accused Delfin Flores, accused Rudy Regala became angry, got his knife from his waist and stabbed Sgt. Juan Desilos Jr.; that Exhibit "A", which is a long knife with a white sharp blade, was the same knife used by accused Rudy Regala in stabbing Sgt. Juan Desilos Jr.; that accused Delfin Flores was at the back of accused Rudy Regala when the latter stabbed Sgt. Juan Desilos Jr.; that accused Delfin Flores was one-half meter, more or less, from Sgt. Juan Desilos but accused Rudy Regala was nearer to Sgt. Juan Desilos Jr.; that Sgt. Juan Desilos Jr. was hit in the abdomen and he fell down and then accused Rudy Regala and Delfin Flores ran away, with the latter following the former; that she was one-half meter, more or less, from Sgt. Juan Desilos Jr., accused Rudy Regala and Delfin Flores; that Sgt. Juan Desilos Jr. was stabbed on June 12, 1964 at twelve o'clock midnight, more or less, at the Magallanes Gate, municipality of Masbate, province of Masbate; that Exhibit "B" is the uniform of Sgt. Juan Desilos at the time he was stabbed by accused Rudy Regala; that she was investigated in connection with the stabbing incident by Sgt. Balase; and that she knew Sgt. Taleon who also investigated her in connection with the case (pp. 3-16, t.s.n., Vol. III, rec.).

On cross-examination, witness revealed that in Masbate, Masbate, she has been staying at the house of Sgt. Dominador Balase since Tuesday, August 5, 1964, because he wanted her to stay thereat; that she attended the town fiesta of Masbate, Masbate, on June 12, 1964 to dance and enjoy the evening; that her religion is Roman Catholic and as such she follows its precepts; that she was on that occasion with her sister Nenita Tidon who is also single; that she and her sister did not have any escorts; that she arrived at the Magallanes Gate on June 12, 1964 and she was not able to enter the plaza immediately because it was then too crowded as there were many people inside the plaza, at the gate, as well as outside the gate of Quezon Street; that she intended to get inside the plaza through the exit gate because the entrance gate was already closed; that she saw Sgt. Juan Desilos Jr. guarding the exit gate which was so marked as "EXIT" where people were then milling around; that the exit gate was lighted with three (3) electric bulbs placed thereat separately; that before this case was filed she knew accused Rudy Regala only by appearance and she came to know his name only after he was already accused of the crime in this case; that during the investigation, she did not know the name of accused Rudy Regala but knew his appearance; that she executed on June 15, 1964 an affidavit marked as Exhibit "l" for the defense, wherein she declared that she knew Rudy Regala only by face: that she told the PC investigator all the truth she knew about the case, but was not able to name the accused as that was the truth; that she came to know the name of Rudy Regala only when an information or a complaint was filed on June 15, 1961 against him by the PC authorities with the Justice of the Peace Court of Masbate, Masbate; that on the 12th, 13th and 14th of June, 1964, she did not yet know the name of the accused Rudy Regala: that she has known Sgt. Juan Desilos Jr. even before June 12, 1964 or since 1963; that she saw accused Rudy Regala on June 12, 1964 approach the exit of Magallanes Gate which Sgt. Juan Desilos Jr. was regulating the flow of traffic; that she saw at the instance Rudy Regala placing his hand on the shoulder of accused Delfin Flores, but she cannot remember which hand: that in the evening of June 12, 1964, she did not also know the name of accused Delfin Flores although she knew him by his appearance, because she had not seen accused Delfin Flores and accused Rudy Regala before; that she came to know his name only on June 15, 1964 when he was already accused of the crime in this case; that the name of Delfin Flores was told to her by PC Sgts. Balase and Taleon who investigated her; that Sgt. Balase and Sgt. Taleon showed her the appearance of accused Rudy Regala; that at the Magallanes Gate, one could not move very fast because of the heavy traffic; that even if she had wanted to run because of fright, she could not because of the heavy traffic; that the distance between the exit gate and Quezon road is about two (2) meters; that there is a concrete road embankment between the exit gate and Quezon road; that the space between the exit gate and Quezon road was full of people; that she did not see any policeman outside the Magallanes Gate; that at the time Sgt. Juan Desilos Jr. was stabbed by the accused Rudy Regala, she was facing Sgt. Desilos Jr. and the distance between them was 1/2 meter (demonstration made by witness in open court showed that she was oblique to, not directly facing, Sgt. Juan Desilos Jr. that in that position Rudy Regala appeared from the right side going towards Sgt. Juan Desilos Jr. (witness pointing to her right side which was directly in front of Sgt. Juan Desilos Jr. and approximately the same distance (see p. 49, t.s.n., Vol. III); that when accused Rudy Regala was in that position which was in line with her, they were pushed by Sgt. Juan Desilos Jr. who told them "Don't get inside this gate because this is for exit"; that it was accused Delfin Flores who was pushed by Sgt. Juan Desilos Jr., who was then at the side of Rudy Regala, but she does not know whether accused Delfin Flores was at the right side or at the left side of accused Rudy Regala; that accused Delfin Flores was next to accused Rudy Regala and they were in the same line with her; and it was in that position that Sgt. Juan Desilos Jr. pushed accused Delfin Flores; that both accused Delfin Flores and Rudy Regala were pushed by Sgt. Juan Desilos Jr. but it was accused Delfin Flores who was directly hit by Sgt. Juan Desilos Jr.; that because of the pushing, accused Rudy Regala got angry and still at the same distance, he drew his knife from the left side of his waist which was covered by his shirt and then stabbed with it Sgt. Juan Desilos Jr. in the stomach; that at the time accused Rudy Regala stabbed Sgt. Juan Desilos Jr., she was still at the same distance from him as before; that accused Rudy Regala was able to pull off the knife from the body of Sgt. Juan Desilos Jr., but she was not able to see whether blood immediately spurted from the wound because she had already left; that accused Rudy Regala was then wearing a close-necked buttonless blue shirt with short sleeves; that all that accused Delfin Flores did during the incident was to walk, together with accused Rudy Regala who placed his arm on accused Delfin Flores' shoulder, towards Sgt. Juan Desilos Jr. that no other act or acts were made by accused Delfin Flores; that when she saw the horrible incident she went towards the road, walking naturally and slowly because there were plenty of people; that there was no other unusual occurrence that took place within the immediate vicinity of the place where Sgt. Juan Desilos Jr. was stabbed; that she came to Masbate to testify of her own volition; and that she was served with a subpoena by a policeman of Aroroy Masbate, in connection with this case (pp. 17-57, t.s.n., Vol. III, rec.). Witness Juanito Evangelists, then 26 years old, married, driver by profession and a resident of Bagumbayan, Masbate, declared that in the evening of June 12, 1964, he went to the plaza at the Magallanes Gate and there met Sgt. Juan Desilos Jr. who was in PC uniform; that Sgt. Juan Desilos Jr. was stabbed in the abdomen by accused Rudy Regala with a sharp pointed knife; that Exhibit "A" is the knife used by accused Rudy Regala in stabbing Sgt. Juan Desilos Jr. at the exit of Magallanes Gate on the night of June 12, 1964; that Exhibit " B " is the uniform of Sgt.

Juan Desilos Jr. at the time he was stabbed; that he knows accused Delfin Flores who was then by the side of accused Rudy Regala when he stabbed Sgt. Juan Desilos Jr.; that before accused Rudy Regala stabbed Sgt. Juan Desilos Jr., he (Regala) first pushed aside accused Delfin Flores; that Sgt. Juan Desilos Jr. fell on the ground; that he was very near Sgt. Desilos when he was stabbed by accused Rudy Regala; that the place of the incident was well-lighted as there was a dance going on; that after Sgt. Juan Desilos Jr. fell, accused Rudy Regala and Delfin Flores ran outside; that he ran after them to know who they were but was not able to catch up with them because they ran fast; that he saw accused Rudy Regala throw away the knife (Exh. "A") on the road; that he did not pick up the knife; that he did not know the names of the accused but knew their appearances; that he had seen the face of accused Delfin Flores before the incident; that he now knows the name of accused Delfin Flores; and that he did not know the reason why Sgt. Juan Desilos Jr. was stabbed by accused Rudy Regala (pp. 70-82, t.s.n., Vol. III, rec.). Upon cross examination, witness Evangelista stated that it was at around seven o'clock in the evening of June 12, 1964 when he went to the Magallanes Plaza at Masbate, Masbate; that the stabbing incident took place at around 1 o'clock in the morning (obviously referring to June 13, 1964); that he was at the gate when the incident took place and there were many people; that Sgt. Juan Desilos was guarding the Magallanes Gate because people were rushing towards it. When asked whether he also then wanted to enter the gate, he answered that he was there inside, about a distance of one meter from the gate, and when asked once more, he affirmed his answer (pp. 82-87, t.s.n., Vol. III, rec.). Witness Dr. Orlando delos Santos, then 35 years old, married and a resident physician of Masbate Provincial Hospital at Masbate, Masbate, told the court that on or about midnight of June 12, 1964, he was on duty in the hospital when the dead body of Sgt. Juan Desilos Jr. of the Philippine Constabulary was brought in. According to him the probable cause of death was cardiac hemorrhage; and that the stab wound at the mid-epigastric region, penetrating the abdominal cavity and perforating the cardiac region was caused by a sharp blunt instrument and that the injury directly caused the death of Sgt. Juan Desilos Jr. He opined that the knife Exhibit "A" could have caused the wound on the body of Sgt. Juan Desilos Jr. and he Identified Exhibit "B" as the uniform of Sgt. Juan Desilos Jr. and Exhibit "B-1" as the cut on the front right side of said uniform. He further Identified Exhibit "C", the death certificate he issued, and Exhibit "C-1", his signature thereon (pp. 58-65, t.s.n., Vol. III, rec.). When cross-examined, witness admitted that it was his first time to see the knife Exhibit "A" and that he did not examine the same as it was not brought to the hospital for chemical examination. He opined that Exhibit "A" is stained with blood but he cannot distinguish whether it is human blood or animal blood (pp. 65-67, t.s.n., Vol. III, rec.). Questioned by the Court, he ventured the opinion that the stain in the uniform of Sgt. Juan Desilos Jr. could be the blood that came from the wound inflicted on him. He further declared that he probed the wound of Sgt. Juan Desilos Jr. with an instrument to find out the extent of the entrance and penetration of the wound and found that the wound was midway umbilicus, the point of entrance of the stab wound was one-half inch to the right, which is at the epigastric region; and that the wound was directed a little upward and in a lateral way, about 7 to 8 inches deep. He was certain that the cause of death was the stab wound which was caused by a sharp pointed instrument (pp. 6769, t.s.n., Vol. III, rec.). Technical Sergeant Modesto Taleon, assigned as investigator and platoon sergeant of the 60th PC Company, Masbate, Masbate, testified that he has been connected with the Philippine Constabulary since May 27, 1941; that he knew Sgt. Juan Desilos Jr. who was one of their platoon sergeants and who relieved him as security on June 12, 1964 at the Magallanes Gate, where there was then a coronation dance. Their designation as security in charge was in writing; marked as Exhibit "D", signed by their Commanding Officer, Capt. Eugenio. In said Exhibit "D", the name of Sgt. Juan Desilos Jr. appears, with seven enlisted men, whose time of duty started as therein specified at 1900 hours. On the night of June 12, 1964, he was at the Magallanes Gate and Sgt. Juan Desilos Jr., who was in uniform and with a sidearm, was also there as he was performing security duties at the coronation dance and maintaining peace and order thereat. When he (witness) was near the stage and while looking at the crooner he saw Chief Salvacion take the microphone from the singer and call for a doctor as the soldier assigned at the Magallanes Gate had been stabbed. When he heard the announcement, he immediately rushed to the scene of the crime and found that there were already many men in uniform at the scene, and Sgt. Juan Desilos Jr. was no longer there as he had already been brought to the Masbate Provincial Hospital. So he, together with his commanding officer, investigated the incident and they were able to recover the fatal weapon which was then dripping with blood; he Identified said weapon in open court, which was marked as Exhibit "A" and the blood stains thereon as Exhibit "A-1 ". He found the knife, Exhibit "A ", on the road facing the Magallanes Gate around five meters away from the

scene of the crime, wrapped it and presented it to the commanding officer for safekeeping. Then they proceeded to the Masbate Provincial Hospital where they saw Sgt. Juan Desilos Jr. in the operating room already dead; Sgt. Desilos uniform which was already removed, was stained with blood with a cut at the last button of the uniform (Exh. "B-1 ") which appeared to have been pierced by a blunt instrument and coincided with the wound of the deceased, Sgt. Juan Desilos Jr. The uniform, including the pants, Exhibit "B", was full of blood. He Identified the patch on the uniform as that of the P.C. (Exh. "B-2" and the chevron of a staff sergeant (pp. 87105, t.s.n., Vol. III, rec.). The cross-examination elicited from witness the fact that he studied criminal investigation and he specialized on the subject as he was sent in 1958 by the Government to Camp Crame to take up criminal investigation and he likewise trained in 1963 in a seminar held in Cebu. He applied what he had learned in his investigations at Masbate, including the investigation of this stabbing incident. He affirmed that he, together with two companions, recovered the fatal knife. Exhibit "A", on the road five meters away from the scene of the crime but outside of the area cordoned off by the PC and admitted that he did not actually measure the distance but merely calculated it; although he advanced the opinion that where an incident took place in a crowded place, a trained investigator gets the actual distance. According to him, the place of the incident was cordoned off or surrounded by soldiers who did not tamper with anything thereat. As other people and peace officers arrived ahead of him at the scene of the incident, he did not know the investigating officer who arrived first. When they found the knife, he just grabbed it and presented it to his commanding officer, because he already knew that it was the fatal knife as it was then dripping with blood and lying flat on the ground. But when he picked it up, it was no longer dripping with blood but it was wet with blood. The route where the blood came from and where the knife was found was marked with blood stains. He admitted that per investigation procedure, important evidence like Exhibit "A" should not be touched with the (bare) hands; but he explained and demonstrated that he handed Exhibit "A" with care, with his thumb in the inner blade, and his two fingers on the outer blade, near the foot of the wooden handle, without touching its blade. He revealed that after the said Exhibit "A" was presented to his commanding officer nothing more was done. Exhibit "A" was not sent to the PC laboratory to test its blood stains; neither was the same examined for fingerprints. In fact, the suspects were never fingerprinted. He just concluded that Exhibit "A" was the fatal weapon (pp. 106-118, t.s.n., Vol. III, rec.). Judge Jose M. Angustia then 63 years old, married, municipal judge of Masbate, Masbate, resident of Masbate, Masbate, declared that he knew Rodolfo Regala, alias Rudy Regala, as he was brought several times before his court as accused in cases involving peace and order. Lately, he convicted him of the crime of malicious mischief. He could not recall having convicted him of the crime of physical injuries; but he Identified Exhibit "E" as the original duplicate copy of a decision in criminal case No. 2794 of the Municipal Court of Masbate, convicting accused Rodolfo Regala of the crime of slight physical injuries and Exhibit "E-1" as his signature affixed thereon (pp. 123127, t.s.n. Vol. III, rec.). Immediately after aforesaid witness had testified, counsel for accused moved to strike out the testimony on the ground that the same is impertinent and immaterial but said motion was denied as without merit by the court (pp. 128-131, t.s.n., Vol. III, rec.). Thereafter, counsel for accused asked the court for the recall of prosecution witness Juanito Evangelista for further cross-examination on the ground that there were vital matters overlooked by said defense counsel who earlier, in obedience to the order of the court, had to enter trial without having first consulted the accused. The prosecuting fiscal objected on the ground that prosecution witness Juanito Evangelista who had earlier informed him of his fears of reprisal, was not in the courtroom. Defense counsel, in insisting on the recall of said witness, informed the court that it has come to his knowledge that "... the first suspect of the PC was Evangelists. His clothes were found with blood stains as well as his hands ..." Nevertheless, the court denied the motion to recall but advised defense counsel to establish that fact as a defense of the accused (pp. 131-135, t.s.n., Vol. III, rec.). After the evidence for the prosecution was admitted by the court, defense counsel moved, by way of demurrer, for the dismissal of the case on the grounds that the prosecution miserably failed to establish the guilt of accused Delfin Flores and second, that there was variance between the date of the commission of the crime as alleged in the information and that proved by the evidence (pp. 138-151, t.s.n., Vol. III, rec.). The prosecuting fiscal interposed his objection on the main ground that the alleged variance was not substantial as the events leading to the stabbing incident began in the late hour of June 12, 1964 culminating at around midnight or immediately thereafter. Hence, the information alleged the time of the crime as "... on or about the 13th of June, 1964 ..." (pp. 151-162, t.s.n., Vol. III, rec.).

Defense counsel prayed for time to file his memorandum in support of his motion to dismiss and he was granted by the court up to August 21, 1964 to file the same and the provincial fiscal was required to reply thereto up to August 29, 1964 (p. 166, t.s.n., Vol. III, rec.). On August 14, 1964, defense counsel filed his memorandum in support of his motion to dismiss and prayed for the dismissal of the case against both accused (pp. 34-44, Vol. II, rec.), and thereafter or on August 25, 1964, he filed a supplementary Page memorandum (pp. 45-54, Vol. II, rec.). On August 25, 1964, without waiting for the reply memorandum of the prosecuting fiscal, winch was filed only on September 7, 1964 (pp. 59-60, Vol. II, rec.), the trial court denied the motion to dismiss (pp. 55-58, Vol. II, rec.). Consequently, the case was set for the reception of the evidence of the defense. Eight witnesses were presented by the defense, including accused Rudy Regala and Delfin Flores. Three of these witnesses Alberto Abayon, Eladio Mendoza and Noemi Almirol claimed to have been at the scene of the crime and seen the stabbing of Sgt. Juan Desilos Jr.. Alberto Abayon, then 19 years old, single, and a student of Osmea College, Masbate, testified that on June 12, 1964, he was at the Magallanes Gate, arriving thereat at about 9:30 o'clock in the evening, together with Shirley Letada Rogelio Ora-a and Violets Sorsogon. They could not immediately enter the auditorium because of so many people crowding the place. They were able to enter at about 10:00 o'clock in the evening. He was not aware whether there were movie actresses inside. He stayed in the plaza for a long time and went home at around 12:30 in the morning (June 13, 1964), with Noemi Almirol. Upon reaching Magallanes Gate on his way home, he saw a person whom he did not know, stab Sgt. Juan Desilos Jr.. He was then behind Sgt. Desilos Jr. and around one meter away from him. He saw blood dripping from Sgt. Juan Desilos Jr.'s abdomen. His companion, Noemi Almirol who was then at his left side, fainted upon seeing the blood flowing from Sgt. Juan Desilos Jr.. Then he heard Sgt. Desilos say "Noy please accompany me but he does not know the person requested by Sgt. Desilos Jr.. Witness described the man who stabbed Sgt. Juan Desilos Jr. as tall, with long hair, quite black in complexion and wearing a short-sleeved polo shirt with red stripes (pp. 168-170, t.s.n., Vol. III, rec.). He saw Rudy Regala at around 12:20 in the morning (June 13, 1964) drinking beer with companions inside the canteen at the Magallanes Gate, a place beside the Liceo School. He does not know the companions of Rudy Regala. Said accused was at that time wearing a white polo shirt. Shortly thereafter, he (witness) left for home at which time Rudy Regala was standing inside the canteen (p. 171, t.s.n., Vol. III. rec.). After Noemi Almirol had recovered, he brought her home alone and as they passed by the gate, Sgt. Juan Desilos Jr. was no longer there (p. 172, t.s.n., Vol. III, rec.). Claiming that he is familiar with Magallanes Gate, witness affirmed that it is enclosed with concrete walls on its sides except at its back which is enclosed with wire. Its side facing Quezon street is walled with hollow blocks. According to him, if one were inside the Plaza Magallanes and looked towards Quezon street, he would not be able to see the persons outside who are facing the wall; and if one were outside at Quezon street and looked towards the plaza, he would not be able to see the people inside (pp. 171-172, t.s.n., Vol. III, rec.). On cross-examination, witness disclosed that he went to the plaza that evening of June 12, 1964 to dance; that before he entered Osmea College, he studied in Masbate High School but Rudy Regala was not one of his classmates there; that he did not report what he saw to and he was not interviewed by, the police, but the following morning, he was interviewed by a PC man whom he did not know and they had an exchange of opinions and he was asked by the PC man whether he knew the man who stabbed Sgt. Desilos and he answered that he did not. He affirmed and he was sure that he saw Rudy Regala drinking in the canteen inside the Magallanes Gate and that said canteen is far from the Magallanes Gate but he could not calculate the distance; and that Sgt. Desilos was stabbed right at the gate marked as EXIT of Magallanes Gate at which precise moment he was a meter behind Sgt. Desilos He saw Rudy Regala at about 12:20 in the morning and this was before the stabbing incident. He does not know whether the gate was closed at the time of the stabbing incident but knew for a fact that there were many persons milling around the gate marked EXIT. He did not see the fatal weapon used by the culprit (pp. 172-174, t.s.n., Vol. III, rec.). In re-direct, he affirmed that he was a meter behind Sgt. Desilos when the latter was stabbed and Noemi Almirol was beside him and there were many people outside (p. 174, t.s.n., Vol. III, rec.).

Questioned by the Court, he revealed that Noemi Almirol is a young girl; that he brought her alone to her home at 12:30 in the morning, that he does not know her age; that he had known her for a long time as they were once neighbors;, that the residence of Noemi Almirol is at Quezon Street, far from Magallanes Gate, somewhere near the Medinas, in front of the residence of Dr. Sta. Cruz; that he is 16 years old but does not know who is older between him and Noemi Almirol; that Noemi Almirol is a third year high school student at Masbate High School; that he is a high school graduate as of June 13, 1964; and that he did not use to go out with Noemi Almirol and he had not gone to her house (pp. 174-175, t.s.n., Vol. III, rec.). Noemi Almirol, then 18 years old, single, a resident of Masbate, Masbate and a student of Masbate High School, testified that on June 12, 1964, she was at the Plaza Magallanes Gate, arriving there at 10:00 o'clock in the evening, with Amparo de Paz, Luningning Bonan and Elena Esparaguerra They were able to enter the plaza immediately and stayed thereat up to 12:00 o'clock midnight. At about 12:00 o'clock midnight, she met Alberto Abayon and they went home together at around 2:00 o'clock the following morning of June 13, 1964; that at the gate of Plaza Magallanes, she observed something unusual which was the killing of a PC soldier, and she fainted when she saw blood flowing from the body of Sgt. Desilos who was about one meter from her. She has known accused Rudy Regala for a long time and before she fainted she did not see Rudy Regala at the place where the PC man was bleeding (pp. 186187, t.s.n., Vol. III, rec.). Cross-examined, she affirmed that in going home, she was with Alberto Abayon and it was then about 2:00 o'clock in the morning of June 13, 1964, although she is not sure of the time; and that she was behind the victim who was about a meter away from her. She did not know what happened after she fainted nor did she hear the announcement made by Police Chief Salvacion about the stabbing incident. She further declared that Rudy Regala was not her classmate at Masbate High School; nor did she ever see him there as she had just transferred to that school. She did not know that Rudy Regala was also studying in the Masbate High School (pp. 188-189, t.s.n., Vol. III, rec.). Upon redirect examination, she revealed that she had a time piece on that night of the incident but she did not check it before leaving for home (p. 189, t.s.n., Vol. III, rec.) Questioned by the Court, she insisted that she did not see Rudy Regala that evening. She stated however that she was not alone in going home with Alberto Abayon as there were many girls with them and that it was not true that Alberto Abayon brought her home alone (p. 189, t.s.n., Vol. III, rec.). Witness Eladio Mendoza, then 21 years old, single, third year high school student of Masbate College, Masbate, Masbate, told the Court that he resides at Domingo Street, Masbate, Masbate; that he knows the accused Rudy Regala; that on the evening of June 12, 1964, he was at the Plaza Magallanes gate which is in the poblacion of Masbate, Masbate; that he arrived there at 9:00 o'clock in the evening; that his companions that night were Rudy Regala, Rudy Espinas and Pedro Verga and they were not able to enter the gate immediately because it was crowded by many people but were able to enter at around 9:00 o'clock in the evening; that once inside he went around and then together with his companions, Rudy Regala, Pedro Verga and Rudy Espinas, went to the canteen which was managed by a priest, at the left side of the Magallanes Gate (as one enters the same) near the Liceo College; they drank beer in the said canteen and stayed there for a long time; that he did not dance, but Rudy Regala did at around 11:30 P.M. with the queen, Carol Bataga and this lasted for about 2 minutes, and at the next piece, with one of the princesses whose name he (witness) did not know and after this dance with the princess, Rudy Regala went back to the canteen and drank beer; that at about midnight, he (witness) was still at the canteen and at that time, more or less, something unusual happened, which was the stabbing of a PC man at the gate which he learned about through the announcement made by Chief Salvacion on the stage at around 12:30 in the morning of June 13, 1964; that at that time, accused Rudy Regala was at his side drinking beer; that he did not do anything after the said announcement; neither did accused Rudy Regala do anything; that accused was at that time wearing a short-sleeved white polo shirt; that he cannot remember how many bottles of beer he drank that evening but the whole gang finished one case of beer; that he knows Sgt. Desilos although he did not see him that night; that he went home at around 2:00 o'clock of the morning of June 13, 1964 at which time accused Rudy Regala was still seated inside the other canteen located at the right side of Magallanes Gate, belonging to Mayor Ben Magallanes (pp. 175-178, t.s.n., Vol. III, rec.). He testified during the cross-examination that he studied at Liceo de Masbate, not at the Masbate High School, before he transferred to Masbate College; that on June 12, 1964 when he went inside the gate, there were many

people; and that he went inside the auditorium together with Rudy Regala, Espinas, and Verga and they drank beer in the canteen owned by a priest (p. 179, t.s.n., Vol. III, rec.). Questioning by the Court extracted from him the fact that he is a very good friend of Rudy Regala as they have been friends since childhood; that they were 'not together too often as they are studying in different schools, Regala in Masbate High School while he, at Liceo; and that they go out together and drink once in a while (p. 179, t.s.n., Vol. III, rec.). Thereafter, defense counsel manifested in open court that the testimonies of the other defense witnesses, Pedro Verga and Rudy Espinas, will corroborate the testimony of defense witness Eladio Mendoza in all its material aspects or that they will testify as Eladio Mendoza did. Prosecuting Fiscal did not interpose any objection; hence, such fact was made of record. Witness Eddie Zaragoza, then 34 years old, married, a municipal policeman of Masbate, Masbate (since July 1, 1961) testified that in the evening of June 12, 1964, he was detailed as guard at the Magallanes Gate, at Quezon Street, near the church of Masbate, Masbate and he stayed there until the dance which started at around 8:00 o'clock in the evening, was over at past 1:00 o'clock of the following morning; that on that midnight of June 12, 1964, when he was the guard, nothing unusual happened, but the next night, June 13, 1964, at around 11 o'clock an incident happened near the Exit gate of the plaza around 75 meters from his post; that he went to the scene of the incident to investigate and saw Sgt. Desilos being carried by Sgt. Hilario to the jeep of the vice-governor, Moises Espinosa, to be brought to the hospital,; that while investigating the people around the scene of the incident, he heard Dick Avinas driver of the vice-governor, shouting "Here is a knife that was dropped"; that Dick Avinas was then inside when he shouted; that he (witness), together with chief of police Salvacion, went to the spot of the incident and saw a knife near the bumper of the jeep; that he got a piece of paper and with it held the knife's blade and delivered it to chief of police Salvacion, who told him that the blade should be held but not the handle; that thereafter, he continued with his investigation by gathering information from the people present but the result of his investigation was negative (pp. 5-12, t.s.n., Vol. IV rec.). On cross-examination, he declared that it was coronation night when the incident, happened but it was not before midnight of June 12, 1964; that there were two nights for coronation, June 12, 1964 for Baby Queen and June 13, 1964 for Lady Queen; that the incident took place during the coronation of the Lady Queen; that he could not remember whether the coronation of the baby queen was held prior to June 12, 1964, but it was the night previous to the coronation of the lady queen; that on June 12, 1964, he was on duty as guard at the Magallanes Gate from 8:00 o'clock in the evening up to after midnight (pp. 12-17, t.s.n., Vol. IV, rec.). Clarificatory questions were propounded by the prosecuting fiscal and the trial judge with respect to the actual date and time of the incident, thus: Butalid Q And on the night of June 12, 1964, past midnight , the incident occurred? WITNESS A No, sir. Q But it was after your duty on June 12, 1964 at about 8 o'clock that the incident occurred? BLANCA Misleading, your Honor. We object. COURT Q You were a guard on June 12, 1964 from 8 o'clock to past midnight ?

A Yes, your Honor. Q And when you said that on June 12, up to midnight there was no incident about Sgt. Desilos? A Yes, your Honor. Q After midnight of June 12, it is already June 13, 1964? A Yes, your Honor. Q After midnight of June 12, which is June 13, 1964, that was the time when Sgt. Desilos according to you, met an accident BLANCA If your Honor, please, with due respect to the question of the Honorable Court, we would like to make it of record our objection, on the ground that it is misleading. COURT Put it on record. WITNESS A No, your Honor Q In other words, from one minute after 12:00 o'clock of June 12, 1964 until 6:00 o'clock of that morning, which is June 12, Desilos was still alive? No incident happened to Sgt. Desilos A Nothing happened. Q According to you, Desilos was killed on June 14, 1964? BLANCA If your Honor, please, we shall again, with due respect to the question of the Honorable Court, we are constrained again to make our objection on the ground that it is misleading. The testimony of the witness said that the incident took place about past 11:00 o'clock in the evening of June 13, 1964. COURT Past 11:00 o'clock. Let the witness answer because he does not clarify. WITNESS A Not yet. COURT Q When was it? Tell us the definite date?

A More or less, at 11:00 o'clock in the evening of June 13, 1964 when the incident took place. Q So it was on June 13, 1964 at 11:00 o'clock? A More or less, your Honor. Q You are sure about that? A Yes, your Honor. xxx xxx xxx (pp. 14-16, t.s.n., Vol. IV, rec.). Defendants Rudy Regala and Delfin Flores testified in their defense and both claimed that they were not present at the spot of the commission of the crime and that they are strangers to each other. Rudy Regala declared that he is 21 years old, single, a student at Masbate High School at Masbate, Masbate; that he was at the Magallanes Gate, Masbate, Masbate in the evening of June 12, 1964, together with Rudy Espinas, Pedro Verga and Eladio Mendoza, and they were not able to immediately enter the gate; that as soon as they had entered the gate, they looked around the auditorium and afterwards at around 10:00 o'clock they proceeded to the canteen near the Liceo College; that the canteen is at the right side of, if one is facing, the grandstand; that they drank beer in the canteen which is owned by a priest; that at around 11: 30 in the evening, he danced with the queen, Carol Bataga for about 2 minutes and then with the princess whose name he does not know, which dance also lasted for about two minutes; that after his dance with the princess, he went back to the canteen; that thereafter, or at around 12:40 in the evening, and while still in the canteen, he heard Chief Salvacion announce that a PC man was stabbed; that after the announcement he did not do anything; that he went home around 2:30 to, 3:00 o'clock in the morning of June 13, 1964; and that except to dance, he did not leave the canteen (pp. 189-192, t.s.n., Vol. III, rec.). He further informed the, Court that he knew Sgt. Desilos but did not see him that night when he (deceased) entered the gate; neither did he see him in the morning or afternoon of that day; that he has no grudge against him nor any motive to kill him; that his family has no grudge against Sgt. Desilos and that his family, however, has a quarrel with the PC (p. 182, t.s.n., Vol. III, rec.). Moreover, he testified that he does not know prosecution witness Erlinda Tidon and it was only on the witness stand that he first saw her and he denied as true her declarations; that he knows prosecution witness Juanito Evangelista but denied as true his declarations; that he did not know his co-accused Delfin Flores either before or on that night of June 12, 1964; that he came to know him only at the PC headquarters on June 16, 1964 when they returned to the municipal building and it was only on June 14, 1964 that he saw for the first time Delfin Flores at the PC compound; that his attire at the Magallanes Gate that evening of June 12, 1964 was a short-sleeved shirt which appears yellow at daytime but blue during nighttime; that said shirt which he Identified in court (Exh. "2") is now in the possession of his lawyer (pp. 192-193, t.s.n., Vol. III, rec.). Testifying further, he told the court that he was arrested with Roger Ampuan by Sgt. Gotis at around 10:3'0 to 11:00 o'clock in the morning of June 13, 1964 at the market and they were brought to the PC compound where they stayed up to 5:00 o'clock in the afternoon; that St. Gotis investigated him that same day and pointed to him as the companion of Roger Ampuan in stabbing Sgt. Desilos but he told Sgt. Gotis that this was not true; that after 5:00 o'clock in the afternoon, he and Roger Ampuan were allowed by Capt. Eugenio to go home; that he was again arrested by Sgt. Gotis and his companion on June 14, 1964 at about 12:30 to 1:00 in the afternoon in the market area; that this time, he was arrested with Rudy Espinas and they were brought to the PC compound where they were immediately placed in separate rooms; that inside the room, he was maltreated by a person whom he knows only by appearance; that he was ordered to admit the crime because according to the investigators, Rudy Espinas had already told them that he (accused) was the one stabbed Sgt. Desilos Jr., but he told them that that was not true, that he was boxed, then kicked and made to squat; one pulled him by his buckle and he was made to look upward with the man's fingers pointed towards his (accused) nose; that it was a PC soldier named Formalejo and

two others, whose faces he could recognize, who did the maltreatment and that Peroy Merillo kicked him at the side of his body while inside the toilet; that he was given only ten minutes to rest and he was continuously maltreated that day of June 14, 1964, from 12:00 or 1:00 o'clock to 5:00 o'clock in the afternoon; that in the evening nothing was done to him at the PC compound where he slept although he was investigated by Sgt. Taleon who did not reduce into writing his investigation; that on June 15, 1964, nothing happened to him as he was not investigated that day; that he stayed in the PC compound from the 14th to the 6th of June, 1964; that there were seven persons investigated at the PC compound, namely, Rudy Espinas, Pedro Verga Eladio Mendoza, Miller Gaton, Roger Ampuan Delfin Flores and himself; that on June 16, 1964, he and Delfin Flores were brought to the municipal building; then they were taken on June 23, 1964 to the provincial jail and they passed by the PC barracks where he got his eyeglasses and hat; that he was at that time accompanied by Patrolman Natural; that in the PC barracks, he was called by Sgt. Balase and, leaving behind Pat. Natural, he approached Sgt. Balase who told him that now that he is being pointed to as the killer, it would be better for him to tell the truth as to who was the real author of the crime so that he (accused) would be utilized as witness, but he told Sgt. Balase that he was very innocent of and did not know anything about the crime; that before the body of Sgt. Desilos was brought to the cemetery it was shown to him by Sgt. Balase and the coffin was placed in front of him; and that on that occasion, PC Formalejo who was then with Sgt. Balase attempted to box him (accused) but Formalejo was cautioned by Sgt. Balase (pp. 194-197, t.s.n., Vol. III, rec.). Accused Rudy Regala further revealed that when he saw on June 3, 1964 witness Juanito Evangelista at the PC barracks, the latter asked him why he and Roger Ampuan were at the PC compound and he replied that they were taken by the PC because of the incident the night before and Evangelista told him "You were not present there that evening"; that their conversation took place in the presence of a PC officer whom he can recognize by appearance only; that he met Capt. Eugenio on June 13 to the 16th; that on June 14, Capt. Eugenio told him that there was another suspect who wore a blue shirt with stripes; that another PC officer asked him who was the owner of that blue shirt with stripes and he answered that he saw somebody wearing that; that during his maltreatment by the PC, a PC soldier who was posted as guard went inside the room and hit and kicked him; that he had not seen Exhibit "A", the knife used in the stabbing, before, as it was only in court that he first saw that knife; that he does not use that kind of knife; and that when he went to the Magallanes Gate that evening of June 12, 1964, he had no weapon or knife with him (pp. 197-198, t.s.n., Vol. III, rec.). In the course of his cross-examination, accused Rudy Regala was caught smiling by the trial judge who warned him of his act and behavior and not to take the trial lightly as the trial is not a joke, nor was there anything funny, and advised him to be serious as he is fighting for his life (p. 198, t.s.n., Vol. III, rec.). He confirmed that he studied for two years at Masbate High School, but denied breaking the crystal (glass) of the bulletin board of the school; that he was arrested on June 13, 1964 by Sgt. Gotis at the market place between 10:30 and 11:00 o'clock in the morning; that at the time of his arrest no knife was taken from him by Sgt. Gotis that he was maltreated but not investigated by Formalejo that he does not remember any incident he had with Formalejo that he does not remember and it was not true that a knife was confiscated from him by Laguerta when he (accused) was about to stab PC Formalejo that he stays at the market place; that it is not true that during vacation time, he worked as part time butcher in the market; that he knows Patrolman Perez; that he knows former policeman Cornal that he has a tattoo in his shoulder (which he showed to the court) and the tattoo consists of the words "Black Jack No. 3"; that Black Jack is not a gang but a club to put up recreational facilities in the market and the president of the club, of which he is a member, is Tony Aguilar; that Rudy Espinas is also a member but not Pedro Verga Floresta and Alberto Abayon; that every member of the club must have to be tattooed with Black Jack. According to him, his body was battered because of the maltreatment he suffered from the PC that he was confined in the provincial jail for the first time on June 23, 1964 at around 9:30 to 10:00 o'clock and that until now he is still confined there; that he was maltreated only on the 14th of June, 1964; that at the provincial jail, he was not able to ask somebody to examine his battered body because he was not even allowed to communicate with the persons he knows as he was isolated in the provincial jail; that in a room in the provincial jail, he was with one named Julian Bartido who was the same person who was convicted in the shooting of Moises Espinas and the wounding of Marcial Tamares; that he was not therefore examined by a physician; that the purpose of the PC in maltreating him is to force him to admit his guilt but he did not admit; that there were seven other persons investigated in the PC compound; that he, Delfin Flores, and the seven other persons were lined up in the PC compound and he was the one called by Sgt. Balase and that at the time he was called by Sgt. Balase he did not see Juanito Evangelista (pp. 198-204, t.s.n., Vol. III, rec.). Defense witness Romeo Floresta, who was then 16 years old, single, a first year high school student of the Masbate College and a resident of Masbate, Masbate, corroborated defendant's defense of denial and alibi and thus declared that on the evening of June 12, 1964, he went to the Magallanes Gate and returned home at 2:30 in the morning of the following day, June 13, 1964; that at around 12:00 midnight, he saw Rudy Regala drinking beer in the canteen

inside the plaza (Magallanes Gate); that from the time he met Rudy Regala at 10:00 up to the time he went home, he saw Rudy Regala drinking in the canteen; that the plaza was crowded that evening of June 12, 1964; and that he went home together with Rudy Regala (pp. 183-184, t.s.n. Vol. III, rec.). He revealed on cross-examination that he saw Rudy Regala that evening dance twice; that the canteen where he stayed the whole night was the one located at the left side, if entering the gate; that he never left that canteen from the time he entered the same up to the time he left for home; that Rudy Regala likewise did not leave the canteen except to dance after which he returned to the canteen; that from the time he entered the plaza at 8:00 o'clock of June 12, 1964 up to the time he and Rudy Regala went home together, he was always with Rudy Regala and that he saw Rudy Regala at the canteen situated at the left side of Magallanes Gate (pp. 184-185, t.s.n., Vol. III, rec.). Defendant Rudy Regala's father, Cleto Regala, then 52 years old, married, a merchant and residing since 1947 at the market site, Masbate, Masbate, testified that as a merchant he sells vegetables and sari-sari; that he does not sell coffee; that in the evening of June 12, 1964, he was at the pingpong game site and he was selling coffee because it was the town fiesta; that he knows that his son Rudy Regala went to the dance at the Magallanes Gate that evening; that at around 3:00 o'clock of the following morning of June 13, 1964, his son Rudy Regala arrived at the pingpong site where he was selling coffee; that his son did not talk to him, neither did he talk to his son; that his son drank coffee and thereafter he slept on the bench; that he had not seen Exhibit "A" (knife), as among those in his household; that his son had not used that kind of weapon; that at around 10:30 to 11:00 o'clock in the morning of June 13, 1964, PC Sgt. Gotis picked up his son at his residence and brought him to a car; that in the evening of June 14, 1964, Sgt. Gotis arrived at his (witness) residence and asked for the blue banlon shirt of Rudy Regala as according to him (Sgt. Gotis Rudy Regala needed it as he was feeling cold; that he gave Sgt. Gotis a newly ironed shirt but Sgt. Gotis told him that that was not the one because he (Sgt. Gotis was looking for a blue banlon shirt with stripes; that the shirt of Rudy Regala when he came home from the plaza was one which appeared to be yellow during daytime but white during nighttime; that Exhibit "2" is the shirt he was referring to as worn by Rudy Regala that morning; that this was the very shirt he showed Sgt. Gotis but Sgt. Gotis told him that that was not the one; and that Rudy Regala does not have a blue shirt with red stripes (pp. 180-183, t.s.n., Vol. III, rec.). The other accused Delfin Flores who was then 24 years old, single, a farmer and a resident of Cawayan Interior, Masbate, Masbate, testified in his defense that in the evening of June 12, 1964, he arrived at around 9:00 o'clock without any companion at the dance at Plaza Magallanes and he was able to enter immediately; that he stayed there up to 1:00 o'clock of the following morning, June 13, 1964; that at 1:00 o'clock nothing happened to him; that before 1:00 o'clock in the morning of June 13, 1964, while he was dancing, Chief of Police Salvacion announced on the stage that a PC man had been stabbed; that after that announcement, he was boxed by one Bacalano from the Island by reason of which he fell and when he stood up he drew his double-bladed knife but policeman David Natural approached and told him to surrender the knife, which he did, and then he was arrested and taken to the municipal building of Masbate, Masbate, where he was lodged in jail until the next (whole) morning; that on or before June 12, 1964, he did not yet know his co-defendant Rudy Regala; that he came to know Rudy Regala for the first time in the PC camp on June 16, 1964 when they were brought to the municipal building of Masbate, Masbate; that on June 13, 1964 at 2:00 o'clock in the afternoon he was taken by a PC man whom he did not know, from the municipal building to the PC camp; that at the PC compound, he was investigated by persons whom he does not know; that in the investigation he was told to admit the crime because according to them Rudy Regala had already admitted and pointed to him (accused) as one of Rudy Regala's companions but he told them that he could not admit because Rudy Regala was not his companion; that because of his denial, he was boxed by them in the abdomen and he fell down with his buttocks on the ground; then he was boxed again on the left side of his buttocks by reason of which he rolled on the ground; that he does not know the names of those who boxed him; that the maltreatment was done inside the room without the presence of PC officers, as only the PC man who boxed him was present; that there were two PC men who boxed him but he does not know their names; that he stayed up to 4:00 o'clock in the afternoon of June 13, 1964 in the PC compound; that on that day, June 13, 1964, there were six other suspects who were investigated but he does not know their names; that he was returned to the municipal jail on June 13, 1964 and on June 14, 1964, at around 8:00 o'clock in the morning, 2 PC soldiers, whose names he does not know, took him from the municipal jail and brought him back to the PC compound and, again, he was told by a PC captain who investigated him, to admit the crime because according to them, Rudy Regala had already admitted and pointed to him as his companion when he (Rudy Regala) stabbed Sgt. Desilos but he told them that he could not admit as Rudy Regala was not his companion; that while he was being investigated by the PC captain, another PC soldier got hold of his abdomen and boxed him; that he does not know this PC soldier but he can recognize his face, Chat the investigation results were not reduced into writing; that he did not sign anything nor was he ever subjected to fingerprinting; that he was brought to the PC compound four times in all; that every time he was brought to the PC compound he was being told to admit the crime as Rudy Regala had already admitted and

pointed to him as his companion who stabbed Sgt. Desilos but in all such occasions, he answered them that he could not admit because Rudy Regala was not his companion; that the second time that he was brought back to the PC compound, there were six other suspects in the compound who were investigated but he does not know them; Chat he was mixed with the other six suspects and lined up inside the PC compound; that when they were lined up, the PC did not do anything but only left them there lined up; that they were fined up only once. He further testified that he does not know either Sgt. Juan Desilos Jr. or Erlinda Tidon that the declarations of Erlinda Tidon in the witness stand regarding his participation in the stabbing of Sgt. Juan Desilos Jr. are not true; that it was only while Erlinda Tidon was on the witness stand that he first saw her; that he did not see Erlinda Tidon at the Plaza Magallanes in the evening of June 12, 1964; that neither does he know witness Juanito Evangelists; that the declarations of Juanito Evangelista with respect to his participation in the stabbing of Sgt. Desilos are not true; that he saw Juanito Evangelista for the first time only when the case was being tried by the court; and that he did not see witness Juanito Evangelista in the evening of June 12, 1964 at Plaza Magallanes (pp. 17-36, t.s.n., Vol. IV, rec.). Cross-examined, he revealed that his educational attainment is Grade VI. Over the objection of his counsel the Court allowed a question propounded to him about his previous criminal conviction and he declared that he was convicted of the crime of murder in Masbate, Masbate by Judge Benedicto; that the victim in that crime of murder was Ricardo Cuyos that by reason of his conviction he served sentence in Muntinglupa and thereafter he was paroled; that on the night of June 12, 1964 at 9:00 o'clock in the evening, he went to the dance at Magallanes Gate; that at that time, there were so many people trying to get in that there was no PC soldier at the gate but there were many people around the vicinity going to the entrance; that he went inside the auditorium and saw the coronation of the queen; that he was not at Magallanes Gate the night previous to June 12, 1964 as it was only that evening of June 12, 1964 that he went there; that he was dancing when Chief Salvacion made the announcement; that he does not know the name of the person with whom he was dancing; that the music being played previous to the announcement was sweet; that when Chief Salvacion made the announcement, the music stopped and so everybody stopped dancing; that he was at a distance of 15 meters from the gate when the dance was stopped; that he was no longer dancing with his unknown partner when Chief Salvacion announced the stabbing of the PC soldier; that he does not know witnesses Erlinda Tidon and Juanito Evangelista and does not know of any grievance or trouble with them; that he knows Balacano who boxed him several times after the announcement made by Chief Salvacion; that he was arrested only after Chief Salvacion had finished his announcement; that before his arrest, he was no longer dancing; that he was not dancing when Balacano boxed him; that David Natural, a policeman, of Masbate, Masbate arrested him that night inside the Magallanes Gate 15 meters from the gate; that after his arrest, he was brought to the municipal building of Masbate, Masbate; that policeman Natural was with PC soldiers who escorted him to the municipal building where they arrived at past 1:00 o'clock; and he stayed there until that time that the PC soldiers got him from the municipal jail at around 8:00 o'clock in the morning of June 13, 1964; and that from 1:00 o'clock to 8:00 o'clock of June 13, 1964, he was detained in the municipal jail of Masbate, Masbate. Cross-examined by the Court, accused Delfin Flores affirmed that the only time he attended the dance at the Magallanes Gate was on the evening of June 12, 1964; that he entered the gate at about 8:00 o'clock in the evening that he did not have a watch at that time; that per his calculation, Chief Salvacion made the announcement on the stage at about 11:00 o'clock in the evening of June 12, 1964; that because he had no watch it was possible that the time when Chief Salvacion made the announcement was midnight of June 12, 1964 or one minute thereafter, which was already June 13, 1964; that he was no longer dancing at the time Chief Salvacion made the announcement as he was then conversing with a lady at a place around 15 meters from the Magallanes Gate; that on that night he had in his possession a double-bladed knife which he brought with him to the dance hall because he was alone when he left his house; that he hid the knife in his body so that nobody could see it; that at the time he was dancing with his unknown partner, the knife was in his body; that he knew that he was a suspect not because he had a conversation with the PC but because he was placed in a line-up; that when he was being placed in the line-up, he did not know that he was being scrutinized by certain individuals from somewhere, but there were people in the PC barracks; that he did not know whether these Miss Ridon and Mr. Evangelists were looking at him while he was placed in the lineup; that he was placed in the line-up only once; that he did not come to know that on that evening after the line-up there were persons who have Identified him and Rudy Regala as the persons seen at the Magallanes Gate near the exit gate; neither did he come to know that after the line-up that evening, Miss Tidon and Mr. Evangelista had pinpointed him and Rudy Regala as the persons they saw in front of Sgt. Desilos immediately before he fell down wounded by a knife; that the PC soldiers maltreated him; that he was not made to sign anything; neither was he forced by the PC to sign anything; that Rudy Regala was not also forced to sign anything nor obliged to declare anything; that he did not know that Sgt. Desilos was a PC soldier; that at the time he was arrested that evening he already knew that a PC soldier had been stabbed but did not know yet that it was Sgt. Desilos that he only came to know the victim as Sgt. Desilos in the morning of June 13, 1964; that he was charged with concealment of a deadly

weapon by the police force of Masbate; and that he pleaded guilty to the charge and was consequently sentenced to two months' imprisonment which he had served out already (pp. 45-60, t.s.n., Vol. IV, rec.). On re-direct he revealed that in the criminal case of People versus Delfin Flores for the murder of Cuyos, he pleaded guilty to the crime charged, and affirmed that in the case of illegal possession of deadly weapon, he also pleaded guilty (pp. 60-61, t.s.n., Vol. IV, rec.). By way of rebuttal evidence, prosecution presented witnesses Felixberto Laguerta and Gerardo Gotis. Felixberto Laguerta who was then 43 years old, married, and a policeman of Masbate, Masbate, testified that the testimony of Rudy Regala that the Black Jack organization is a club and not a gang, is not true because it is called the Black Jack gang; that he knows that it is a gang and not a club because the members have tattoos on their shoulders; that it is also not true that Pedro Verga Eladio Mendoza, Rudy Espinas, Romeo Floresta and Alberto Abayon are not members of the Black Jack gang; that all of them were arrested for being members of the said gang; that it is also not true as testified by Rudy Regala that he was not arrested by him at the cockpit when he (Rudy) was about to stab PC Formalejo for the truth was that on December 22, 1963 he arrested him and confiscated from him a knife; that Exhibit "F" is the same knife he confiscated from Rudy Regala, but no case was filed against Rudy Regala in connection therewith because Formalejo refused to file a complaint against Regala (pp, 6367, t.s.n., Vol. IV, rec.). Cross-examined, he testified that he has been a policeman for 19 years; that he was told by Fiscal Butalid to testify in this case that he did not execute any affidavit in connection with his arrest of Rudy Regala and confiscation from him of a knife, Exhibit "F"; that he reported the matter to the chief of police of Masbate, Masbate, Chief Salvacion; that he does not know whether the arrest and confiscation were recorded in the police blotter as it was the police sergeant who was in charge of recording the same; that the basis of his testimony that Rudy Espinas, Pedro Verga Romeo Floresta are members of the Black Jack gang is the tattoo on their shoulders which is in the form of cards and that all of them were arrested by reason of the fact that they are all members of said gang; that membership in the Black Jack gang is a crime; that because they are members of a gang, he suspected them of doing something bad; and that they were arrested because they were doing something wrong in the poblacion (pp. 68-72, t.s.n., Vol. IV, rec.). Cross-examined by the trial judge, witness confirmed that Rudy Regala is a relative of a very high ranking municipal official of the town of Masbate, Masbate, as the mother of Rudy Regala is the cousin of the town mayor-Mayor Magallanes. However, he does not know whether it was by reason of this relationship that Rudy Regala's father and mother are living inside the market site of Masbate, Masbate. He further revealed that he delivered the knife "Exhibit "F" to Chief Salvacion but no action was taken by Chief Salvacion against Rudy Regala in connection therewith (pp. 72- 73, t.s.n., Vol. IV, rec.). The other rebuttal witness, Gerardo Gotis, then 47 years old, married, and sergeant of the PC at Masbate, Masbate, testified that Rudy Regala's assertion on the witness stand that he was maltreated at the PC barracks was a he as Rudy Regala was never maltreated; that when he arrested Rudy Regala on June 13, 1964 at the market place, he was able to confiscate from Mm a knife (identified as Exh. "G") [pp. 74-76, t.s.n., Vol. IV, rec.]. Cross-examined by defense counsel, he affirmed that he got the knife, Exhibit "G" from Rudy Regala last June 13, 1964; that he did not file any case against Rudy Regala in connection with Exhibit "G" as he merely indorsed the same to the 1st PC sergeant and because his commanding officer, Capt. Eugenio ordered him not to file any case as there was already a case against Rudy Regala. However, he retracted his testimony that the non-filing of the case was the order of Capt. Eugenio. The reason for the non-filing was because it was merely overlooked as they were then busy investigating suspects in this murder case (pp. 76-78, t.s.n., Vol. IV, rec.). The trial Judge gave more weight and credence to the testimonies of the witnesses of the People than that of the accused, resulting thus, as aforestated, in the conviction of accused Rudy Regala for the complex crime of murder with assault upon an agent of a person in authority, and the imposition on him of the supreme penalty of death. However, with respect to the other accused, Delfin Flores, the trial Judge found him guilty only as an accessory after the fact. Consequently, the trial Judge imposed upon accused Delfin Flores the penalty of eight months and 21 days as minimum, to six years and 1 day of prision mayor as maximum with the recommendation that his parole be immediately cancelled.

Before Us therefore by way of review is only the death penalty imposed on accused Rudy Regala; because Delfin Flores did not interpose any appeal from his conviction as an accessory after the fact, and was accordingly released on June 11, 1973 after the expiration of his sentence as certified by the Director of the NBP (p. 198, Vol. I, rec.). Counsel de officio contends that the trial court erred in failing to give the two accused a fair trial; in holding Rudy Regala responsible for the killing of Juan Desilos Jr.; in convicting Rudy Regala, assuming arguendo that he was the man who stabbed the victim, of the crime of murder with assault upon an agent of a person of authority; and in holding Delfin Flores, under the alleged facts of the case, liable as accessory after the fact of the crime of murder with assault against an agent of a person in authority. I Counsel de officio claims in support of the first assigned error that the indignation and revulsion of the trial Judge at the commission of the monstrous crime herein involved as can be gleaned from the decision under review, thus: Murder as a crime is indeed heinous. But when the crime had to be committed in a public place, where people were enjoying the spirit of the fiesta, and amidst the sound of the drums and the trumpets and the tantalizing sweetness of the dance music, the deviltry of the perpetrator is compounded. The perversity of the perpetrator is even made more ugly and ugliest indeed because the victim was in the uniform of an agent of the law and was performing his duty as he saw fit. He was there foregoing the pleasure of the evening so that others may enjoy. He was there as a symbol of authority so that peace may be maintained for those many who love peace and tranquility. He was there, distant from his home, his wife and his children who would want him near them during those happy and festive moments in answer to the call of duty, only to be treacherously killed by an assassin with the blackest soul. He died almost in the spot where duty demanded of him. He died so that others may enjoy and live. His was a fruitful life with a duty well done and his was a heroic death. He died in the altar of public service and his was a death of a hero. The Court would be recreant of its duty if it should fail to notice this splendid performance of a lowly but loyal public servant (p. 44, Vol. I, rec.). directly caused undue prejudice against the accused because of his previous criminal record as manifested by the following portions of the decision of the trial Judge Who is Rudy Regala? He is a convict, although in the crime of slight physical injuries. According to Municipal Judge Jose Angustia. of Masbate, he has been brought very often to his Court for several mischiefs he has committed. And who is Delfin Flores? He is a convicted murderer and a parolee. Birds of the same feather, flock together (p. 32, Vol. I, rec.). Is there a possibility that Rudy Regala could perpetrate the crime in company of Delfin Flores, a parolee, moments before midnight and/or moments after midnight? The distance of the canteen from the exit gate is not considerable. Rudy Regala could have been at the canteen early that evening and could have gone out with Delfin Flores and then returned at the exit door, committed the crime and then returned to the canteen to prepare for his alibi? This may be conjectural, but the possibility would not be farfetched. To a man with criminal mind and criminal tendencies, anything could be possible (p. 25, Vol. I, rec.). ... So that after the incident, he could have disappeared among the crowd and he and Rudy Regala could have returned inside in order to establish an alibi. It should be remembered that Delfin Flores and Rudy Regala are convicts and are dangerously mischievous. Although it may be argued that criminals would not at times return to the scene of their adventures, nevertheless, there are those who, to prepare an alibi, would do so, accustomed as they have been in committing acts of deviltry Is this possible and/or probable? While witnesses of the defense, because of their ages, their being acquaintances close and tight, have every reason to help their friend Rudy Regala in his terrible predicament, Rudy Regala, a member of an organization with tatoos on their right arm, could have certain moral ascendancy over Abayon, Mendoza and Florista and even with Noemi Almirol, that in the spirit of friendship they are coming to the rescue of criminal friend Rudy Regala (pp. 25-26, Vol. I, rec.).

The defense of the accused is alibi. Rudy Regala claimed that he was inside the canteen, which was a few members from the exit door of the Magallanes auditorium on the night Sgt. Desilos was stabbed. Rudy Regala is a convict and a notorious young man and the Court will take the same into account (p. 29, Vol. I, rec.). In essence, therefore, counsel de officio's first assigned error boils down to the delicate question of whether appellant Rudy Regala was denied due process of law. It must be emphasized that the jurisprudence under the 1935 Constitution treated the right of an accused to impartial trial as an aspect of the guarantee of due process. Under the present Constitution, that right to impartial trial is now expressly declared as one of the cardinal rights of an accused. Thus its Section 19, Article IV (Bill of Rights), provides that "(I)n all criminal prosecutions, the accused ... shall enjoy the right ... to have a speedy, impartial and public trial ..." (emphasis supplied). WE have declared that "... It is a fundamental right enshrined in the Constitution that no one is to be deprived of his liberty without due process of law. Moreover, there is a specific reference to its indispensability in a criminal prosecution. Thus is emphasized its importance for an accused. He can rely on the guarantee of fairness according to the fundamental law, which moreover provides additional safeguards at the stage of trial. Our Constitution does indeed go far in throwing the mantle of its protection on the one who is caught in the meshes of criminal law. The proceeding must neither be arbitrary nor unjust. It is to underscore the importance of a trial judge being detached and objective, free from bias either for or against the prosecution or for the person indicted. As was so aptly put by Justice Dizon: 'It has been said, in fact, that due process of law requires a hearing before an impartial and disinterested tribunal and that every litigant is entitled to nothing less than the cold neutrality of an impartial judge ...' Earlier in People vs. Castaeda, Justice Laurel made clear the necessity for a 'trial before an impartial judge.' If it were otherwise, the pledge of due process becomes a myth. The trial is reduced to nothing but a useless formality, and Idle ceremony. If a judge had made up his mind to convict, even innocence would not suffice as a defense" (People vs. Angcap, 43 SCRA 437, 441-442 [1972]). The thrust of appellant's posture is that the trial Judge, considering "his fully justified indignation and revulsion at the commission of such a monstrous crime" of murder, became prejudiced against appellant (as well as his codefendant) after his previous criminal conviction was brought forth during the trial, to the extent that the trial Judge no longer gave due consideration to the evidence of the defense (pp. 73-78, Vol. I, rec.). On the other hand, the Solicitor General submits that the above argument of counsel de oficio does not properly fit the assigned error, because it assails the decision of the trial court and its appreciation of the evidence submitted therein rather than the conduct of the trial itself (pp. 607, Appellant's Brief, p. 184, Vol. I, rec.). An impartial trial necessarily requires an impartial judge to conduct the same. In other words, absent an impartial judge, there can be no fair and impartial trial. Appellant impugns the impartiality of the trial judge, who was allegedly prejudiced against the appellant. WE do not agree with counsel de officio that the trial court failed to accord appellant Rudy Regala a fair trial. Appellant has not pointed, and We have found none, to any part or stage of the trial betraying the trial Judge's hostility, bias and prejudice against the appellant after the prosecution had brought forth the fact of appellant's previous criminal conviction. As a matter of fact, appellant's previous conviction of the crimes of malicious mischief and slight physical injuries was testified to only by the witness last presented by the prosecution in its evidence in chief. And the trial Judge, contrary to the claim of the appellant, gave due consideration to his evidence as shown by the fact that in the decision of conviction, the trial Judge examined extensively the testimonies of all the eight witnesses for the defense. Consequently, while the quoted portions of the judgment of conviction are interspersed with statements and phrases which properly should not have been made as they may be wrongly interpreted as indicative of bias and prejudice, such aforestated statements and phrases in the judgment of conviction do not per se constitute evidence of bias and impartiality in the conduct of the trial by the trial Judge as to violate appellant's right to an impartial trial. WE view the trial Judge's aforequoted statements and phrases as merely an expression, in the very words of appellant's counsel de officio herself, of the Judge's " ... fully justified indignation and revulsion at the commission of such a monstrous crime ..." II 1. The trial court correctly rejected appellant Regala's defense of alibi and denial. Indeed such defenses cannot prevail over the affirmative testimonies of Erlinda Tidon and Juanito Evangelista who positively Identified appellant Rudy Regala as the one who inflicted the single but fatal wound on the deceased Sgt. Juan Desilos Jr. (People vs.

Cabiling 74 SCRA 285 [1976]; People vs. Roxas, 73 SCRA 583, 591 [1976]. And the exit gate where the stabbing took place was just in the vicinity of about 15 meters from the canteen where appellant was allegedly drinking beer during the night of June 12 until the early morning of the 13th. Alibi, to be convincing must preclude any possibility that the accused could have been physically present at the place of the crime nor its immediate vicinity at the time of its commission (People vs. Roxas, supra). While the crime took place at midnight or a little past thereafter, such circumstance does not vitiate witnesses' Identification of appellant Rudy Regala as the person who stabbed to death Sgt. Juan Desilos Jr.; because the place at that time was well lighted by reason of the affair being celebrated (pp. 16, 78, Vol. III, rec.). Furthermore, the two witnesses were close to the exact spot of the incident as witness Tidon was barely one-half meter from the victim (p. 14, Vol. III, rec.), while witness Evangelista was about a meter from the exit gate where the victim was stabbed (p. 84, Vol. III, rec.). Hence, the possibility of erroneous Identification is remote. Despite the fact that both witnesses before the stabbing incident did not know appellant by name, they both declared that they knew him by face or appearance (pp. 31, 81, Vol. III, rec.). Furthermore, appellant has not shown by evidence of any evil motive on the part of prosecution witnesses Tidon and Evangelista to testify in the manner they did. The absence of any such improper motive enhances the credibility of said witnesses (People vs. Roxas, supra). 2. It is a recognized principle that on the matter of credibility of witnesses, the observation of the trial court must be accorded respect and great weight in view of its special opportunity to observe closely the demeanor of the individual witnesses. As a matter of fact, the trial court gave its observations on the witnesses' conduct and candor on the witness stand, thus: Because of the seriousness of the offense not only because of the challenge that the perpetrator has poised upon the community the people and all citizenry because of the brazen manner of its commission, which was made before several people and in the midst of the festive mood of the occasion but because of the grave penalty which the crime carries, the Court took special interest in the two witnesses for the prosecution. It was carefully observed by the Court that both witnesses were curt on their declaration they were straightforward in their reply and their voice carry the ring of sincerity and truth. Their manner of replying on (sic) the question of the prosecution were those (sic) of serene honest and truthful individuals, who wanted to impart clearly what they saw. Their answer to the cross examination were (sic) given with a clear and convincing manner . They were men who sat on the witness stand merely to convey what they have seen and noticed then, without hesitation. The Court cannot help but be convinced of the trustworthiness of their revelation. Under the searching barrage of cross-examination, they were never ruffled but they withstood the fire with simple dignity, speaking with a voice full of candor and truth. That is the impression these two witnesses have created in the mind of the Court. The clearness and simplicity of their assertion and their direct and positive Identification of the accused Rodolfo Regala alias Rudy Regala and Delfin Flores have convinced this Court (emphasis supplied). Because the trial Judge had spoken on a matter, which he indisputedly is in a much better position to appreciate, this Court can do no less than to place its imprimature thereon. Indeed, it has been aptly observed that ... the judge who tries a case in the court below has vastly superior advantages for the ascertainment of truth and the decision of falsehood over an appellate court sitting as a court of review. The appellate court can merely follow with the eye the cold words of the witness transcribed upon the record, knowing at the same time, from actual experience, that more or less of what the witness actually did say is always lost in the process of transcribing. But the main difficulty does not lie here. There is an inherent impossibility of determining with any degree of accuracy what credit is justly due to a witness from merely reading the words spoken by him, even if there were no doubt as to the Identity of the words. However artful a corrupt witness may be, there is generally, under the pressure of a skillfull cross-examination, something in his manner or bearing on the stand that betrays him, and thereby destroys the force of his testimony. Many of the real tests of truth by which the artful witness is exposed in the very nature of things cannot be transcribed upon the record, and hence they can never be considered by the appellate court. For this reason the rule is firmly established that where there is an irreconcilable conflict in the testimony, the appellate court will not

reverse the judgment of the trial court, where the evidence of the successful party, when considered by itself, is clearly sufficient to sustain the verdict (several cases cited) or unless some conclusion established from the fact is inconsistent with the court findings or there is some inherent weakness in the evidence upon which the conclusion is based, or unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted, as where the trial court in the valuation of testimony misinterpreted a supposed inherent weakness thereof not arising from the behaviour of the witness on the stand ... (People vs. Alto, 26 SCRA 342, 365 [1968]). 3. Consequently, the inconsistencies and incredibilities in the testimonies of the material witnesses of the prosecution as pointed out by the appellant are better left to the appreciation of the trial court, which has not found the same sufficient to destroy the probity of said witnesses. Appellant contends that prosecution witness Erlinda Tidon's testimony to the effect that appellant Rudy Regala and accused Delfin Flores ran away after appellant Rudy Regala had stabbed Sgt. Juan Desilos Jr., is improbable considering that, according to Tidon herself, the scene of the crime was crowded or overflowing with people and consequently one cannot move fast or run (pp. 15, 16, 43, Vol. III, rec.). Such inconsistency or improbability is more apparent than real. It may be true that under normal condition, that is, absent any unusual incident such as the killing of a peace officer, such assertion may be characterized as improbable. This is not so, however, in the instant case; because the commotion created by the stabbing incident enabled the culprits to easily disappear among the milling throng. Again, the testimony of Erlinda Tidon to the effect that no other unusual incident occurred after the stabbing incident may not be characterized as false; because witness Tidon may have treated the stabbing incident and the consequent commotion engendered by the same as one continuing incident, instead of treating them as two separate incidents. Hence, she answered that aside from the stabbing incident no other unusual incident took place. Moreover, We have noted in People vs. Resayaga (54 SCRA 350 [1973]) that it is a common phenomenon to find inconsistencies, even improbabilities, in the testimony of a witness, especially on minor details or collateral matters. That the accounts of witnesses regarding the same occurrence are contradictory on certain details is not unusual. There is no perfect or omniscient witness because there is no person with perfect faculties or senses or a perfect control of his emotions. An adroit cross- examiner may trap a witness into making statements contradicting his testimony on direct examination. By intensive cross- examination on points not anticipated by the witness and his lawyer, a witness may be misled or trapped into making Statements that do not dovetail with the testimonies of other witnesses on the same points. Yet, if it appears that the witness has not wilfully perverted the truth, as may be gleaned from the tenor of his testimony and as appreciated by the trial Judge from his demeanor and behaviour on the witness stand, his credibility on material points may be accepted. III The killing of Sgt. Juan Desilor Jr., according to the trial court, was qualified as murder by the circumstances of treachery and evident premeditation and hence, appellant was convicted of the complex crime of murder with assault upon an agent of a person in authority. Neither treachery nor evident premeditation can be properly appreciated and considered in tills instance case so as to characterize the killing as murder. So appellant contends and the Solicitor General agrees. WE find the aforesaid common stand correct as the evidence supports the same. Treachery is never presumed; it must be proven as conclusively as the act itself. It must be shown that the accused employed "... means, methods, or forms in the execution thereof which tend directly and specially to insure its execution without risks to himself arising from the defense which the offended party might make. " By prosecution's own evidence, appellant was enraged because the deceased (Sgt. Juan Desilos Jr.) pushed his companion Delfin Flores and admonished him not to get in through the exit gate, then pulled out his knife and stabbed the victim in the abdomen. Treachery cannot therefore be appreciated as the attack made by appellant Rudy Regala was merely an immediate retaliation for the pushing made by the deceased, which act placed him on his guard. Moreover, deceased Juan Desilos Jr. at the time had a sidearm (p. 97, Vol. III, rec.) and was free to defend himself with it. If appellant's design was to be safe from a possible defense that the victim might make, he

could have disarmed the victim first before stabbing him. This he did not do. Certainly, these circumstances negate treachery. With respect to the qualifying circumstance of evident premeditation, it is well-settled that the essence of premeditation is that the execution of the criminal act must be preceded by cool thought and reflection upon the resolution to carry out the criminal intent during the space of time sufficient to arrive at a calm judgment. Consequently, it must be clearly established by evidence the time when the offender determined to commit the crime, and a sufficient interval of time between the determination and the execution of the crime to allow him to reflect upon the consequences of his act. Neither the record nor the appealed decision intimates the existence of the foregoing circumstances which are essential for a positive finding of evident premeditation. On the contrary, the circumstances of the case rule out premeditation. The principle enunciated in the Manalinde (14 Phil. 77 [1909]), Butag (38 Phil. 746 [1918]), Binayon (35 Phil. 23 [1916]) and Zalzos (40 Phil. 96 [1919]) to the effect that premeditation may exist even if there was no predetermined victim, does not apply in the instance case In all these cases it was sufficiently established that the accused deliberately planned to kill although without a definite person as intended victim. In the present case, there is no evidence pointing to the fact that appellant planned to kill any person who ma cross his path. His act of bringing with him a knife in going to the plaza is not an indication that he did plan to kill anybody. Consequently, the killing of Sgt. Juan Desilos Jr. by appellant cannot be qualified as murder. It was simple homicide. But the appellant cannot be convicted of the complex crime of homicide with assault upon an agent of a person in authority because the information filed against appellant did not allege the essential elements of assault that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. (People of the Philippines vs. Rodil, L-35156; Nov. 20, 1981; People vs. CFI of Quezon, Branch V, 68 SCRA 305, Nov. 28, 1975). The information in this case barely alleged that the accused "... with deliberate intent to kill, with evident premeditation and treachery and taking advantage of nighttime, did then and there wilfully, unlawfully and feloniously attack and stab with a knife (cuchillo) one Sgt. Juan Desilos Jr., a member of the Philippine Constabulary while he was then in the performance of his official duty thereby inflicting upon the latter serious stab wounds at the mid-epigastric region penetrating abdominal cavity and perforating cardial and cardiac region which injury directly caused his instantaneous death," which is similar to the information in the aforesaid Rodilcase "appellant 'attack and stab PC Lt. Guillermo Masana while the latter was in the performance of his official duties, ..." in which We ruled that "[S]uch an allegation cannot be an adequate substitute for the essential averment to justify a conviction of the complex crime, which necessarily requires the imposition of the maximum period of the penalty prescribed for the graver offense ... " Furthermore, as in the Rodil case, the subject information cannot be cured or validated by the doctrine enunciated in People vs. Balbar (21 SCRA 1119, Nov. 29, 1967), because unlike in the latter case, there are no allegations of facts from which it can be implied that the accused then knew that, before or at the time of the assault, the victim was an agent of a person in authority. Moreover, the fact that the crime of assault was established by the evidence of the prosecution without any objection on the part of the accused cannot likewise cure the aforestated defect in the information so as to validly convict the accused thereof; because to do so would be convicting the accused of a crime not properly alleged in the body of the information in violation of his constitutional right to be informed of the nature and cause of the accusation against him. As already stated, the crime of assault was definitely demonstrated by the evidence of the People because it showed that the victim (Sgt. Juan Desilos Jr.) while maintaining peace and order at the exit gate of the Plaza Magallanes where the crime took place, was in complete PC uniform at the time the accused attacked him by reason of the latter's act of pushing the accused and his co-accused so as to prevent them from entering the plaza through its exit gate. In the aforesaid Rodil case, it was stated that "[L]ike a qualifying circumstance, such knowledge must be expressly and specifically averred in the information; otherwise, in the absence of such allegation, the required knowledge, like a qualifying circumstance, although proven, would only be appreciated as aggravating circumstance. Applying this principle, the attack on the victim, who was known to the appellant as a peace officer, could be considered only as aggravated by being 'in contempt or with insult to the public authorities' (par. 2, Art. XIV, Revised Penal Code) or as an insult or in disregard of the respect due the offended party on account of his rank ..." (par. 3, Art. XIV, Revised Penal Code).

Appellant can therefore be convicted only of the crime of homicide, aggravated by the circumstance of "in contempt or with insult to the public authorities" (par. 2, Art. XIV, Revised Penal Code), or as an "insult or in disregard of the respect due to the offended party on account of his rank ..." (par. 3, Revised Penal Code). WE stated in the Rodil case, thus: The term "rank" should be given its plain, ordinary meaning, and as suck refers to a high social position or standing as a grade in the armed forces (Webster's Third New International Dictionary of the English Language Unabridged, p. 1881); or to a graded official standing or social position or station (75 CJS 458); xxx xxx xxx or to a grade or official standing, relative position in civil or social life, or in any scale of comparison, status, grade, including its grade, status or scale of comparison within a position (Vol. 36, Words and Phrases, Permanent Edition, p. 100). xxx xxx xxx As explained by Mr. Justice Mariano Albert, then of the Court of Appeals, those "generally considered of high station in life, on account of their rank (as well as age or sex), deserve to be respected. Therefore, whenever there is a difference in social condition between the offender and the offended party, this aggravating circumstance sometimes is present" (Albert M.A. The Revised Penal Code Annotated, 1946 Ed., p. 109). xxx xxx xxx The aggravating circumstance of contempt of, or insult to, public authority under paragraph 2 of Article 14 of the Revised Penal Code can likewise be appreciated in the case at bar. xxx xxx xxx While it is true that in the case of U.S. vs. Rodriguez, et al. (19 Phil. 150, 157-158), People vs. Siojo(61 Phil. 307, 317), and People vs. Verzo (21 SCRA 1403), this Court ruled that the term public authority refers to a person in authority and that a PC lieutenant or town chief of police is not a public authority but merely an agent of a person in authority; there is need of re-examining such a ruling since it is not justified by the employment of the term public authority in aforesaid paragraph 2 of Article 14 instead of the term person in authority which is specifically used in Articles 148 and 152 of the Revised Penal Code. There is no extended reasoning of the doctrine enunciated in the aforesaid three (3) cases why the phrase public authority should comprehend only persons in authority. The lawmaker could have easily utilized the term "persons in authority" in the aforesaid paragraph 2 of Article 14 in much the same way that it employed the said phrase in Articles 148 and 152. The lawmaker must have intended a different meaning for the term public authority, which may however include, but not limited to, persons in authority. Under the decided cases, a municipal mayor barrio captain, barrio lieutenant or barangay captain is a person in authority or a public authority. Even a public school teacher is now considered a person in authority under CA 578 amending Article 152 of the Revised Penal Code (Sarcepudes vs. People, 90 Phil. 228). So is the town municipal health officer (People vs. Quebral, et al., 73 Phil. 640), as well as a nurse, a municipal councilor or an agent of the Bureau of Internal Revenue (People vs. Yosoya, CA-G.R. No. 8522-R, May 26, 1955; People vs. Reyes, et al., O.G.S. 11 p. 24). The chief of police should therefore be considered a public authority or a person in authority; for he is vested with jurisdiction or authority to maintain peace and order and is specifically duty bound to prosecute and to apprehend violators of the laws and municipal ordinances, more than the aforementioned officials who cannot prosecute and who are not even enjoined to arrest malefactors although specifically mentioned as persons in authority by the decided cases and by Article 152 of

the Revised Penal Code as amended by R.A. 1978 of June 22, 1957, The town chief of police heads and supervises the entire police force in the municipality as well as exercises his authority over the entire territory of the municipality, which is patently greater than and includes the school premises or the town clinic or barrio, to which small area the authority or jurisdiction of the teacher, nurse, or barrio lieutenant, respectively, is limited. Likewise, the guilt of appellant is aggravated by recidivism as he was previously sentenced by final judgment for slight physical injuries. WHEREFORE, APPELLANT RODOLFO REGALA ALIAS RUDY REGALA IS HEREBY FOUND GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF HOMICIDE AGGRAVATED BY RECIDIVISM AND BY CONTEMPT FOR OR INSULT TO A PUBLIC AUTHORITY OR DISREGARD OF THE RESPECT DUE THE OFFENDED PARTY ON ACCOUNT OF HIS RANK, WITHOUT ANY MITIGATING CIRCUMSTANCE, AND HE IS HEREBY SENTENCED TO SUFFER AN INDETERMINATE TERM OF IMPRISONMENT RANGING FROM TWELVE (12) YEARS OF PRISON MAYOR AS MINIMUM TO TWENTY (20) YEARS OF RECLUSION TEMPORAL AS MAXIMUM: THUS MODIFIED, THE JUDGMENT APPEALED FROM HIS HEREBY AFFIRMED IN ALL OTHER RESPECTS. Fernando, C.J., Barredo, Fernandez, Guerrero, De Castro, Melencio-Herrera, Ericta, Plana and Escolin, JJ., concur. Teehankee, J., took no part. Aquino, J., concur in the result. Concepcion, Jr., and Abad Santos, JJ., are on leave.

EN BANC G.R. No. L-20721 April 30, 1966 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellant, vs. MARTIN ALAGAO, et al.,Defendants-Appellees. Office of the Solicitor General Arturo A. Alafriz, Assistant Solicitor General Antonio A. Torres and Solicitor R. Pronove, Jr. for plaintiff-appellant. De Santos and Delfino for defendants-appellees. ZALDIVAR, J.: This is an appeal by the City Fiscal of Manila from an order of the Court of First Instance of Manila sustaining the motion to quash the information in its Criminal Case No. 66655.
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On October 20, 1962 the City Fiscal of Manila filed an information against the defendantsappellees charging them of having committed the complex crime of incriminatory machinations through unlawful arrest, as follows: That on or about the 28th day of February, 1961, in the City of Manila, Philippines, the said accused, being then members of the Manila Police Department, conspiring and confederating together and helping one another, did then and there willfully, unlawfully and feloniously incriminate or impute to one Marcial Apolonio y Santos the commission of the crime of bribery through unlawful arrest, in the following manner, to wit: the said accused, on the aforesaid date, without reasonable ground therefor and for the purpose of delivering said Marcial Apolonio y Santos to the proper authorities, did then and there willfully, unlawfully and feloniously arrest said Marcial Apolonio y Santos; that after the said Marcial Apolonio y Santos had been arrested in the manner aforestated, and while the latter was supposedly being investigated by the said accused, the said accused did then and there place or commingle a marked P1.00 bill together with the money taken from said Marcial Apolonio y Santos, supposedly given to the latter by one Emerita Calupas de Aresa, so that he (Marcial Apolonio y Santos), then an employee of the Local Civil Registrar's Office of Manila, would appear to have agreed to perform an act not constituting a crime, in connection with the performance of his (Marcial Apolonio y Santos') duties, which was to expedite the issuance of a birth certificate, thereby directly incriminating or imputing to said Marcial Apolonio y Santos the commission of the crime bribery. On October 25, 1962 the defendants, through counsel, moved to quash the information against them on the grounds that (1) the facts charged in the information do not constitute an offense; and (2) the court trying the case has no jurisdiction over the offense charged. Later on, the defendants filed a supplemental motion to quash, alleging that the information charges more than one offense.
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The contention of the defense in the motion to quash is that "... the information would seem to indicate that the accused are charged with a complex crime, that is, the accused without reasonable ground arrested Marcial Apolonio y Santos for the purpose of incriminating him by planting on his person a marked P1.00 bill. We have searched the penal laws in vain for a crime such as set out in the information at bar." Then the motion to quash further states: "... there would either be only the singular crimes of incriminatory machinations or unlawful arrest, or perhaps two crimes, incriminatory machinations and unlawful arrest. If such would be the case then this Honorable Court would not have any jurisdiction over any crime or crimes charged. For certainly, incriminatory machinations and unlawful arrest would come within the jurisdiction of the inferior court.
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The City Fiscal opposed the motion to quash, contending that "A perusal of the information will readily conclude that it is a complex crime in the sense that unlawful arrest was used as a means for incriminatory machination." The City Fiscal further contended that the motion to quash raises a question of fact which should be raised during the trial and not during the stage of the proceedings when the allegations in the information should be controlling. The City Fiscal also contended that the crime of unlawful arrest, being punishable by arresto mayor and a fine of not exceeding P500.00, the same falls within the jurisdiction of the Court of First Instance.
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On November 9, 1962, the Court of First Instance of Manila issued an order sustaining the motion to quash, the pertinent portion of which order reads as follows: A careful perusal of the information quoted above shows clearly that it is defective. Assuming the truth of the allegations of the information, the Court is of the opinion that there is no complex crime involved. The alleged unlawful arrest committed by the defendants cannot be said to have been used as a necessary means to commit the crime of incriminatory machination. The latter crime could be committed without the unlawful arrest. The acts constituting the two offenses - unlawful arrest and incriminatory machination - are two separate and independent acts that preclude the concept of a complex crime. The alleged planting of evidence took place while the victim was already under investigation, long after the consummation of the alleged unlawful arrest.
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It is true that under an information charging a complex crime the Court may convict the defendant of two component crimes, if the evidence of record does not establish the complexity of the crime. This cannot be done, however, in the case at bar for the simple reason that one of the component offenses of the alleged complex crime, that is, incriminatory machination, - does not fall within the concurrent, much less original exclusive jurisdiction of the Court of First Instance.
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Consequently, the motion to quash is granted and the case is hereby dismissed, without prejudice for the prosecution to file the proper informations against the defendants in the proper court.; The City Fiscal of Manila, on November 28, 1962, filed a motion for reconsideration of the foregoing order, but on December 19, 1962 the Court of First Instance of Manila denied

the motion for reconsideration. Hence this appeal of the City Fiscal of Manila to this Court.
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In the present appeal, the main question to be resolved is whether the information filed in the court below alleges the complex crime of "incriminatory machinations through unlawful arrest." It is the view of the court a quo that the information alleges the commission of two distinct crimes, one, for unlawful arrest, and, the other, for incriminatory machinations. The lower court discarded the theory of the prosecution that the offense of unlawful arrest was a necessary means to commit the crime of incriminatory machinations, because of the allegation in the information that the accused had first unlawfully arrested the offended party Marcial Apolonio y Santos and after the arrest he was investigated and it was during the investigation that the accused had commingled the marked P1.00 bill among the paper bills that were taken from the possession of the said offended party. The trial court is of the opinion that "the alleged planting of evidence took place while the victim was already under investigation, long after the consummation of the alleged unlawful arrest."1
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We cannot sustain the view of the trial court. It is the general rule that in resolving the motion to quash a criminal complaint or information the facts alleged in the complaint or information should be taken as they are. The exceptions to this general rule are those cases where the Rules of Court expressly permit the investigation of facts alleged in the motion to quash.2 The grounds, or facts, relied upon in the motion, to quash in the present case, are not included in the exceptions we have adverted to. We find that the information in the present case specifically alleges that the accused did "willfully, unlawfully and feloniously incriminate and impute to one Marcial Apolonio y Santos the commission of the crime of bribery through unlawful arrest ... ."3 The information further alleges that "... the said accused ... without reasonable ground therefor and for the purpose of delivering said Marcial Apolonio y Santos to the proper authorities did there and there willfully, unlawfully and feloniously arrest said Marcial Apolonio y Santos; that after the said Marcial Apolonio y Santos had been arrested in the manner aforestated, and while the latter was supposedly being investigated by the said accused, the said accused did then and there placed or commingled a marked P1.00 bill together with the money taken from the said Marcial Apolonio y Santos ...". It is very apparent that by the use of the phrase "through unlawful arrest" in the information an idea is conveyed that the unlawful arrest was resorted to as a necessary means to plant evidence in the person of the offended party, thereby incriminating him. From a reading of the information we find a close connection between the act of the accused in first unlawfully arresting the offended party and then investigating him; and it was during that investigation that they planted incriminatory evidence against him. We agree with the Solicitor General in his contention that the accused first had to resort to unlawful arrest in order to be able to plant the P1.00 bill among the money taken from the offended party. We find merit in the following argument, as stated in the brief of the Solicitor General: Under the circumstances of the case, the accused had to arrest Marcial because it was the only way that they could with facility detain him and, more importantly, search his person or effects and, in the process, commingle therewith the marked peso bill. It should be observed that without detaining, investigating and searching Marcial it would have

been impossible, if not difficult, for the accused to plant the marked one peso bill, because then they could not have simply held Marcial and placed the marked one peso bill in his pocket, without the latter vigoriously protesting the act. Besides, if the accused simply held Marcial and planted in his pockets the marked one peso bill without arresting him, they could not have possibly accomplished their purpose, because Marcial would have surely and easily discovered what they were up to. Indeed, the accused had to arrest Marcial, even in the absence of a valid reason, so that under the semblance of a police investigation, they could get whatever money was inside his pockets and include in it the marked one peso bill. In short, the accused had to arrest Marcial so that he could be detained and pretending to investigate him, search his person and thereby have the opportunity of planting the marked one peso bill among his belongings. In declaring that the information did not allege a complex crime the trial court expressed the view that the alleged planting of evidence took place while the victim was already under investigation, "long after the consummation of the alleged unlawful arrest." This observation of the trial court does not find support in the allegations contained in the information in question. The statement in the information that the offended party was investigated "after" the unlawful arrest does not necessarily convey the idea that the investigation took place "long after" the arrest had been effected. It should be a matter of evidence first, before any conclusion is arrived at: that the investigation, during which the incriminating evidence was planted, had taken place immediately after the arrest or long after the arrest. The allegation in the information that the accused committed the complex crime of incriminatory machinations thru unlawful arrest, and also the allegation that the act of planting the incriminatory evidence took place during the supposed investigation after the unlawful arrest, are basis for the logical assumption, in the absence of evidence, that the two acts imputed to the accused - that of unlawfully arresting and that of planting incriminatory evidence - had closely followed each other, and that the former was a necessary means to commit the latter.
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For a criminal complaint or information to charge the commission of a complex crime, the allegations contained therein do not necessarily have to charge a complex crime as defined by law. It is sufficient that the information contains allegations which show that one offense was a necessary means to commit the other.4 On this particular point this Court has ruled, as follows: In order to determine whether two offenses constitute a complex crime, we should not find out whether, in accordance with their definition by law, one of them is an essential element of the other, such as physical injuries which cause the death of the victim, or stealing of personal property without the consent of the owner through force or violence, for in such cases there would be only one single offense of homicide in the first and robbery in the second case. But we should take into consideration the facts alleged in a complaint or information and determine whether one of the two separate and different offenses charged therein was committed as a necessary means to commit the other offense; if it were, the two offenses constitute one complex crime; otherwise the complaint or information charges two crimes or offenses independent from one another. (Parulan vs. Rodas and Reyes, 78 Phil. 855, 856)

We, therefore, held that the information in question in the present case contains allegations properly charging the commission of the complex crime of incriminatory machinations thru unlawful arrest, and the court a quo committed error when it ordered its dismissal.
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We likewise hold that the court a quo has jurisdiction to try the accused of the offense charged in the information. The crime of unlawful arrest is punishable with arresto mayoror imprisonment of from one month and one day to six months, and a fine not exceeding P500.00; 5 and the crime of incriminatory machinations is punishable with arresto mayor, or imprisonment of from one month and one day to six months. 6 Under Article 48 of the Revised Penal Code, in complex crimes, the penalty for the most serious offense shall be imposed, the same to be applied in its maximum period. And so, in the present case, in the event of conviction, the penalty for the crime of unlawful arrest should be imposed in its maximum period.7
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In view of the foregoing, the order appealed from is reversed and set aside, and this case is remanded to the court of origin for further proceedings. No costs. So ordered. Bengzon, C.J., Bautista Angelo, Concepcion, Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Bengzon, J.P., and Sanchez, JJ., concur.