consti2cases sec 12, 13, 14.docx

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G.R. No. 97936 May 29, 1995PEOPLE OF THE PHILIPPINES, plaintif-appellee,

vs.

ALEJANDRO LUCERO y CORTEL, accused-appellant.

PUNO, J.:

I the Constitution has any value, it is because it stands up or those who cannot stand up orthemselves. Thus, it protected those under custodial investigation with the all-important right tocounsel. We hold that the right to counsel cannot be diluted without tampering the scales o justice. ordenial o his right to counsel, we ac!uit accused-appellant.

"lejandro #ucero, $ienvenido %chave&, $albino %chave&, 'eter (oe, )ichard (oe and *ohn (oe werecharged with the crime o robbery with homicide. The In ormation against them reads+

That on or about the th day o ay, /00, in 1ue&on City, 'hilippines, and within the jurisdiction o this2onorable Court, the above-named accused, conspiring together, con ederating with and mutuallyhelping one another , did then and there, wil ully, unlaw ully and eloniously rob one (). (% %T)I3 4."()I(, in the manner as ollows+ on the date and in the place a orementioned, the said accused, one

armed with handgun, pursuant to their conspiracy bloc5ed the way o the said complainant who was onboard a ercede& $en& crusing along )oad 6 near 7the8 corner 7o 8 indanao "venue, 'ag-asa, thisCity, and did then and there, by means o violence and intimidation against persons, ta5e, rob and carryaway his cash money amounting to '9,9::.::; one gold nec5lace with cross pendant, 5arat, worth'6<,:::.::; one 7 8 gold )ole= watch worth ' <<,:::.::; one 7 8 > 5arat gold ring worth '0:,:::.::;one ? 5arat gold ring, domino style, worth '? ,:::.::; one 7 8 solid gold bracelet worth >9>,9::.::,'hilippine Currency, belonging to said (). (% %T)I3 4. "()I(, to the damage and prejudice o thesaid ofended party in the total amount a orementioned; that on the occasion o the robbery andpursuant to their conspiracy, the above-named accused, with intent to 5ill, and ta5ing advantage the7ir8superior strength, with the use o handgun, shot #3)%@43 $%)@"#%A y "#%)I", a driver o the saidofended party, thus inBicting upon him serious and mortal wounds which resulted to theinsta7n8taneous death o the said #3)%@43 $%)@"#%A y "#%)I", to the damage and prejudice o theheirs o said #3)%@43 $%)@"#%4 y "#%)I" in such amount as may be awarded to them under theprovisions o the Civil Code.

Contrary to law. 1

3nly the accused %chave& brothers and "lejandro #ucero were apprehended. The others remained atlarge.

Trial proceeded only as against the three.

The evidence on record shows that on ay 9, /00, private complainant (). (% %T)I3 4. "()I(spent the night at his boarding house, located at >< Ilocos @orte Atreet, $ago-$antay, 1ue&on City. 2ewanted to return that night to his residence at 'roject 9, 1ue&on City. 2owever, his driver, #oren&o$ernales, advised him not to leave that night or $ernales overheard that the group o $albino and$ienvenido %chave& would rob him on his way home. 2e heeded the advice.

It was around +:: a.m., the ne=t day, that (r. adrid again as5ed his driver to bring him to his mainresidence in 'roject 9, 1ue&on City. While traversing )oad 6, a gray-reddish car overtoo5 the ercedes$en& he was riding and bloc5ed their way. Three 7>8 men swi tly alighted rom the car bloc5ing themand barged into his $en&. The Drst grabbed the driverEs seat and pushed his driver to the other side o the seat. The second occupied the right side o his driver. The third sat beside (r. adrid at the bac5sent and punched him. Aimultaneously, the man at the right side o his driver pulled out his gun andannounced a hold-up. 2



The man beside (r. adrid divested him o the ollowing+ a gold )ole= watch, studded with diamonds,worth ' <<,:::.::, a three 7>8 carat diamond ring worth '0:,:::.::, another two 7?8 carat domino-style ring, surrounded with diamonds worth '? ,:::.::, a nec5lace worth '? ,:::.::, a bracelet worth'<:,:::.::, and his wallet containing '9,9::.::. 3

" ter driving them around the area or a couple o hours, the male actors stopped his car and alighted. The worst came. The man at the right side o his driver shot the latter at the chest be ore Beeing. (r.

adrid and his driver were rushed by concerned citi&ens to the Feterans emorial 2ospital. Two hourslater, his driver died o hemorrhage as a result o the gunshot wound he sustained. (r. adrid survived.5 2e reported the incident to the 1ue&on City police. When no action was ta5en on his case, he Dled hiscomplaint with the Apecial 3perations Group o the Central Intelligence Aervice 7CIA8. 6

Two months later, the CIA eforts paid-of. 3n *uly ?>, /00, the Apecial 3perations Group headed byCapt. )aul $oac, a ter a surveillance o the suspects, interrogated $ienvenido %chave& in Camp Crame.

Two days later, they apprehended $albino %chave& and "lejandro #ucero. They turned them over to theInvestigation (epartment o the CIA. 7

' c. "lberto 'ursal was assigned to conduct the investigation o the suspects. 2e declared that evenbe ore the investigation started, #ucero verbally admitted his participation in the crime and that he wasthe one who shot $ernales, the driver o (r. adrid. !

In any event, ' c. 'ursal went thru the motions o investigation. 2e in ormed #ucero o his constitutionalrights to remain silent and to counsel. When #ucero told him that he had no lawyer, 'ursal in ormedthat CIA #egal (epartment about #uceroEs need or a lawyer. 9 In due time, "tty. (iosdado 'eraltaappeared at the investigatorEs oHce at around /+:: p.m. 2e identiDed himsel as the lawyer who wasre!uested to assist #ucero and in!uired about the latterEs whereabouts. 2e was then directed to where#ucero was.

"tty. 'eralta con erred with #ucero. 2e also apprised #ucero o his constitutional rights. 2e e=plained to#ucero that he has the right to remain silent, that he is not obliged to give any statement to theinvestigators, and that even i he has already given a statement, he may re use to sign it. He observedno reaction from Lucero. Nonetheless, Atty. Peralta gathered the impression that Lucero understood hisadvice .

Therea ter, the CIA investigator began ta5ing down #uceroEs statement. When the investigator startedasking the preliminary questions, Atty. Peralta left to attend the ake of his friend, !apt. "milio#acanay, at $ort %onifacio . 2e gave word that in case o need, he could be reached at his residence.

The ne=t morning, #ucero was accompanied by two 7?8 CIA agents to "tty. 'eraltaEs house. Thee=trajudicial statement o #ucero 7%=hibit C 8, was presented to "tty. 'eralta. &t as already signed by Lucero. &n the presence of the t o '() !&* agents , "tty. 'eralta e=amined %=hibit C and e=plained to#ucero its #egal implications. 2e as5ed #ucero whether he gave the statements voluntarily. #uceroreplied in the aHrmative. "tty. 'eralta then signed %=hibit C . 1"

The three 7>8 accused denied complicity in the in the crime charged.

"ppellant #uceroEs de ense is alibi. 2e testiDed that on ay , /00, he was at his house in Caloocan

City. 2e wo5e up at 9+>: a.m., stayed at his house the whole day repairing the upholstery o acustomerEs chair. 2e was then with his cousin arcelino Aeneta and his wi e ylen #ucero. 2e wor5eduntil < p.m. that day.

#ucero was apprehended on *uly ?<, /00, more than two 7?8 months a ter the commission o the crime.2e said he was surprised when several unidentiDed men accosted him while he was wal5ing towards hishouse. They chased him, handcufed and blind olded him and pushed him into a jeep. 2e was 2e wasblind olded the whole night and did not 5now where he was ta5en. The men turned out to be policeoHcers. #ater, he identiDed one o the men to be Capt. $oa5, head o the CIA Apecial 3perations Group.

The ne=t day, he learned he was in Camp Crame. 2e claimed that he was tortured. 2e was not in ormed



o the ofense or which he was being investigated. @either did they reveal the identity o thecomplainant. " couple o days lapsed and a CIA agent brought him to a clinic inside Camp Crame. Thedoctor saw the contusions on his body. 2e advised that he be treated. The CIA agent re used and theyle t the clinic.

#ucero denied 5nowing (r. adrid, the %chave& brothers and the other accused in this case. 2e said heonly met (r. adrid at the CIA 3Hce during the police line-up. He as made to line+up four ' ) timesbefore #r. -adrid nally identi ed him on the fourth time .

#ucero also claimed he signed the e=trajudicial con ession 7%=hibit C 8 11 under duress. 2e deniedengaging the services o "tty. 'eralta. 2e li5ewise conDrmed that "tty. 'eralta was not present duringhis actual custodial interrogation. 12

" ter trial, the court a quo ac!uitted the %chave& brothers or insuHcient evidence. The trial court,however, convicted accused #ucero. The dispositive portion o the (ecision 13 reads+

"CC3)(I@G#J, judgment is hereby rendered as ollows+

. The accused brothers $I%@F%@I(3 %C2"F%4 y F"#I(" and $"#$I@3 %C2"F%4 y F"#I(" are hereby"C1KITT%( or insuHciency o evidence; and

?. "ccused "#%*"@()3 #KC%)3 y C3)T%# is hereby ound GKI#TJ beyond reasonable doubt as principal

by direct participation o )obbery with 2omicide. "lejandro #ucero is hereby sentenced to sufer animprisonment term o /"!L0*&1N P"/P"20A .

3n the civil aspect, "lejandro #ucero is hereby ordered a8 to pay the heirs o the deceased victim#oren&o $ernales y "leria the sum o '>:,:::.:: as actual damages and '<:,:::.:: as moral damagesor the mental anguish sufered by his amily; and b8 to pay (r. (emetrio 4. adrid the sum o

'>9>,9::.:: representing the cash money, and money value o the jewelries and wristwatch he lost dueto the robbery at bar.

A3 3)(%)%(. 1

2ence this appeal by #ucero, raising the ollowing assignments o error+

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We Dnd the appeal meritorious.

The conviction o appellant rests on two 7?8 acts+ 7a8 his positive identiDcation by the complainant, and7b8 his e=tra-judicial con ession admitting his participation in the crime. We Dnd that the evidenceproving these acts cannot stand scrutiny.

irstly, the credibility o the main prosecution eyewitness, (r. (emetrio adrid who identiDed appellant,is seriously open to doubt. It stands unrebutted on the record that appellant had to participate at the

police line-up four ' ) times be ore he was Dnally identiDed by (r. adrid. There is no reason or theambivalence. The robbery too5 place in broad daylight and the three male actors wore no mas5. Theydrove them around or three 7>8 hours. Considering these circumstances, there is no reason or (r.adridEs ailure to immediately identi y appellant.

We are also disconcerted by the vacillating testimony o (r. adrid during the trial. Initially, (r. adridclaimed that he could identi y only one o the robbers who staged the hold-up. 15 "t another point, (r.adrid said he could identi y two o the male actors. 16 In his aHdavit, (r. adrid presented he couldidenti y all three. 17 "ppellantEs conviction cannot be made to rest on this nebulous identiDcation by (r.adrid.

Aecondly, appellantEs conviction cannot be based on his e=tra-judicial con ession.

The /0 Constitution 1! re!uires that a person under investigation or the commission o a crime shouldbe provided with counsel. We have constitutionali&ed the right to counsel because o our hostilityagainst the use o duress and other undue inBuence in e=tracting con essions rom a suspect. orce andraud tarnish con essions and render them inadmissible. 19 We ta5e pride in constitutionali&ing this rightto counsel even while other countries have desisted rom elevating this right to a higher pedestal. Wehave sustained the inviolability o this precious right with vigor and without any apology.

The trial court did not display the re!uired sensitivity to appellantEs right to counsel. Indeed, it did notimpose a rigorous respect or the right. It was satisDed that there was substantial compliance with there!uirements o right to counsel. This is ar rom the intent o the Constitution. The records show that"tty. 'eraltaEs, who was not the counsel o choice o appellant, arrived at the CIA 3Hce an the secondnight o appellantEs detention. ore e=actly, he arrived at the CIA 3Hce at around /+:: p.m. and tal5edwith appellant about his rights. "tty. 'eralta himsel admitted he received no reaction rom appellantalthough his impression as that appellant understood him . 2" Worse, Atty. Peralta left appellant in thecustody of the !&* agents hen his real interrogation started . 2e said he had to attend the wa5e o ariend. 2is attitude did not spea5 well o the importance he gave to his role as counsel to a person

under custodial interrogation or the commission o a very serious ofense. It was during his absencethat appellant gave an uncounselled con ession. They tried to cure his uncounselled con ession or thene=t day, appellant was brought by two 7?8 CIA agents to "tty. 'eraltaEs house. &n the presence of theseagents , "tty. 'eralta as5ed appellant i he understood the statements he gave and i he signed itvoluntarily. "ppellant, o course, aHrmed the voluntariness o the e=ecution o the con ession. "tty.'eralta was satisDed and the trial court ruled that appellantEs right to counsel was not in ringed. Wedisagree.

We hold that when the Constitution re!uires the right to counsel, it did not mean any kind o counselbut e3ective and vigilant counsel. The circumstances in the case at bench clearly demonstrate thatappellant received no efective counseling rom "tty. 'eralta. In People v. #e 4u5man , 21 we held that incustodial investigation, the right to counsel attaches rom the moment the investigation starts, i.e. ,when the investigating oHcer starts to as5 !uestions to elicit in ormation and con essions or admissionsrom the accused. In this case, at the crucial point when the interrogation was 6ust starting , "tty. 'eraltale t appellant to attend the wa5e o a riend . "t that critical stage, appellant gave his uncounsellede=tra-judicial a con ession. Aurely, such a con ession where appellant was unprotected rom mischie cannot convict.

@either can the trial court convict appellant on the ground that alibi is inherently a wea5 de ense.



Chiseled in our jurisprudence is the rule that the onus is on the prosecution to prove the guilt o theaccused beyond reasonable doubt. Given the uncertainty o appellantEs identiDcation and theinadmissibility o his uncounselled con ession, there is no thread o evidence to criminally inculpateappellant.

I@ FI%W W2%)%3 , the (ecision in Criminal Case @o. 1-00-?: o the )egional Trial Court o 1ue&onCity , $ranch CIII, convicting appellant "lejandro #ucero y Cortel o robbery with homicide is hereby)%F%)A%( "@( A%T "AI(%.

A3 3)(%)%(.

G.R. No. 1!7536 A#$#%& 1", 2"11

PEOPLE OF THE PHILIPPINES, 'laintif-"ppellee,

vs.

MICHAEL 'O(INGO a)*a% +MICHAEL 'O(INGCO+ a - RE NANTE COL, "ccused-"ppellants.

( % C I A I 3 @

PERE/, J.:

or review is the "mended (ecision dated 6 @ovember ?::0 o the Court o "ppeals in C"-G.). C)-2.C. @o. ::9<0, Dnding appellants ichael $o5ingco ? 7$o5ingco8 and )eynante Col 7Col8 guilty asconspirators beyond reasonable doubt o the crime o urder and sentencing them to sufer the penaltyo reclusion perpetua.

3n > *uly ?:::, an In ormation > was Dled against appellants charging them o the crime o murdercommitted as ollows+

That on or about the ?/th day o ebruary, ?::: in the City o "ngeles, 'hilippines and within the jurisdiction o this 2onorable Court, the above-named accused, conspiring and con ederating togetherand mutually helping each other, armed with a claw hammer and with intent to 5ill by means o



treachery, evident premeditation, abuse o conDdence, and nighttime, did then and there will ully,unlaw ully and eloniously attac5, assault and maul @3#I '"AI3@, by hitting and beating his head andother parts o his body with said hammer, thereby inBicting upon said @3#I '"AI3@ atal wounds on hishead and body which caused his death. 6

3n arraignment, $o5ingco entered a guilty plea while Col pleaded not guilty. (uring the pre-trial,$o5ingco con essed to the crime charged. <

The victim, @oli 'asion 7'asion8 and his wi e, %lsa, were residing in a house along ac "rthur 2ighway in$alibago, "ngeles City. 'asion owned a pawnshop, which ormed part o his house. 2e also maintainedtwo 7?8 rows o apartment units at the bac5 o his house. The Drst row had si= 798 units, one o which is"partment @o. < and was being leased to (ante Fitalicio 7Fitalicio8, 'asionPs brother-in-law, while theother row was still under construction at the time o his death. "ppellants, who were staying in"partment @o. >, were among the > construction wor5ers employed by 'asion. 9

The prosecutionPs evidence show that at around +:: a.m. on ?/ ebruary ?:::, Fitalicio was spin-drying his clothes inside his apartment when 'asion came rom the ront door, passed by him and wentout o the bac5 door. " ew minutes later, he heard a commotion rom "partment @o. >. 2e headed tosaid unit to chec5. 2e peeped through a screen door and saw $o5ingco hitting something on the Boor.Kpon seeing Fitalicio, $o5ingco allegedly pushed open the screen door and attac5ed him with a

hammer in his hand. " struggle ensued and Fitalicio was hit several times. Fitalicio bit $o5ingcoPs nec5and managed to push him away. $o5ingco tried to chase Fitalicio but was eventually subdued by a co-wor5er. Fitalicio proceeded to his house and was told by his wi e that 'asion was ound dead in the5itchen o "partment @o. >. Fitalicio went bac5 to "partment @o. > and saw 'asionPs body lying Bat onthe 5itchen Boor. 'asion and Fitalicio were brought to the hospital. 'asion e=pired a ew hours laterwhile Fitalicio was treated or his injuries. 0

%lsa testiDed that she was in the masterPs bedroom on the second Boor o the house when she heardbanging sounds and her husbandPs moans. Ahe immediately got of the bed and went down. $e orereaching the 5itchen, Col bloc5ed her way. %lsa as5ed him why he was inside their house but Colsuddenly ran towards her, sprayed tear gas on her eyes and po5ed a sharp object under her chin. %lsawas wounded when she bowed her head to avoid the tear gas. / Col then instructed her to open the vault

o the pawnshop but %lsa in ormed him that she does not 5now the combination loc5. %lsa tried oferinghim money but Col dragged her towards the bac5 door by holding her nec5 and pulling her bac5ward.$e ore they reached the door, %lsa saw $o5ingco open the screen door and heard him tell Col+ tara,patay na siya. : Col immediately let her go and ran away with $o5ingco. %lsa proceeded to "partment@o. >. Thereat, she saw her husband lying on the Boor, bathed in his own blood.

'3> 1uirino (ayrit 7'3> (ayrit8 was stationed at 'olice Atation @o. 6 in $arangay Aala5ot, $alibago,"ngeles City. "t +?: a.m. o ?/ ebruary ?:::, he received a phone call regarding the incident. 2e,together with a certain 'QInsp. aniago, proceeded to "partment @o. > and conducted an investigation.2e noticed a pool o blood on the cemented Boor o the 5itchen. 2e also saw a claw hammer with agreen lead pipe handle appro=imately > inches long near the 5itchen sin5. " lead pipe measuring 6:inches and a chisel were also ound in the nearby construction site. The police went to "ngelesKniversity edical Center a terwards. '3> (ayrit saw 'asion lying in one o the beds while Fitalicio wasstill loitering around the emergency room. 2e approached Fitalicio and %lsa who both in ormed him othe incident. ? 2e prepared a police report on the same day narrating the result o his investigation. >

%velyn Gan, the stenographic reporter o 'rosecutor #ucina (ayaon, jotted down notes during thepreliminary investigation. Ahe attests that $o5ingco admitted that he conspired with Col to 5ill 'asionand that they planned the 5illing several days be ore because they got ed up with 'asion. 6

The necropsy report prepared by (r. *oven G. %sguerra 7(r. %sguerra8, contained the ollowing Dndings+

. ar5ed pallor o lips and nailbeds



?. $ody in rigor mortis

>. Contusion with hematoma, right medial in raorbital region e=tending to the right o the root o thenose.

6. Contusion with hematoma, le t post-auricular region.

<. Contusion with hematoma, right angle o mandible.

9. Contusion with hematoma, right mandibular region.. Contusion with hematoma, le t occipital region.

0. Contusion with hematoma, right ronto-parietal region.

/. Contusion with hematoma, right supraorbital region.

:. "brasions, linear, conBuent, pro=imal third, right leg anterior ? R = 9 R cm.

. Contusion with hematoma, le t shoulder, level o head o le t humerus.

?. Atab wound, anterior chest along the anterior median line, cm above the nipple line, :.0cmlength, :.< cm wide and cm deep, hitting and puncturing the manubrium sterni, not entering thethoracic cavity. $oth e=tremities round.

>. ? stab wounds, non-penetrating, anterior chest, > cm to the le t o the anterior median line, > cmbelow injury 7 ?8 6 cm the right o the anterior median line 6 R on below injury 7 ?8. Wound :.0 cm inlength, both e=tremities round.

6. #acerated wound, semi-lunar shape, > cm length, le t shoulder.

<. #acerated wound, right eyebrow area, C-shaped ? R cm length.

9. #acerated wound, lateral angle, right eye, :.0 cm length.

. #acerated wound, right supraorbital region, medial aspect, ? cm length.

0. #acerated wound, semi-lunar, < cm length, occipital region < cm length involving all layers o thescalp with brain tissue seen on the gaping wound.

/. #acerated wound, 6 cm length, C-shaped ? R cm to the right o injury 7 08 R cm below, woundinvolving the whole scalp.

?:. #acerated wound, le t post-auricular region, C-shaped 6 cm length, > cm length.

? . #acerated wound le t post-auricular region, region o the s!uamous part o the le t temporal bone,C-shaped 7?8 >.< cm and 6 cm lengths.

??. #acerated wound, right mandibular region 6 cm length, cm wide.

?>. #acerated wound, stellate, <.< = < = < cm, right ronto-parietal region with brain tissue out o thegaping wound.

?6. #acerated wound, right submandibular region :.> = >.< cm.

?<. #acerated wound, right chee5 :.0 cm length.

?9. (epressed, complete racture, occipital bone right with stellate linear e=tensions, with gaping, withbrain tissue maseration.

? . A5ull racture, right ronto-parietal region, depressed, complete, C-shaped with linear e=tensions,with gaping o bone with brain tissue maceration and e=pulsion.

?0. 2emorrhage, massive, subdural and epidural.

?/. $rain tissue damage. <

(r. %sguerra concluded that the injuries sustained by 'asion on his s5ull proved atal. 9



"ppellants testiDed on their own behal . $o5ingco recalled that he was sleeping in "partment @o. > ataround +?: a.m. on ?/ ebruary ?::: when he was awa5ened by 'asion who appeared to beinto=icated. The latter wanted to 5now why he did not see $o5ingco at the construction site on ?0ebruary ?:::. When $o5ingco replied that he just stayed at the apartment the whole day, 'asionsuddenly hit him in the head. This prompted $o5ingco to ta5e a hammer and hit 'asion. They bothstruggled and $o5ingco repeatedly hit 'asion. $o5ingco escaped to anila right a ter the incident. 2ewas subse!uently arrested in indanao on *une ?:::. (uring the cross-e=amination, $o5ingco

admitted that he harbored ill eelings towards 'asion. 0

Col conDrmed that he was one o the construction wor5ers employed by 'asion. 2e however resignedon ?9 ebruary ?::: because o the deductions rom his salary. 2e went home to Cainta, )i&al, wherehe was apprehended and brought to Camp 3livas. Kpon reaching the camp, he saw $o5ingco whopointed to him as the person who 5illed 'asion. 2e insisted that he doesnPt 5now $o5ingco very well. /

3n 9 (ecember ?::6, the trial court rendered judgment ?: Dnding appellants guilty beyond reasonabledoubt o murder, vi&+

W2%)% 3)%, the Court Dnds accused IC2"%# $3MI@G3 alias IC2"%# $3MI@GC3 and )%J@"@T% C3#guilty beyond reasonable doubt o the crime o K)(%), deDned and penali&ed in "rt. ?60 o the)evised 'enal Code, and there being the two aggravating circumstances o nighttime and abuse o

conDdence to be considered against both accused and the mitigating circumstance o voluntary plea oguilty in avor o accused $o5ingo only, hereby sentences each o them to sufer the penalty o (%"T2.%ach accused is ordered to indemni y the heirs o victim @oli 'asion in the amount o Aeventy Dvethousand pesos 7' <,:::.::8 to pay the heirs o the victim Aeventeen thousand si= hundred pesos7' ,9::.::8 as actual damages, i teen thousand pesos 7' <,:::.::8 as attorneyPs ees, Twenty Dvethousand pesos 7'?<,:::.::8 as e=emplary damages, and to pay the costs. ?

In its (ecision dated ?6 *uly ?::0, the Court o "ppeals aHrmed the Dndings o the trial court butreduced the penalty to reclusion perpetua in view o )epublic "ct @o. 9</, thus+

W2%)% 3)%, the assailed (ecision is " I) %( with 3(I IC"TI3@. "ccused-appellant )%J@"@T% C3#is ound GKI#TJ as conspirator beyond reasonable doubt o K)(%) as deDned in "rticle ?60 o the)evised 'enal Code, as amended by )epublic "ct @o. 9</, !ualiDed by treachery and evident

premeditation and with the attendant aggravating circumstances o nighttime and abuse o conDdence,with no mitigating circumstances. The proper imposable penalty would have been death. 2owever,pursuant to )epublic "ct @o. />69, appellant is sentenced to sufer the penalty o )eclusion 'erpetua."ccused-appellant is urther ordered to indemni y the heirs o victim @oli 'asion in the amount oAeventy Dve thousand pesos 7' <,:::.::8; i ty thousand pesos 7'<:,:::.::8 as moral damages;

Twenty Dve thousand pesos 7'?<,:::.::8 as e=emplary damages; Twenty Dve thousand pesos7'?<,:::.::8 as temperate damages; i teen thousand pesos 7' <,:::.::8 as attorneyPs ees; and topay the costs. ??

"ppellants Dled a otion or )econsideration ?> and called the appellate courtPs attention on the omissionto rule on $o5ingcoPs ate when it rendered the challenged decision. "ppellants also noted the absenceo other evidence, aside rom $o5ingcoPs admission, to prove that conspiracy e=isted in the instant

case. "ppellants maintained that the admission made by $o5ingco cannot be used as evidence againsthis alleged co-conspirator. "ppellants also too5 e=ception to the Dndings o the lower courts that theaggravating circumstances o treachery, evident premeditation, nighttime and abuse o conDdenceattended the commission o the crime. ?6

The Court o "ppeals merely modiDed its (ecision by including the criminal liability o $o5ingco in itsdispositive portion o its "mended (ecision, which reads+

W2%)% 3)%, the assailed (ecision is " I) %( with 3(I IC"TI3@. "ccused-appellants IC2"%#$3MI@GC3 and )%J@"@T% C3# are ound GKI#TJ as conspirators beyond reasonable doubt o K)(%)as deDned in "rticle ?60 o the )evised 'enal Code, as amended by )epublic "ct @o. 9</, !ualiDed by



treachery and evident premeditation and with the attendant aggravating circumstances o nighttimeand abuse o conDdence, with no mitigating circumstances. The proper imposable penalty would havebeen death. 2owever, pursuant to )epublic "ct @o. />69, the accused-appellant are sentenced to suferthe penalty o )eclusion 'erpetua without the possibility o parole 7in accordance with Aection > o thesaid law8. %ach o the accused-appellants is urther ordered to indemni y the heirs o victim @oli 'asionin the amount o Aeventy Dve thousand pesos 7' <,:::.::8; i ty thousand pesos 7'<:,:::.::8 as moraldamages; Twenty Dve thousand pesos 7'?<,:::.::8 as e=emplary damages; Twenty Dve thousand pesos

7'?<,:::.::8 as temperate damages; i teen thousand pesos 7' <,:::.::8 as attorneyPs ees; and topay the costs. ?<

"ppellants Dled a notice o appeal. In its )esolution dated ?9 3ctober ?::/, this Court re!uired theparties to submit their Aupplemental $rie s within >: days rom notice thereo i they so desire. ?9 "ppellants mani ested that they are no longer Dling a Aupplemental $rie and are adopting theirarguments in the "ppellantPs $rie submitted be ore the Court o "ppeals. ? The appellee li5ewisemani ested that it is dispensing with the Dling o a Aupplemental $rie . ?0 The instant case was thussubmitted or deliberation.

In see5ing the reversal o the Court o "ppealsP "mended (ecision, two issues were raised+ 8 whetherthe !uali ying circumstances were properly appreciated to convict appellant $o5ingco o murder and ?8whether appellant Col is guilty beyond reasonable doubt as a co-conspirator.

There is no !uestion that $o5ingco attac5ed and 5illed 'asion. $o5ingco made two 7?8 separate anddissimilar admissions+ Drst, in his e=trajudicial con ession ta5en during the preliminary investigationwhere he admitted that he and Col planned the 5illing o 'asion; and second, when he testiDed in opencourt that he was only provo5ed in hitting 'asion bac5 when the latter hit him in the head. 3n the basiso his e=trajudicial con ession, $o5ingco was charged or murder !ualiDed by evident premeditation andtreachery.

"ppellants maintain that they could not be convicted o murder. They !uestion the presence otreachery in the commission o the crime considering that no one rom the prosecution witnessestestiDed on how 'asion was attac5ed by $o5ingco. They also submit that evident premeditation was notproven in the case. They belittle $o5ingcoPs e=trajudicial admission that he and Col planned the 5illing.

The attendance o the aggravating circumstances o nighttime and abuse o conDdence was li5ewiseassailed by appellants. They aver that nighttime was not purposely sought but it was merely co-incidental that the crime too5 place at that time. @either has trust and conDdence been reposed onappellants by the victim to aggravate the crime by abuse o conDdence. "ppellants claim that theywere living in an apartment owned by 'asion, not because the latter trusted them but because theywor5ed in the construction o the victimPs apartment.

3n the other hand, the 3AG emphasi&es that the prosecution has established that 'asion wasde enseless when atally attac5ed by $o5ingco and there was no opportunity or him to de end himselrom the une=pected assaults o $o5ingco. The 3AG agrees as well with the trial courtPs Dndings thatevident premeditation, nighttime, and abuse o conDdence attended the commission o the crime.

We agree with appellants that treachery cannot be appreciated to !uali y the crime to murder in the

absence o any proo o the manner in which the aggression was commenced. or treachery to beappreciated, the prosecution must prove that at the time o the attac5, the victim was not in a positionto de end himsel , and that the ofender consciously adopted the particular means, method or orm oattac5 employed by him. ?/ @obody witnessed the commencement and the manner o the attac5. Whilethe witness Fitalicio managed to see $o5ingco hitting something on the Boor, he ailed to see the victimat that time. >:

$o5ingco admitted in open court that he 5illed 'asion. > $ut the admitted manner o 5illing isinconsistent with evident premeditation. To warrant a Dnding o evident premeditation, the prosecutionmust establish the conBuence o the ollowing re!uisites+ 7a8 the time when the ofender was



determined to commit the crime; 7b8 an act mani estly indicating that the ofender clung to hisdetermination; and 7c8 a suHcient interval o time between the determination and the e=ecution o thecrime to allow him to reBect upon the conse!uences o his act. >? It is indispensable to show how andwhen the plan to 5ill was hatched or how much time had elapsed be ore it was carried out. >> In theinstant case, no proo was shown as to how and when the plan to 5ill was devised. $o5ingco admitted incourt that he only retaliated when 'asion allegedly hit him in the head. >6 (espite the act that $o5ingcoadmitted that he was treated poorly by 'asion, the prosecution ailed to establish that $o5ingco

planned the attac5.

It was during the preliminary investigation that $o5ingco mentioned his and ColPs plan to 5ill 'asion. >< $o5ingcoPs con ession was admittedly ta5en without the assistance o counsel in violation o Aection ?,"rticle III o the /0 Constitution, which provides+

Aection ?. 7 8 "ny person under investigation or the commission o an ofense shall have the right tobe in ormed o his right to remain silent and to have competent and independent counsel pre erably ohis own choice. I the person cannot aford the services o counsel, he must be provided with one. Theserights cannot be waived e=cept in writing and in the presence o counsel.

= = = =

7>8 "ny con ession or admission obtained in violation o this or Aection hereo shall be inadmissible

in evidence against him.

In 'eople v. Aunga, >9 we held that the right to counsel applies in certain pretrial proceedings that can bedeemed Scritical stagesP in the criminal process. The preliminary investigation can be no diferent romthe in-custody interrogations by the police, or a suspect who ta5es part in a preliminary investigationwill be subjected to no less than the AtateEs processes, o tentimes intimidating and relentless, opursuing those who might be liable or criminal prosecution. > In said case, Aunga made anuncounselled admission be ore the police. 2e later ac5nowledged the same admission be ore the judgein a preliminary investigation. Aunga was thrust into the preliminary investigation and while he did havea counsel, or the latterPs lac5 o vigilance and commitment to AungaPs rights, he was virtually deniedhis right to counsel. Thus, the uncounselled admission was held inadmissible. >0 In the instant case, thee=trajudicial con ession is inadmissible against $o5ingco because he was not assisted at all by counsel

during the time his con ession was ta5en be ore a judge. The Dnding that nighttime attended the commission o the crime is anchored on the presumption thatthere was evident premeditation. 2aving ruled however that evident premeditation has not beenproved, the aggravating circumstance o nighttime cannot be properly appreciated. There was noevidence to show that $o5ingco purposely sought nighttime to acilitate the commission o the ofense.

"buse o conDdence could not also be appreciated as an aggravating circumstance in this case. Ta5inginto account that act that $o5ingco wor5s or 'asion, it may be conceded that he enjoyed the trust andconDdence o 'asion. 2owever, there was no showing that he too5 advantage o said trust to acilitatethe commission o the crime.

" downgrade o conviction rom murder to homicide is proper or $o5ingco or ailure o the prosecutionto prove the presence o the !uali ying circumstances.

Knder "rticle ?6/ o the )evised 'enal Code, the applicable penalty or homicide is reclusion temporal. There being no mitigating or aggravating circumstance alleged and proven in the instant case, thepenalty should be applied in its medium period pursuant to "rticle 967 8 o the )evised 'enal Code,which ranges rom a minimum o 6 years, 0 months and day to a ma=imum o years and 6months. "pplying the Indeterminate Aentence #aw, the imposable penalty shall be within the range oprision mayor in any o its periods as minimum to reclusion temporal in its medium period as thema=imum. The range o prision mayor is rom 9 years and day to ? years, while reclusion temporalin its medium period, ranges rom 6 years, 0 months and day to years and 6 months. There ore,



the indeterminate penalty o si= years and one day o prision mayor as minimum to 6 years, eightmonths and one day o reclusion temporal, as ma=imum is appropriate under the circumstances. >/ Theaward o e=emplary damages should be deleted as no aggravating circumstance was proven.

Col, on the other hand, was charged as a co-conspirator. 2e contends that to hold him guilty as co-conspirator, it must be established that he per ormed an overt act in urtherance o the conspiracy."pplying Aection >:, )ule >: o the )ules o Court, Col asserts that $o5ingcoPs uncounselled testimonythat appellants planned to 5ill 'asion bears no relevance considering the act that there was no otherevidence which will prove the conspiracy. Col also claims that %lsaPs statements during trial, such as thepresence o Col inside her house and his orcing her to open the vault o the pawnshop, as well as thealleged statement she heard rom $o5ingco Tara, patay na siya, are not ade!uate to support theDnding o conspiracy.

The 3Hce o the Aolicitor General 73AG8 justiDes ColPs conviction o murder by conspiracy bymentioning that starting rom the declaration o $o5ingco, the victimPs wi e, %lsa, also positivelydeclared that Col bloc5ed and attac5ed her with a 5ni e when she tried to chec5 on her husband. Ahewas le t alone by Col when he was told by $o5ingco that the victim was already dead. or the 3AG,appellantsP acts are indicative o conspiracy. The 3AG contends that the prosecution witnesses had noill-motive to lie and alsely accuse appellants o the crime o murder.

The lower courts concluded that there was conspiracy between appellants.We disagree.

This Court is well aware o the policy to accord proper de erence to the actual Dndings o the trial court,owing to their uni!ue opportunity to observe the witnesses Drsthand and note their demeanor, conduct,and attitude under grueling e=amination. 6: 2owever, this rule admits o e=ceptions, namely+ 8 when thetrial courtPs Dndings o acts and conclusions are not supported by the evidence on record, or ?8 whencertain acts o substance and value li5ely to change the outcome o the case have been overloo5ed bythe lower court, or >8 when the assailed decision is based on a misapprehension o acts. 6 The seconde=ception obtains in this case.

Indeed, in order to convict Col as a principal by direct participation in the case be ore us, it is necessarythat conspiracy between him and $o5ingco be proved. Conspiracy e=ists when two or more personscome to an agreement to commit an unlaw ul act. It may be in erred rom the conduct o the accusedbe ore, during, and a ter the commission o the crime. Conspiracy may be deduced rom the mode andmanner in which the ofense was perpetrated or in erred rom the acts o the accused evincing a joint orcommon purpose and design, concerted action, and community o interest. 6? Knity o purpose and unityin the e=ecution o the unlaw ul objective are essential to establish the e=istence o conspiracy. 6>

"s a rule, conspiracy must be established with the same !uantum o proo as the crime itsel and mustbe shown as clearly as the commission o the crime. 66

The Dnding o conspiracy was premised on %lsaPs testimony that appellants Bed together a ter 5illingher husband and the e=trajudicial con ession o $o5ingco.

@obody witnessed the commencement o the attac5. Col was not seen at the apartment where 'asion

was being attac5ed by $o5ingco. In act, he was at %lsaPs house and allegedly ordering her to open thepawnshop vault, thus+

1+ (o you remember any unusual incident that happened on that time and date when you were in yourmasterPs bedroom

"+ I heard a bumping sound 75alabog8 at the bac5 portion o our building where we reside.

= = = =

1+ What did you do when you heard those sounds in the wee hours o the morning on that day whenyou were in your masterPs bedroom



"+ I wondered why and I immediately went down to the 5itchen since the door o the 5itchen wasdirectly leading to the bac5 door or bac5 portion o the building where the apartments were situated.

1+ Why, on what Boor is this masterPs bedroom located

"+ Aecond Boor.

1+ Were you actually able to go down and see what was happening

"+ Jes, sir, but I was only able to reach the stairs leading to the 5itchen. I was not able to go out o the5itchen because I was bloc5ed.

1+ Jou were bloc5ed by whom

"+ $y )eynante Col.

1+ "re you re erring to the same )eynante Col, the accused in this case

"+ Jes, sir.

= = = =

1+ Jou said you were bloc5ed by )eynante Col. 2ow did he bloc5 you

"+ "s soon as I reached the stairs, I was bloc5ed by )eynante Col and he was situated near the bac5

door o the pawnshop. There is a pawnshop in the ront portion o our residence.1+ When you saw him near the door o your pawnshop, did you con ront him

"+ Jes, sir.

1+ 2ow did you con ront him

"+ I as5ed him, )eynante, what are you doing here

1+ What was the reaction o )eynante Col

"+ 2e ran towards me and sprayed something into my eyes and he put a sharp object under my chin.7Witness demonstrating by putting her hand under her chin8

1+ 2ow ar was he be ore he attac5ed you

"+ 'robably, rom the witness stand up to the chair o iscal 2ilario. aybe two steps away rom him.7"round > meters8

1+ Were you able to identi y what this spray is and what part o your body was hit

"+ y eyes were sprayed with tear gas.

1+ What did you eel when your eyes was 7sic8 sprayed with tear gas

"+ It was mahapdi 7pain ul8.

1+ When you elt pain in your eyes, how were you able to see something or a sharp weapon under yourchin

"+ $e ore he sprayed the tear gas to my eyes, I was able to see him po5e the sharp object under my

chin and I bowed my head a little to avoid the tear gas. I was wounded under my chin and I elt thesharpness o the object. 6<

= = = =

1+ What else happened while he was doing that to you

"+ 2e sprayed tear gas in my eyes and told me to be silent.

1+ What else, i any, did he tell you

"+ To open the combination o the vault.



1+ (id you comply to his order that you open the combination o the vault

"+ @o, sir. I do not 5now the combination.

1+ What vault are you re erring to

"+ Fault o the pawnshop.

1+ Where is that pawnshop located with re erence to your residence

"+ "t the Drst Boor is the pawnshop and at the bac5 is our 5itchen.1+ When you re used to open the vault o the pawnshop, what did )eynante Col do about it

"+ 2e did not say anything.

1+ 2ow about you, was there anything else you did

"+ I ofered him money so he will not 5ill me.

1+ When you ofered him money so he will not 5ill you, did he agree

"+ @o, sir.

1+ What else happened ne=t when he did not agree to your ofer o money

"+ 2e dragged me going towards the bac5 door. 69

$ased on these acts alone, it cannot be logically in erred that Col conspired with $o5ingco in 5illing'asion. "t the most, ColPs actuations can be e!uated to attempted robbery, which was actually theinitial in ormation Dled against appellants be ore it was amended, on motion o the prosecution, ormurder. 6

%lsa testiDed that she heard $o5ingco call out to Col that 'asion had been 5illed and that they had toleave the place. This does not prove that they acted in concert towards the consummation o the crime.It only proves, at best, that there were two crimes committed simultaneously and they were united intheir eforts to escape rom the crimes they separately committed.

Their acts did not reveal a unity o purpose that is to 5ill 'asion. $o5ingco had already 5illed 'asion evenbe ore he sought Col. Their moves were not coordinated because while $o5ingco was 5illing 'asion

because o his pent-up anger, Col was attempting to rob the pawnshop. 7avvphi7

In as much as $o5ingcoPs e=trajudicial con ession is inadmissible against him, it is li5ewise inadmissibleagainst Col, speciDcally where he implicated the latter as a cohort. Knder Aection ?0, )ule >: o the)ules o Court, the rights o a party cannot be prejudiced by an act, declaration or omission o another.)es inter alios acta alteri nocere non debet. Conse!uently, an e=trajudicial con ession is binding only onthe con essant, is not admissible against his or her co-accused, and is considered as hearsay againstthem. 60 "n e=ception to the res inter alios acta rule is an admission made by a conspirator. Aection >:,)ule >: o the )ules o Court provides that the act or declaration o the conspirator relating to theconspiracy and during its e=istence may be given in evidence against the co-conspirator provided thatthe conspiracy is shown by evidence other than by such act or declaration. 6/ In order that the admissiono a conspirator may be received against his or her co-conspirators, it is necessary that Drst, the

conspiracy be Drst proved by evidence other than the admission itsel ; second, the admission relates tothe common object; and third, it has been made while the declarant was engaged in carrying out theconspiracy. <: "s we have previously discussed, we did not Dnd any suHcient evidence to establish thee=istence o conspiracy. There ore, the e=trajudicial con ession has no probative value and isinadmissible in evidence against Col.

$o5ingcoPs judicial admission e=culpated Col because $o5ingco admitted that he only attac5ed 'asiona ter the latter hit him in the head.

"ll told, an ac!uittal or Col is in order because no suHcient evidence was adduced to implicate him.



W2%)% 3)%, the appeal is G)"@T%(. The (ecision o the Court o "ppeals in C"-G.). C)-2.C. @o.::9<0 is )%F%)A%( and A%T "AI(%. "ppellant )eynante Col is "C1KITT%( on ground o reasonabledoubt. The $ureau o Corrections is ordered to cause the immediate release o accused-appellant,unless he is being law ully held or another cause, and to in orm this Court o action ta5en within ten7 :8 days rom notice.

"ppellant ichael $o5ingco is ound GKI#TJ beyond reasonable doubt o the crime o 2omicide. 2e ishereby sentenced to sufer the penalty o si= years 798 and one 7 8 day o prision mayor as minimum to6 years, eight 708 months and one 7 8 day o reclusion temporal, as ma=imum "ppellant is urtherordered to indemni y the heirs o @oli 'asion in the amount o Aeventy Dve thousand pesos7' <,:::.::8; i ty thousand pesos 7'<:,:::.::8 as moral damages; Twenty Dve thousand pesos7'?<,:::.::8 as temperate damages; i teen thousand pesos 7' <,:::.::8 as attorneyPs ees; and topay the costs.

A3 3)(%)%(.



G.R. No%. L0 696"062 Ja #a y !, 19!7

PEOPLE OF THE PHILIPPINES, plaintif-appelle

vs.

ILFREDO ROJAS, TEODORO ILLARIN, SOLOMON TOTO , GREGORIO TUNDAG a - SINFROSOMASONG, de endants-appellants.

2he *olicitor 4eneral for plainti3+appellee.

4regorio /. !astillo for defendants+appellants /o6as, 8illarin, 2undag and -asong.

Angel P. Purisima for defendant+appellant *olomon 2otoy.

PER CURIAM4

The people o (igon in argosatubig, 4amboanga del Aur must still be tal5ing every now and then othe strange 5illings that shoo5 their barrio on that tragic morning o ay ?>, / >, when three girlswere slain, the youngest only Dve years old, under the most mysti ying and shoc5ing circumstances.%ven now the towns ol5 are probably still as5ing, not without a tinge o superstitious ear, the nagging,unanswered !uestions in this macabre case; Why Why the blameless victims "nd why the ruthlessmanner o their slaying

Consider the carnage and the girls who ell be ore the bloodied 5ni e+ 4enaida @astae, ? years old,stabbed once to death, ears severed; Canda Carluman, years old, stabbed once, hemorrhaging todeath; and ona Carluman, < years old, stabbed twice to death, ears severed. 1 These were @atureEscreatures still on the threshold o their lives, and yet they were cut down in the innocence o their youthwithout mercy and without reason.

The day ollowing the massacre, prodded perhaps by a sense not only o duty but also o outrage, a joint 'C-police posse arrested seven persons in $arrio Talanusa, to wit+ Teodoro Fillarin, Aaturnino Totoy,Aolomon Totoy, Gregorio Tundag, Ain roso asong, ohamod %smael and $albino %strera, all suspectedo the 5illings. 2 ound in their possession and conDscated were two home-made shotguns, one .>0caliber homemade pistol with two live bullets, Dve hunting 5nives with scabbards, an undershirt with#atin words arranged in a mystic design, a pair o trousers, our bottles o oil and two human ears. 3 Wil redo )ojas, their alleged leader, was arrested later in alangas, also o 4amboanga del Aur, andturned over to the argosatubig police.

" ter investigation, all the suspects were charged with the er o the above-named victims in three



separate in ormations to which they all pleaded not guilty. 5 #ater, on motion o the prosecution andover the objection o the other de endmurdants, %smael and %strera were discharged so they could beused as state witnesses. 6 %very one o the remaining de endants was provided with counsel de o cio 7 "n e=tended trial ollowed and decision was Dnally rendered on *anuary ? , / <, convicting all o themand sentencing them to death. ! The lone e=ception was Aaturnino Totoy, who, because o themitigating circumstance o minority, was meted out the lesser penalty o eight years and one day o

prision mayor to ourteen years, eight months and one day o reclusion temporal . 9 "ll the accused were

also held solidarily liable or the civil indemnity o ' ?,:::.::, to be paid to the heirs o each o thethree victims. 1"

The sentence o death has brought the case to this Court on automatic review. The records arevoluminous. The accused-appellants are raising actual and legal !uestions which opposing counselhave discussed 5nowledgably and with commendable spirit and earnestness. We shall rule upon theseissues presently.

3n the basis o the testimonial and documentary evidence presented at the trial, the ollowing issubstantially what happened be ore and during the tragic incident, as the lower court saw it.

Aometime in *anuary / > there arrived in $arrio Talanusa, argosatubig, 4amboanga del Aur, astranger rom $arrio Tuboran, alangas, o the same province, bringing with him wordly wares and

presumably also his own concept o the spirit. 2is name was Wil redo )ojas. (uring his stay, hebe riended the other accused, whom he taught to pray the 3ur ather, the 2ail ary, and the I$elieve, in pro ession o the Christian aith as he understood it. 2e also sold them on credit what hecalled anting-anting oil which, he claimed, would, when rubbed on their bodies, protect them rominjury. 11

)ojas returned to Talanusa in "pril o the same year, staying there or two wee5s, and then again inay, joining his new- ound riends as usual in drin5ing wine and in reciting the prayers he had taughtthem. 12 "ll this was leading to the tragic events that would transpire later that month by the sea in(igon.

3n that ate ul morning o ay ?>, / >, )ojas and his companions went to the church in Talanusa,where they prayed, rubbed the amulet oil on their bodies, and girded themelves as i preparing or

battle. )ojas as was armed with a shotgun and a 5ni e. %strera also had a shotgun and a 5ni e. Tundagcarried a revolver and a 5ni e. %smael, asong, Aolomon Totoy and Aaturnino Totoy were armed with5nives. Fillarin alone had no weapons. )ojas as told them they were going to (igon. 13

Together, these eight men proceeded to their destination, about a hal -hourEs wal5 away. "rriving at theseashore where the massacre was soon to ta5e place, they immediately surrounded the copra 5iln toprevent escape o the persons in the enclosure. In the tapahan were 4enaida @astae, the eldest in thegroup, and the Carluman sisters, (alma, Canda, ona and #ina, their ages ranging rom ten years toone. )ojas approached 4enaida and pretended to be loo5ing or a person named Joyong, continuing incasual conversation when he received a negative answer. The girls did not appear to be apprehensiveas yet. Auddenly and without warning, Aolomon Totoy Dred at (alma, but his gun jammed. )ojas thenpulled out his 5ni e and swung at 4enaida, atally wounding her in the le t side o her body with one

stab. The second victim was Canda, whom )ojas stabbed 7or shot 8 in the head, resulting in herbleeding to death. )ojas Dnally turned on the smallest girl in the group, the terriDed ona, whom hestabbed twice in the stomach and in the bac5, also 5illing her. It is not certain when this actuallyhappened U whether be ore or a ter they had died U but to ma5e the gory crimes even more bi&&arre,the ears o 4enaida and ona were severed, by whom it is also not clear "t any rate, a ter the butcherywas done, )ojas ordered the group to run, and - run they did together rom the bloody sands. 1

They had not rec5oned with (alma who, with her sister #ina, had escaped the 5illing by Beeing to thenearby sea and hanging on to a log until the men had le t. 15 Ahe would live to tell about the terriblebloodbath she had seen and survived and to point to the accused as the brutal 5illers.



It was (alma and the two state witnesses, %smael and %strera, who supplied the details in the abovenarration. 16 "lthough there are a number o inconsistencies in their testimony, due probably to thegeneral con usion that characteri&ed the incident, we accept the actual Dndings o the trial judge. Thetrial judge has a superior competence in this regard. " ter all, as we remar5ed in an earlier case, 17 it isthe trial judge who has the opportunity to observe the witnesses and assess their demeanor, to mar5every nuance o tone or pause o hesitation or Bush o ace, and to determine, by the totality o hisimpressions and the plausibility o their testimony, i what they are saying should be rejected or

believed.

The trial judge described (alma as sincere and straight- orward, relating her story without hesitationand stic5ing to it despite rigid cross-e=amination. The 1! naivete o the ten-year old girl was especiallyimpressive and, together with her detailed remembrance o her harrowing e=perience, convinced thecourt that she was telling the truth. "s or state witnesses %smael and %strera, while it has been arguedthat their testimony came rom a polluted source, they being themselves co-conspirators with theaccused, it is noteworthy that their co-conspirator own respective accounts o the tragedy wereconsistent with each other and tallied essentially with (almaEs narration. 19

Thus settling the actual issues, we now address ourselves to the several legal !uestions raised by theaccused-appellants in their assignment o errors. ApeciDcally, they claim that the lower court erred inDnding that there was a conspiracy among them; in imposing upon them collectively the sentence odeath; and in considering against them the aggravating circumstances o cuadrilla dwelling and evidentpremeditation. 2" "dditionally, Aolomon Totoy challenges his supposed con ession on the ground that itwas ta5en in violation o the $ill o )ights. 21

" conspiracy e=ists when two or more persons come to an agreement to commit a crime and decide tocommit it. 22 While it is desirable that the conspiracy be proved by direct evidence, li5e an e=pressunderstanding among the plotters aHrming their commitment and deDning their respective roles, itmay nevertheless be established at times by circumstantial evidence only. 23 Thus, to repeat establisheddoctrine, where the accused move in concert toward a common purpose, conspiracy may be in erredrom their joint acts and design, without need o direct evidence o the criminal agreement. 2 We haveheld in many cases that the conduct o the accused be ore, during and a ter the commission o thecrime, are circumstances that can show whether or not there was a conspiracy among them. 25

In the case at bar, it is not disputed that the accused, in the morning o the 5illings, gathered at thechurch in Talanusa and observed what might be compared to the ceremonies o warriors be ore a battle+prayers or victory, anointing with oil against injury and death, and girding or combat. 26 Aurely, onedoes not ma5e such solemn preparations i the destination were a harmless party, as claimed by theaccused. 27 The record shows that )ojas, the commander as he was called, simply told the group theywere going to (igon, but he did not have to spell out their mission. I only because o the ormidablearsenal they were carrying, the accused could not but have 5nown that their object was more sinisterthan merryma5ing and drin5ing and easting at a social gathering. There was certainly a more deadlypurpose, and all o them were aware o this.

It has been established that upon their arrival in the tapahan at (igon at about eleven oE cloc5 o thatatal morning, the accused immediately positioned themselves around the copra 5iln enclosure,surrounding it to prevent the Dve girls inside rom leaving. 2! 3ne wonders why, i they were not actingin concert, they at once so placed themselves as to orm a ring around the structure in an veritablesiege o their de enseless and unsuspecting prey. @otably, every one too5 his spot as i by pre-arrangement, without need o the leader assigning to them their respective positions, in what some U i they had a sense o the occult U would call a circle o death.

There is no evidence that when Aolomon Totoy suddenly attempted to shoot (alma, the rest o thegroup was surprised, objected or demonstrated. @obody stopped )ojas when he started 5illing theastonished and terriDed victims. There was no protest either when the ears o 4enaida and ona werecut of on )ojasEs orders and wrapped in leaves or sa e5eeping. 29 %verything was done apparently



according to a preconceived design. The group 5new be orehand what was going to happen or, indeed,they had planned it that way. In act, as a Dnal touch, a ter the massacre was over, )ojas ordered themen to run, and obediently they did, Beeing the scene o the crimes at the same time and together. 3"

It is the above acts o the accused, and not necessarily the testimony o %smael and %strera as co-conspirators, that have established the conspiracy. These two state witnesses merely corroborated theprincipal account given by the unhesitant (alma, who had seen everything and told it in everyharrowing un orgettable detail.

The conspiracy having been established, it must now visit e!ual punishment on all the conspirators, onthe legal theory that the act o one is the act o all. 31 This is settled juris prudence. There is no need toharp on it. Indeed, even i it be argued that some did less than the others, it cannot be denied that theirvery participation in the conspiracy added to its strength emboldened the actual 5iller, and contributedto the success o the common design. In the eyes o the law, each conspirator is a co-principal ande!ually guilty with the other members o the plot. 32

It is true that in People v. Nierra , 33 this doctrine was rela=ed in avor o the two accused who, althoughadjudged as co-conspirators, were nonetheless held to be accomplices only and so entitled to a lesserpenalty than that imposed on the other de endants. In that case, however, the participation o one waslimited to introducing the 5iller to the other plotters and delivering the murder weapon to him and the

other merely acted as loo5-out while the crime was being committed. In the instant case, however,every one o the accused acted in concert and was present at the scene o the crime while it was beingcommitted and as an e!ual partner o the rest per ormed his designated part to complete its e=ecution.

There is no !uestion that the 5illings were committed with treachery, to !uali y the crimes to murder. Treachery e=ists when the ofender commits any crime against persons, employing means, methods or

orms in the e=ecution thereo which tend directly and specially to insure its e=ecution, without ris5 tohimsel arising rom any de ense which the ofended party might ma5e, 3 In the instant case, theofended parties were young de enseless girls con ronted by eight ull-grown men armed with guns and5nives who, to ma5e a surprise attac5, pretended to be loo5ing or someone. Three bloody corpses, thevictim o their guile and their superior strength and number, attested to the success o their wic5edplot.

We reject the Dnding by the trial court o dwelling and band as separate aggravating circumstances. 35 %ven the Aolicitor General believes that dwelling should not have been considered because thetapahan in which the murders were committed was a separate structure and did not orm part o thebuilding where the victims were residing. 36 "s or band, it is un!uestionable that cuadrilla is absorbedby treachery since its employment was consciously adopted to insure the e=ecution o the plot withoutris5 to the criminals, by reason o their number, let alone their strength, rom any de ense the ofendedparties might ma5e. 37

$ut evident premeditation is another matter and is correctly appreciated as an aggravatingcircumstance that will increase the penalty. The rule is that under normal conditions, when theconspiracy is directly established with proo o the attendant deliberation and selection o the method,time and means o e=ecuting the crimes, the e=istence o evident premeditation may be ta5en or

granted.3!

In case o implied conspiracy, however, there must be proo as to how and when the planwas hatched and the time that elapsed be ore it was carried out, so it can be determined i the accusedhad suHcient time between its inception and its ulDllment to dispassionately consider the commissiono the crime and its conse!uences. 39 "s this Court has repeatedly held, there should be a showing thatthe accused had the opportunity or reBection, that he had the chance to weigh the pros and cons othe deed he was planning, and that he nonetheless persisted in carrying out his criminal design. "

rom the acts ound by the lower court, there was such a showing. It would appear that the plan tomurder the girls was conceived perhaps as early as during the meetings in "pril and ay between )ojasand the other members o the group, or at the very latest when they all assembled in the church at



Talanusa be ore they made the trip to (igon. %ven as they were mouthing their prayers, they hadalready made up their minds, or perhaps were only aHrming a decision reached earlier, to 5ill the girlsin (igon. They 5new then where they were going. They 5new what they were going to do. $etween thetime they le t the church in Talanusa and until they arrived in (igon U a good thirty minutesE wal5 overa two-5ilometer stretch during which they would have had nothing in mind but their mission U they hadsuHcient time to reBect on the acts they were about to commit, to consult their conscience on the

justiDcation or the crime they were planning, and to desist, i they wanted to, rom carrying out their

deadly purpose.

Coming now to Aolomon TotoyEs e=trajudicial con ession which he as5s us to invalidate, all we have todo is test it against the re!uirements o "rticle IF, Aection ?:, o the / > Constitution. This statementwas obtained rom him on ay ?0, / >. It is there ore covered by -agtoto v. -anguera 1 and othersubse!uent cases 2 holding that this section should be given only prospective operation rom *anuary, / >, when the Constitution was ratiDed.

The said provision categorically states that any person under investigation or the commission o anofense shall have the right to remain silent and to counsel and to be in ormed o such right. Therecord does not show that this re!uirement was observed. 3n the contrary, there merely appears in theopening paragraph o the said con ession the vague statement that+

The aHant has been in ormed o his rights under the Constitution o the )epublic o the 'hilippines, andunder the state o artial #aw, and the nature o the investigation, and without violence, intimidation,orce nor reward the aHant declared as ollows+

=== === ===

This surely does not suggest compliance with the constitutional mandate. The rights which Totoy wasentitled to 5now were not speciDcally communicated to him. $eing in ormed o his rights under theConstitution o the )epublic o the 'hilippines did not mean he was in ormed particularly o his right toremain silent and to be assisted by counsel during his custodial investigation. 2e was not told he didnot have to answer i he did not eel li5e answering. 2e was not told he had a right to be assisted bycounsel. 2e was not given a chance to retain counsel de parte i he wanted to, and neither was heofered the services o counsel de o cio . @ot 5nowing about his right to counsel, he could not have

waived it; and in any case, the waiver, to be valid, would have needed the assistance o counsel underthe ruling announced in People v. 4alit , 3 which is still the prevailing doctrine notwithstanding thereservations o some members o this Court.

In Dne, what we see here is a superDcial observance o the re!uirements o the $ill o )ights through amere recitation by rote o the sacramental advise, which was inade!uate to begin with. There was nosincere efort or desire to apply the guarantees o Aection ?: that could have protected the suspectrom the rash and uncounseled statements he subse!uently made, 5nowing no better. That statementis, o course, not admissible against him.

We end on this note o perple=ity and regret. rom the legal viewpoint, motive need not be establishedas long as the de endants have been directly IdentiDed, as in this case. 5 %ven so, the towns people oargosatubig, mindless o such legal niceties are probably still ammusing over the bloody attac5 onthat pleasant morning in ay thirteen years ago when three young girls perished by the seashore in(igon at the hands o eight intruders.

Was there perhaps a ritual 5illing on that tragic shore There are those who suggest the hand o aanatic religious group animated by a deadly hostility to uslims, including innocent girls and childrenli5e the victims in this case. 6 3thers see hidden meanings in the #atin inscriptions and cryptic designson the shirt )ojas was wearing that ate ul morning when, as one possessed, he slew and slew and slew.7 The severed ears are especially intriguing and could perhaps reveal an esoteric purpose behind thesavage 5nives the 5illers wielded in cold blood against their innocent prey. Atill the !uestion probes andlingers+ Why The answer lies in the warped mind o the stranger rom Tuboran who came with his



magic amulet oil and taught his believing ollowers to pray with him -and 5ill.

"ll the accused-appellants are guilty o the three crimes o murder, !ualiDed by treachery andaggravated by evident premeditation. )ejected as aggravating circumstances are band, because it isalready absorbed by treachery; dwelling, because the tapahan was not part o the victimsE residence;and cruelty, because it has not been shown that the ears o the two victims were severed while theywere still alive.

W2%)% 3)%, as above modiDed, the judgment o conviction is aHrmed and the sentence o death isimposed on all the ..accused-appellants or each o the murders. The civil indemnity, or which they aresolidarily liable, is increased to '>:,:::.:: or the heirs o each o the victims. @o costs.

A3 3)(%)%(.



G.R. No. 153675 A *) 19, 2""7

GO ERNMENT OF HONG (ONG SPECIAL ADMINISTRATI E REGION, % & - y &8P8*)* * D a & & o: J#%&*; , 'etitioner,

vs.

HON. FELI<'ERTO T. OLALIA, JR. a - JUAN ANTONIO MU=O/, )espondents.

( % C I A I 3 @

SANDO AL0GUTIERRE/, J.:

or our resolution is the instant 'etition or Certiorari under )ule 9< o the // )ules o Civil 'rocedure,

as amended, see5ing to nulli y the two 3rders o the )egional Trial Court 7)TC8, $ranch 0, anila7presided by respondent *udge eli=berto T. 3lalia, *r.8 issued in Civil Case @o. //-/< >. These are+ 7 8the 3rder dated (ecember ?:, ?:: allowing *uan "ntonio uVo&, private respondent, to post bail; and7?8 the 3rder dated "pril :, ?::? denying the motion to vacate the said 3rder o (ecember ?:, ?::Dled by the Government o 2ong Mong Apecial "dministrative )egion, represented by the 'hilippine(epartment o *ustice 7(3*8, petitioner. The petition alleges that both 3rders were issued by respondent

judge with grave abuse o discretion amounting to lac5 or e=cess o jurisdiction as there is no provisionin the Constitution granting bail to a potential e=traditee.

The acts are+

3n *anuary >:, //<, the )epublic o the 'hilippines and the then $ritish Crown Colony o 2ong Mongsigned an "greement or the Aurrender o "ccused and Convicted 'ersons. It too5 efect on *une ?:,// .

3n *uly , // , 2ong Mong reverted bac5 to the 'eoplePs )epublic o China and became the 2ong MongApecial "dministrative )egion.

'rivate respondent uVo& was charged be ore the 2ong Mong Court with three 7>8 counts o the ofenseo accepting an advantage as agent, in violation o Aection / 7 8 7a8 o the 'revention o $ribery3rdinance, Cap. ?: o 2ong Mong. 2e also aces seven 7 8 counts o the ofense o conspiracy tode raud, penali&ed by the common law o 2ong Mong. 3n "ugust ?>, // and 3ctober ?<, ///,warrants o arrest were issued against him. I convicted, he aces a jail term o seven 7 8 to ourteen7 68 years or each charge.

3n Aeptember >, ///, the (3* received rom the 2ong Mong (epartment o *ustice a re!uest or the

provisional arrest o private respondent. The (3* then orwarded the re!uest to the @ational $ureau oInvestigation 7@$I8 which, in turn, Dled with the )TC o anila, $ranch / an application or theprovisional arrest o private respondent.

3n Aeptember ?>, ///, the )TC, $ranch /, anila issued an 3rder o "rrest against privaterespondent. That same day, the @$I agents arrested and detained him.

3n 3ctober 6, ///, private respondent Dled with the Court o "ppeals a petition or certiorari,prohibition and mandamus with application or preliminary mandatory injunction andQor writ o habeascorpus !uestioning the validity o the 3rder o "rrest.



3n @ovember /, ///, the Court o "ppeals rendered its (ecision declaring the 3rder o "rrest void.

3n @ovember ?, ///, the (3* Dled with this Court a petition or review on certiorari, doc5eted as G.).@o. 6:<?:, praying that the (ecision o the Court o "ppeals be reversed.

3n (ecember 0, ?:::, this Court rendered a (ecision granting the petition o the (3* and sustainingthe validity o the 3rder o "rrest against private respondent. The (ecision became Dnal and e=ecutoryon "pril :, ?:: .

eanwhile, as early as @ovember ??, ///, petitioner 2ong Mong Apecial "dministrative )egion Dledwith the )TC o anila a petition or the e=tradition o private respondent, doc5eted as Civil Case @o.//-/< >>, ra ed of to $ranch :, presided by *udge )icardo $ernardo, *r. or his part, privaterespondent Dled, * &8 %a ;a% ,- a &*&*o :o a*) which was opposed by petitioner.

" ter hearing, or on 3ctober 0, ?:: , *udge $ernardo, *r. issued an 3rder denying the petition or bail,holding that there is no 'hilippine law granting bail in e=tradition cases and that private respondent is ahigh Bight ris5.

3n 3ctober ??, ?:: , *udge $ernardo, *r. inhibited himsel rom urther hearing Civil Case @o. //-/< >>.It was then ra ed of to $ranch 0 presided by respondent judge.

3n 3ctober >:, ?:: , private respondent Dled a motion or reconsideration o the 3rder denying his

application or bail. This was granted by respondent judge in an 3rder dated (ecember ?:, ?::allowing private respondent to post bail, thus+

In conclusion, this Court will not contribute to accusedPs urther erosion o civil liberties. The petition orbail is granted subject to the ollowing conditions+

. $ail is set at 'hp <:,:::.:: in cash with the condition that accused hereby underta5es that he willappear and answer the issues raised in these proceedings and will at all times hold himsel amenable toorders and processes o this Court, will urther appear or judgment. I accused ails in this underta5ing,the cash bond will be or eited in avor o the government;

?. "ccused must surrender his valid passport to this Court;

>. The (epartment o *ustice is given immediate notice and discretion o Dling its own motion or hold

departure order be ore this Court even in e=tradition proceeding; and6. "ccused is re!uired to report to the government prosecutors handling this case or i they so desire tothe nearest oHce, at any time and day o the wee5; and i they urther desire, mani est be ore thisCourt to re!uire that all the assets o accused, real and personal, be Dled with this Court soonest, withthe condition that i the accused Bees rom his underta5ing, said assets be or eited in avor o thegovernment and that the corresponding lienQannotation be noted therein accordingly.

A3 3)(%)%(.

3n (ecember ? , ?:: , petitioner Dled an urgent motion to vacate the above 3rder, but it was deniedby respondent judge in his 3rder dated "pril :, ?::?.

2ence, the instant petition. 'etitioner alleged that the trial court committed grave abuse o discretion

amounting to lac5 or e=cess o jurisdiction in admitting private respondent to bail; that there is nothingin the Constitution or statutory law providing that a potential e=traditee has a right to bail, the rightbeing limited solely to criminal proceedings.

In his comment on the petition, private respondent maintained that the right to bail guaranteed underthe $ill o )ights e=tends to a prospective e=traditee; and that e=tradition is a harsh process resulting ina prolonged deprivation o onePs liberty.

Aection >, "rticle III o the Constitution provides that the right to bail shall not be impaired, thus+

Aec. >. "ll persons, e=cept those charged with ofenses punishable by reclusion perpetua when



evidence o guilt is strong, shall, be ore conviction, be bailable by suHcient sureties, or be released onrecogni&ance as may be provided by law. The right to bail shall not be impaired even when the privilegeo the writ o habeas corpus is suspended. %=cessive bail shall not be re!uired.

*urisprudence on e=tradition is but in its in ancy in this jurisdiction. @onetheless, this is not the Drst timethat this Court has an occasion to resolve the !uestion o whether a prospective e=traditee may begranted bail.

In 4overnment of 0nited *tates of America v. Hon. 4uillermo 4. Purganan , Presiding 9udge, /2! of-anila, %ranch (, and -ark %. 9imene5, a.k.a. -ario %atacan !respo , this Court, spea5ing through then"ssociate *ustice "rtemio F. 'anganiban, later Chie *ustice, held that the constitutional provision on baildoes not apply to e=tradition proceedings. It is available only in criminal proceedings, thus+

= = =. "s suggested by the use o the word conviction, the constitutional provision on bail !uotedabove, as well as Aection 6, )ule 6 o the )ules o Court, applies only when a person has beenarrested and detained or violation o 'hilippine criminal laws. It does not apply to e=traditionproceedings because e=tradition courts do not render judgments o conviction or ac!uittal.

oreover, the constitutional right to bail Bows rom the presumption o innocence in avor o everyaccused who should not be subjected to the loss o reedom as therea ter he would be entitled toac!uittal, unless his guilt be proved beyond reasonable doubt 7 #e la !amara v. "nage , 6 AC)" , 9,

Aeptember , / , per ernando, 9., later !9 8. It ollows that the constitutional provision on bail willnot apply to a case li5e e=tradition, where the presumption o innocence is not at issue.

The provision in the Constitution stating that the right to bail shall not be impaired even when theprivilege o the writ o habeas corpus is suspended does not detract rom the rule that theconstitutional right to bail is available only in criminal proceedings. It must be noted that the suspensiono the privilege o the writ o habeas corpus Dnds application only to persons judicially charged orrebellion or ofenses inherent in or directly connected with invasion 7Aec. 0, "rt. FIII, Constitution8.2ence, the second sentence in the constitutional provision on bail merely emphasi&es the right to bail incriminal proceedings or the a orementioned ofenses. It cannot be ta5en to mean that the right isavailable even in e=tradition proceedings that are not criminal in nature.

"t Drst glance, the above ruling applies s!uarely to private respondentPs case. 2owever, this Courtcannot ignore the ollowing trends in international law+ 7 8 the growing importance o the individualperson in public international law who, in the ?:th century, has gradually attained global recognition;7?8 the higher value now being given to human rights in the international sphere; 7>8 the correspondingduty o countries to observe these universal human rights in ulDlling their treaty obligations; and 768the duty o this Court to balance the rights o the individual under our undamental law, on one hand,and the law on e=tradition, on the other.

T8 o- & - * # )*; * & a&*o a) )a> *% &8 * a;y )a; - o &8 >o &8 o: &8* -*?*-#a) %o a - &8 %a ;&*&y o: 8# a *$8&% . Alowly, the recognition that the individualperson may properly be a subject o international law is now ta5ing root. The vulnerable doctrine thatthe subjects o international law are limited only to states was dramatically eroded towards the secondhal o the past century. or one, the @uremberg and To5yo trials a ter World War II resulted in theunprecedented spectacle o individual de endants or acts characteri&ed as violations o the laws o war,crimes against peace, and crimes against humanity. )ecently, under the @uremberg principle, Aerbianleaders have been persecuted or war crimes and crimes against humanity committed in the ormer

Jugoslavia. These signiDcant events show that the individual person is now a valid subject o international law.

3n a more positive note, also a ter World War II, both international organi&ations and states gaverecognition and importance to human rights. Thus, on (ecember :, /60, the Knited @ations General"ssembly adopted the Kniversal (eclaration o 2uman )ights in which the right to li e, liberty and allthe other undamental rights o every person were proclaimed. While not a treaty, &8 * ;* ) %



;o &a* - * &8 %a*- D ;)a a&*o a o> ;o$ *@ - a% ;#%&o a *)y * -* $ # o &8% o: &8 * & a&*o a) ;o # *&y . Thus, in -e6o3 v. #irector of Prisons , ? &8*% Co# &, *

$ a &* $ a*) &o a o% ;&*? - o & , 8 )- &8a& # - &8 Co %&*&#&*o , > the principles setorth in that (eclaration are part o the law o the land. In /99, the K@ General "ssembly also adoptedthe International Covenant on Civil and 'olitical )ights which the 'hilippines signed and ratiDed.undamental among the rights enshrined therein are the rights o every person to li e, liberty, and dueprocess.

The 'hilippines, along with the other members o the amily o nations, committed to uphold theundamental human rights as well as value the worth and dignity o every person. This commitment isenshrined in Aection II, "rticle II o our Constitution which provides+ The Atate values the dignity o every human person and guarantees ull respect or human rights. The 'hilippines, there ore, has theresponsibility o protecting and promoting the right o every person to liberty and due process, ensuringthat those detained or arrested can participate in the proceedings be ore a court, to enable it to decidewithout delay on the legality o the detention and order their release i justiDed. In other words, the'hilippine authorities are under obligation to ma5e available to every person under detention suchremedies which sa eguard their undamental right to liberty. These remedies include the right to beadmitted to bail. While this Court in Purganan limited the e=ercise o the right to bail to criminalproceedings, however, in light o the various international treaties giving recognition and protection to

human rights, particularly the right to li e and liberty, a ree=amination o this CourtPs ruling in Purgananis in order.

$irst , we note that the e=ercise o the AtatePs power to deprive an individual o his liberty is notnecessarily limited to criminal proceedings. )espondents in administrative proceedings, such asdeportation and !uarantine, 6 have li5ewise been detained.

*econd , to limit bail to criminal proceedings would be to close our eyes to our jurisprudential history.'hilippine jurisprudence has not limited the e=ercise o the right to bail to criminal proceedings only.

This Court has admitted to bail persons who are not involved in criminal proceedings. In act, bail hasbeen allowed in this jurisdiction to persons in detention during the pendency o administrativeproceedings, ta5ing into cogni&ance the obligation o the 'hilippines under international conventions touphold human rights.

The /:/ case o 0* v. 4o+*ioco < is illustrative. In this case, a Chinese acing deportation or ailure tosecure the necessary certiDcate o registration was granted bail pending his appeal. " ter noting thatthe prospective deportee had committed no crime, the Court opined that To re use him bail is to treathim as a person who has committed the most serious crime 5nown to law; and that while deportationis not a criminal proceeding, some o the machinery used is the machinery o criminal law. Thus, theprovisions relating to bail was applied to deportation proceedings.

In -e6o3 v. #irector of Prisons 9 and !hirsko3 v. !ommission of &mmigration , this Court ruled that oreignnationals against whom no ormal criminal charges have been Dled may be released on bail pending theDnality o an order o deportation. "s previously stated, the Court in -e6o3 relied upon the Kniversaldeclaration o 2uman )ights in sustaining the detaineePs right to bail.

I bail can be granted in deportation cases, we see no justiDcation why it should not also be allowed ine=tradition cases. #i5ewise, considering that the Kniversal (eclaration o 2uman )ights applies todeportation cases, there is no reason why it cannot be invo5ed in e=tradition cases. " ter all, both areadministrative proceedings where the innocence or guilt o the person detained is not in issue.

Clearly, the right o a prospective e=traditee to apply or bail in this jurisdiction must be viewed in thelight o the various treaty obligations o the 'hilippines concerning respect or the promotion andprotection o human rights. Knder these treaties, the presumption lies in avor o human liberty. Thus,the 'hilippines should see to it that the right to liberty o every individual is not impaired.

Aection ?7a8 o 'residential (ecree 7'.(.8 @o. :9/ 7The 'hilippine %=tradition #aw8 deDnes e=tradition



as the removal o an accused rom the 'hilippines with the object o placing him at the disposal o oreign authorities to enable the re!uesting state or government to hold him in connection with anycriminal investigation directed against him or the e=ecution o a penalty imposed on him under thepenal or criminal law o the re!uesting state or government.

%=tradition has thus been characteri&ed as the right o a oreign power, created by treaty, to demandthe surrender o one accused or convicted o a crime within its territorial jurisdiction, and the correlativeduty o the other state to surrender him to the demanding state. 0 It is not a criminal proceeding. / %ven i the potential e=traditee is a criminal, an e=tradition proceeding is not by its nature criminal, or it is notpunishment or a crime, even though such punishment may ollow e=tradition. : It is sui generis, tracingits e=istence wholly to treaty obligations between diferent nations. I& *% o& a & *a) &o - & *&8 $#*)& o * o; ; o: &8 o& &*a) & a-*& . ? @or is it a ull-blown civil action, but one thatis merely administrative * ;8a a;& . > Its object is to prevent the escape o a person accused orconvicted o a crime and to secure his return to the state rom which he Bed, or the purpose o trial orpunishment. 6

$ut while e=tradition is not a criminal proceeding, it is characteri&ed by the ollowing+ 7a8 it entails adeprivation o liberty on the part o the potential e=traditee and 7b8 &8 a % )oy - &o a&&a*&8 # o% o: & a-*&*o *% a)%o +&8 a;8* y o: ; * * a) )a>.+ This is shown by Aection 9 o '.(. @o. :9/ 7The 'hilippine %=tradition #aw8 which mandates the * -*a& a %& a -& o a y - & &*o o: &8 a;;#% - i such will best serve the interest o justice. We urther notethat Aection ?: allows the re!uesting state in case o urgency to as5 or the o?*%*o a) a %& o: &8 a;;#% -, -* $ ; * & o: &8 B# %& :o & a-*&*o and that release rom provisionalarrest shall not prejudice re-arrest and e=tradition o the accused i a re!uest or e=tradition is receivedsubse!uently.

3bviously, an e=tradition proceeding, while ostensibly administrative, bears all earmar5s o a criminalprocess. A o& &*a) & a-*& ay %# ;& - &o a %&, &o a o)o $ - %& a* & o: )* &y, a - :o ; - &o & a %: &o &8 - a -* $ %&a& :o))o>* $ &8 o; -* $%. Temporarydetention may be a necessary step in the process o e=tradition, but the length o time o thedetention should be reasonable.

)ecords show that private respondent was arrested on Aeptember ?>, ///, and remained incarcerateduntil (ecember ?:, ?:: , when the trial court ordered his admission to bail. I o&8 >o -%, 8 8a- - &a* - :o o? &>o 2 y a % >*&8o#& 8a?* $ ;o ?*;& - o: a y ; * . $y any

standard, such an e=tended period o detention is a serious deprivation o his undamental right toliberty. In act, it was this prolonged deprivation o liberty which prompted the e=tradition court to granthim bail.

While our e=tradition law does not provide or the grant o bail to an e=traditee, however, there is noprovision prohibiting him or her rom Dling a motion or bail, a right to due process under theConstitution.

The applicable standard o due process, however, should not be the same as that in criminalproceedings. In the latter, the standard o due process is premised on the presumption o innocence o

the accused. "s Purganan correctly points out, it is rom this major premise that the ancillarypresumption in avor o admitting to bail arises. $earing in mind the purpose o e=tradition proceedings,the premise behind the issuance o the arrest warrant and the temporary detention is the possibilityo Bight o the potential e=traditee. This is based on the assumption that such e=traditee is a ugitiverom justice. < Given the oregoing, the prospective e=traditee thus bears the onus probandi o showingthat he or she is not a Bight ris5 and should be granted bail.

The time-honored principle o pacta sunt servanda demands that the 'hilippines honor its obligationsunder the %=tradition Treaty it entered into with the 2ong Mong Apecial "dministrative )egion. ailure tocomply with these obligations is a setbac5 in our oreign relations and de eats the purpose o



e=tradition. 2owever, it does not necessarily mean that in 5eeping with its treaty obligations, the'hilippines should diminish a potential e=traditeePs rights to li e, liberty, and due process. ore so,where these rights are guaranteed, not only by our Constitution, but also by international conventions,to which the 'hilippines is a party. We should not, there ore, deprive an e=traditee o his right to applyor bail, provided that a certain standard or the grant is satis actorily met.

"n e=tradition proceeding being sui generis , the standard o proo re!uired in granting or denying bailcan neither be the proo beyond reasonable doubt in criminal cases nor the standard o proo o preponderance o evidence in civil cases. While administrative in character, the standard o substantialevidence used in administrative cases cannot li5ewise apply given the object o e=tradition law which isto prevent the prospective e=traditee rom Beeing our jurisdiction. In his Aeparate 3pinion in Purganan ,then "ssociate *ustice, now Chie *ustice )eynato A. 'uno, proposed that a new standard which hetermed ;) a a - ;o ?* ;* $ ?*- ; %8o#)- #% - * $ a &* $ a*) * & a-*&*o ;a% %."ccording to him, this standard should be lower than proo beyond reasonable doubt but higher thanpreponderance o evidence. The potential e=traditee must prove by clear and convincing evidencethat he is not a Bight ris5 and will abide with all the orders and processes o the e=tradition court.

In this case, there is no showing that private respondent presented evidence to show that he is not a*$8& *% . Conse!uently, this case should be remanded to the trial court to determine whether private

respondent may be granted bail on the basis o clear and convincing evidence.

HEREFORE , we DISMISS the petition. This case is REMANDED to the trial court to determinewhether private respondent is entitled to bail on the basis o clear and convincing evidence. I not, thetrial court should order the cancellation o his bail bond and his immediate detention; and therea ter,conduct the e=tradition proceedings with dispatch.

SO ORDERED.

G.R. No. 1977!! F #a y 29, 2"12

RODEL LU/ y ONG, 'etitioner,



vs.

PEOPLE OF THE PHILIPPINES, 1 )espondent.

( % C I A I 3 @

SERENO, J.:

This is a 'etition or )eview on Certiorari under )ule 6< see5ing to set aside the Court o "ppeals 7C"8

(ecision in C"-G.). C) @o. >?< 9 dated 0 ebruary ?:?

and )esolution dated 0 *uly ?: .Atatement o the acts and o the Case

The acts, as ound by the )egional Trial Court 7)TC8, which sustained the version o the prosecution, areas ollows+

'3? %mmanuel #. "lte&a, who was then assigned at the Aub-Atation o the @aga City 'olice Atation asa traHc en orcer, substantially testiDed that on arch :, ?::> at around >+:: oPcloc5 in the morning,he saw the accused, who was coming rom the direction o 'anganiban (rive and going to (iversion)oad, @aga City, driving a motorcycle without a helmet; that this prompted him to Bag down theaccused or violating a municipal ordinance which re!uires all motorcycle drivers to wear helmet 7sic8while driving said motor vehicle; that he invited the accused to come inside their sub-station since theplace where he Bagged down the accused is almost in ront o the said sub-station; that while he andA'3 )ay ord $rillante were issuing a citation tic5et or violation o municipal ordinance, he noticed thatthe accused was uneasy and 5ept on getting something rom his jac5et; that he was alerted and so, hetold the accused to ta5e out the contents o the poc5et o his jac5et as the latter may have a weaponinside it; that the accused obliged and slowly put out the contents o the poc5et o his jac5et which wasa nic5el-li5e tin or metal container about two 7?8 to three 7>8 inches in si&e, including two 7?8 cellphones,one 7 8 pair o scissors and one 7 8 Awiss 5ni e; that upon seeing the said container, he as5ed theaccused to open it; that a ter the accused opened the container, he noticed a cartoon cover andsomething beneath it; and that upon his instruction, the accused spilled out the contents o thecontainer on the table which turned out to be our 768 plastic sachets, the two 7?8 o which were emptywhile the other two 7?8 contained suspected shabu . >

"rraigned on ? *uly ?::>, petitioner, assisted by counsel, entered a plea o @ot guilty to the charge o

illegal possession o dangerous drugs. 'retrial was terminated on ?6 Aeptember ?::>, a ter which, trialensued.

(uring trial, 'olice 3Hcer > 7'3>8 %mmanuel "lte&a and a orensic chemist testiDed or the prosecution.3n the other hand, petitioner testiDed or himsel and raised the de ense o planting o evidence ande=tortion.

In its / ebruary ?::/ (ecision, 6 the )TC convicted petitioner o illegal possession o dangerous drugs < committed on : arch ?::>. It ound the prosecution evidence suHcient to show that he had beenlaw ully arrested or a traHc violation and then subjected to a valid search, which led to the discoveryon his person o two plastic sachets later ound to contain shabu. The )TC also ound his de ense orame-up and e=tortion to be wea5, sel -serving and unsubstantiated. The dispositive portion o its(ecision held+

W2%)% 3)%, judgment is hereby rendered, Dnding accused )3(%# #K4 y 3@G GKI#TJ beyondreasonable doubt or the crime o violation o Aection , "rticle II o )epublic "ct @o. / 9< andsentencing him to sufer the indeterminate penalty o imprisonment ranging rom twelve 7 ?8 years and7 8 day, as minimum, to thirteen 7 >8 years, as ma=imum, and to pay a Dne o Three 2undred Thousand'esos 7' >::,:::.::8.

The subject shabu is hereby conDscated or turn over to the 'hilippine (rug %n orcement "gency or itsproper disposition and destruction in accordance with law.

A3 3)(%)%(. 9



Kpon review, the C" aHrmed the )TCPs (ecision.

3n ? Aeptember ?: , petitioner Dled under )ule 6< the instant 'etition or )eview on Certiorari dated Aeptember ?: . In a )esolution dated ? 3ctober ?: , this Court re!uired respondent to Dle acomment on the 'etition. 3n 6 *anuary ?: ?, the latter Dled its Comment dated > *anuary ?: ?.

'etitioner raised the ollowing grounds in support o his 'etition+

7i8 T2% A%")C2 "@( A%I4K)% 3 T2% "##%G%( AK$*%CT A2"$K IA I@F"#I(.

7ii8 T2% ')%AK 'TI3@ 3 )%GK#")ITJ I@ T2% '%) 3) "@C% 3 (KTJ 3 T2% '3#IC% 3 IC%)C"@@3T $% )%#I%( K'3@ I@ T2IA C"A%.

7iii8 T2% I@T%G)ITJ "@( %FI(%@TI")J F"#K% 3 T2% "##%G%( AK$*%CT A'%CI %@ 2"A $%%@C3 ')3 IA%(.

7iv8 T2% GKI#T 3 T2% "CCKA%(-'%TITI3@%) W"A @3T ')3F%@ $%J3@( T2% )%"A3@"$#% (3K$T7sic8.

'etitioner claims that there was no law ul search and sei&ure, because there was no law ul arrest. 2eclaims that the Dnding that there was a law ul arrest was erroneous, since he was not even issued acitation tic5et or charged with violation o the city ordinance. %ven assuming there was a valid arrest,he claims that he had never consented to the search conducted upon him.

3n the other hand, Dnding that petitioner had been law ully arrested, the )TC held thus+

It is beyond dispute that the accused was Bagged down and apprehended in this case by 'olice 3Hcers"lte&a and $rillante or violation o City 3rdinance @o. /0-: ?, an ordinance re!uiring the use o crashhelmet by motorcycle drivers and riders thereon in the City o @aga and prescribing penalties orviolation thereo . The accused himsel admitted that he was not wearing a helmet at the time when hewas Bagged down by the said police oHcers, albeit he had a helmet in his possession. 3bviously, thereis legal basis on the part o the apprehending oHcers to Bag down and arrest the accused because thelatter was actually committing a crime in their presence, that is, a violation o City 3rdinance @o. /0-: ?. In other words, the accused, being caught in :agrante delicto violating the said 3rdinance, hecould there ore be law ully stopped or arrested by the apprehending oHcers. = = =. 0

We Dnd the 'etition to be impressed with merit, but not or the particular reasons alleged. In criminalcases, an appeal throws the entire case wide open or review and the reviewing tribunal can correcterrors, though unassigned in the appealed judgment, or even reverse the trial courtPs decision based ongrounds other than those that the parties raised as errors. /

irst, there was no valid arrest o petitioner. When he was Bagged down or committing a traHcviolation, he was not, ipso acto and solely or this reason, arrested.

"rrest is the ta5ing o a person into custody in order that he or she may be bound to answer or thecommission o an ofense. : It is efected by an actual restraint o the person to be arrested or by thatpersonPs voluntary submission to the custody o the one ma5ing the arrest. @either the application oactual orce, manual touching o the body, or physical restraint, nor a ormal declaration o arrest, isre!uired. It is enough that there be an intention on the part o one o the parties to arrest the other, and

that there be an intent on the part o the other to submit, under the belie and impression thatsubmission is necessary.

Knder ).". 6 >9, or the #and Transportation and TraHc Code, the general procedure or dealing with atraHc violation is not the arrest o the ofender, but the conDscation o the driverPs license o the latter+

A%CTI3@ ?/. ConDscation o (riverEs #icense. U #aw en orcement and peace oHcers o other agenciesduly deputi&ed by the (irector shall, in apprehending a driver or any violation o this "ct or anyregulations issued pursuant thereto, or o local traHc rules and regulations not contrary to anyprovisions o this "ct, conDscate the license o the driver concerned and issue a receipt prescribed andissued by the $ureau there or which shall authori&e the driver to operate a motor vehicle or a period



not e=ceeding seventy-two hours rom the time and date o issue o said receipt. The period so D=ed inthe receipt shall not be e=tended, and shall become invalid therea ter. ailure o the driver to settle hiscase within D teen days rom the date o apprehension will be a ground or the suspension andQorrevocation o his license.

Aimilarly, the 'hilippine @ational 'olice 7'@'8 3perations anual ? provides the ollowing procedure orBagging down vehicles during the conduct o chec5points+

A%CTI3@ . 'rocedure in lagging (own or "ccosting Fehicles While in obile Car. This rule is a generalconcept and will not apply in hot pursuit operations. The mobile car crew shall underta5e the ollowing,when applicable+ = = =

m. I it concerns traHc violations, immediately issue a TraHc Citation Tic5et 7TCT8 or TraHc Fiolation)eport 7TF)8. @ever indulge in prolonged, unnecessary conversation or argument with the driver or anyo the vehiclePs occupants;

"t the time that he was waiting or '3> "lte&a to write his citation tic5et, petitioner could not be said tohave been under arrest. There was no intention on the part o '3> "lte&a to arrest him, deprive him o his liberty, or ta5e him into custody. 'rior to the issuance o the tic5et, the period during whichpetitioner was at the police station may be characteri&ed merely as waiting time. In act, as ound bythe trial court, '3> "lte&a himsel testiDed that the only reason they went to the police sub-station was

that petitioner had been Bagged down almost in ront o that place. 2ence, it was only or the sa5e oconvenience that they were waiting there. There was no intention to ta5e petitioner into custody.

In $er5emer v. cCarty, > the Knited Atates 7K.A.8 Aupreme Court discussed at length whether theroadside !uestioning o a motorist detained pursuant to a routine traHc stop should be consideredcustodial interrogation. The Court held that, such !uestioning does not all under custodialinterrogation, nor can it be considered a ormal arrest, by virtue o the nature o the !uestioning, thee=pectations o the motorist and the oHcer, and the length o time the procedure is conducted. It ruledas ollows+

It must be ac5nowledged at the outset that a traHc stop signiDcantly curtails the reedom o action othe driver and the passengers, i any, o the detained vehicle. Knder the law o most Atates, it is a crimeeither to ignore a policemanPs signal to stop onePs car or, once having stopped, to drive away withoutpermission. = = =

2owever, we decline to accord talismanic power to the phrase in the iranda opinion emphasi&ed byrespondent. idelity to the doctrine announced in iranda re!uires that it be en orced strictly, but onlyin those types o situations in which the concerns that powered the decision are implicated. Thus, wemust decide whether a traHc stop e=erts upon a detained person pressures that suHciently impair hisree e=ercise o his privilege against sel -incrimination to re!uire that he be warned o his constitutionalrights.

Two eatures o an ordinary traHc stop mitigate the danger that a person !uestioned will be induced tospea5 where he would not otherwise do so reely, iranda v. "ri&ona, >06 K. A., at 69 . irst, detentiono a motorist pursuant to a traHc stop is presumptively temporary and brie . The vast majority oroadside detentions last only a ew minutes. " motoristPs e=pectations, when he sees a policemanPslight Bashing behind him, are that he will be obliged to spend a short period o time answering!uestions and waiting while the oHcer chec5s his license and registration, that he may then be given acitation, but that in the end he most li5ely will be allowed to continue on his way. In this respect,!uestioning incident to an ordinary traHc stop is !uite diferent rom stationhouse interrogation, whichre!uently is prolonged, and in which the detainee o ten is aware that !uestioning will continue until heprovides his interrogators the answers they see5. Aee id., at 6< .

Aecond, circumstances associated with the typical traHc stop are not such that the motorist eelscompletely at the mercy o the police. To be sure, the aura o authority surrounding an armed,



uni ormed oHcer and the 5nowledge that the oHcer has some discretion in deciding whether to issue acitation, in combination, e=ert some pressure on the detainee to respond to !uestions. $ut otheraspects o the situation substantially ofset these orces. 'erhaps most importantly, the typical traHcstop is public, at least to some degree. = = =

In both o these respects, the usual traHc stop is more analogous to a so-called Terry stop, see Terry v.3hio, >/? K. A. 7 /908, than to a ormal arrest. = = = The comparatively nonthreatening character odetentions o this sort e=plains the absence o any suggestion in our opinions that Terry stops aresubject to the dictates o iranda. The similarly noncoercive aspect o ordinary traHc stops prompts usto hold that persons temporarily detained pursuant to such stops are not in custody or the purposeso iranda.

= = = = = = = = =

We are conDdent that the state o afairs projected by respondent will not come to pass. It is settled thatthe sa eguards prescribed by iranda become applicable as soon as a suspectPs reedom o action iscurtailed to a degree associated with ormal arrest. Cali ornia v. $eheler, 69> K. A. ? , ?< 7 /0>87per curiam8. I a motorist who has been detained pursuant to a traHc stop therea ter is subjected totreatment that renders him in custody or practical purposes, he will be entitled to the ull panoply oprotections prescribed by iranda. Aee 3regon v. athiason, 6?/ K. A. 6/?, 6/< 7 / 8 7per curiam8.

7%mphasis supplied.8 The K.A. Court in $er5emer thus ruled that, since the motorist therein was only subjected to modest!uestions while still at the scene o the traHc stop, he was not at that moment placed under custody7such that he should have been apprised o his iranda rights8, and neither can treatment o this sortbe airly characteri&ed as the unctional e!uivalent o a ormal arrest. Aimilarly, neither can petitionerhere be considered under arrest at the time that his traHc citation was being made.

It also appears that, according to City 3rdinance @o. /0-: ?, which was violated by petitioner, theailure to wear a crash helmet while riding a motorcycle is penali&ed by a Dne only. Knder the )ules oCourt, a warrant o arrest need not be issued i the in ormation or charge was Dled or an ofensepenali&ed by a Dne only. It may be stated as a corollary that neither can a warrantless arrest be madeor such an ofense.

This ruling does not imply that there can be no arrest or a traHc violation. Certainly, when there is anintent on the part o the police oHcer to deprive the motorist o liberty, or to ta5e the latter intocustody, the ormer may be deemed to have arrested the motorist. In this case, however, the oHcerPsissuance 7or intent to issue8 a traHc citation tic5et negates the possibility o an arrest or the sameviolation.

%ven i one were to wor5 under the assumption that petitioner was deemed arrested upon beingBagged down or a traHc violation and while awaiting the issuance o his tic5et, then the re!uirementsor a valid arrest were not complied with.

This Court has held that at the time a person is arrested, it shall be the duty o the arresting oHcer toin orm the latter o the reason or the arrest and must show that person the warrant o arrest, i any.'ersons shall be in ormed o their constitutional rights to remain silent and to counsel, and that anystatement they might ma5e could be used against them. 6 It may also be noted that in this case, theseconstitutional re!uirements were complied with by the police oHcers only a ter petitioner had beenarrested or illegal possession o dangerous drugs.

In $er5emer, the K.A. Court also noted that the iranda warnings must also be given to a personapprehended due to a traHc violation+

The purposes o the sa eguards prescribed by iranda are to ensure that the police do not coerce ortric5 captive suspects into con essing, to relieve the inherently compelling pressures generated bythe custodial setting itsel , which wor5 to undermine the individualPs will to resist, and as much as



possible to ree courts rom the tas5 o scrutini&ing individual cases to try to determine, a ter the act,whether particular con essions were voluntary. Those purposes are implicated as much by in-custody!uestioning o persons suspected o misdemeanors as they are by !uestioning o persons suspected oelonies.

I it were true that petitioner was already deemed arrested when he was Bagged down or a traHcviolation and while he waiting or his tic5et, then there would have been no need or him to be arrestedor a second timeUa ter the police oHcers allegedly discovered the drugsUas he was already in theircustody.

Aecond, there being no valid arrest, the warrantless search that resulted rom it was li5ewise illegal.

The ollowing are the instances when a warrantless search is allowed+ 7i8 a warrantless search incidentalto a law ul arrest; 7ii8 search o evidence in plain view; 7iii8 search o a moving vehicle; 7iv8 consentedwarrantless search; 7v8 customs search; 7vi8 a stop and ris5 search; and 7vii8 e=igent and emergencycircumstances. < @one o the above-mentioned instances, especially a search incident to a law ul arrest,are applicable to this case.

It must be noted that the evidence sei&ed, although alleged to be inadvertently discovered, was not inplain view. It was actually concealed inside a metal container inside petitionerPs poc5et. Clearly, theevidence was not immediately apparent. 9

@either was there a consented warrantless search. Consent to a search is not to be lightly in erred, butshown by clear and convincing evidence. It must be voluntary in order to validate an otherwise illegalsearch; that is, the consent must be une!uivocal, speciDc, intelligently given and uncontaminated byany duress or coercion. While the prosecution claims that petitioner acceded to the instruction o '3>"lte&a, this alleged accession does not suHce to prove valid and intelligent consent. In act, the )TCound that petitioner was merely told to ta5e out the contents o his poc5et. 0

Whether consent to the search was in act voluntary is a !uestion o act to be determined rom thetotality o all the circumstances. )elevant to this determination are the ollowing characteristics o theperson giving consent and the environment in which consent is given+ 7 8 the age o the de endant; 7?8whether the de endant was in a public or a secluded location; 7>8 whether the de endant objected to thesearch or passively loo5ed on; 768 the education and intelligence o the de endant; 7<8 the presence ocoercive police procedures; 798 the de endantPs belie that no incriminating evidence would be ound;7 8 the nature o the police !uestioning; 708 the environment in which the !uestioning too5 place; and7/8 the possibly vulnerable subjective state o the person consenting. It is the Atate that has the burdeno proving, by clear and positive testimony, that the necessary consent was obtained, and was reelyand voluntarily given. / In this case, all that was alleged was that petitioner was alone at the policestation at three in the morning, accompanied by several police oHcers. These circumstances weighheavily against a Dnding o valid consent to a warrantless search.

@either does the search !uali y under the stop and ris5 rule. While the rule normally applies when apolice oHcer observes suspicious or unusual conduct, which may lead him to believe that a criminal actmay be a oot, the stop and ris5 is merely a limited protective search o outer clothing or weapons. ?:

In Mnowles v. Iowa, ? the K.A. Aupreme Court held that when a police oHcer stops a person or speedingand correspondingly issues a citation instead o arresting the latter, this procedure does not authori&ethe oHcer to conduct a ull search o the car. The Court therein held that there was no justiDcation or aull-blown search when the oHcer does not arrest the motorist. Instead, police oHcers may onlyconduct minimal intrusions, such as ordering the motorist to alight rom the car or doing a patdown+

In )obinson, supra, we noted the two historical rationales or the search incident to arrest e=ception+7 8 the need to disarm the suspect in order to ta5e him into custody, and 7?8 the need to preserveevidence or later use at trial. = = = $ut neither o these underlying rationales or the search incident toarrest e=ception is suHcient to justi y the search in the present case.



We have recogni&ed that the Drst rationaleUoHcer sa etyUis Sboth legitimate and weighty,P = = = Thethreat to oHcer sa ety rom issuing a traHc citation, however, is a good deal less than in the case o acustodial arrest. In )obinson, we stated that a custodial arrest involves danger to an oHcer because o the e=tended e=posure which ollows the ta5ing o a suspect into custody and transporting him to thepolice station. 6 6 K. A., at ?>6-?><. We recogni&ed that NtOhe danger to the police oHcer Bows romthe act o the arrest, and its attendant pro=imity, stress, and uncertainty, and not rom the grounds orarrest. Id., at ?>6, n. <. " routine traHc stop, on the other hand, is a relatively brie encounter and is

more analogous to a so-called STerry stopP . . . than to a ormal arrest. $er5emer v. cCarty, 690 K. A.6?:, 6>/ 7 /068. Aee also Cupp v. urphy, 6 ? K. A. ?/ , ?/9 7 / >8 7 Where there is no ormalarrest . . . a person might well be less hostile to the police and less li5ely to ta5e conspicuous,immediate steps to destroy incriminating evidence 8.

This is not to say that the concern or oHcer sa ety is absent in the case o a routine traHcstop. 7; phi7 It plainly is not. Aee imms, supra, at :; Wilson, supra, at 6 >-6 6. $ut while theconcern or oHcer sa ety in this conte=t may justi y the minimal additional intrusion o ordering adriver and passengers out o the car, it does not by itsel justi y the o ten considerably greater intrusionattending a ull Deldtype search. %ven without the search authority Iowa urges, oHcers have other,independent bases to search or weapons and protect themselves rom danger. or e=ample, they mayorder out o a vehicle both the driver, imms, supra, at , and any passengers, Wilson, supra, at 6 6;

per orm a patdown o a driver and any passengers upon reasonable suspicion that they may bearmed and dangerous, Terry v. 3hio, >/? K. A. 7 /908; conduct a Terry patdown o the passengercompartment o a vehicle upon reasonable suspicion that an occupant is dangerous and may gainimmediate control o a weapon, ichigan v. #ong, 69> K. A. :>?, :6/ 7 /0>8; and even conduct a ullsearch o the passenger compartment, including any containers therein, pursuant to a custodial arrest,@ew Jor5 v. $elton, 6<> K. A. 6<6, 69: 7 /0 8.

@or has Iowa shown the second justiDcation or the authority to search incident to arrestUthe need todiscover and preserve evidence. 3nce Mnowles was stopped or speeding and issued a citation, all theevidence necessary to prosecute that ofense had been obtained. @o urther evidence o e=cessivespeed was going to be ound either on the person o the ofender or in the passenger compartment othe car. 7%mphasis supplied.8

The oregoing considered, petitioner must be ac!uitted. While he may have ailed to object to theillegality o his arrest at the earliest opportunity, a waiver o an illegal warrantless arrest does not,however, mean a waiver o the inadmissibility o evidence sei&ed during the illegal warrantless arrest. ??

The Constitution guarantees the right o the people to be secure in their persons, houses, papers andefects against unreasonable searches and sei&ures. ?> "ny evidence obtained in violation o said rightshall be inadmissible or any purpose in any proceeding. While the power to search and sei&e may attimes be necessary to the public wel are, still it must be e=ercised and the law implemented withoutcontravening the constitutional rights o citi&ens, or the en orcement o no statute is o suHcientimportance to justi y indiference to the basic principles o government. ?6

The subject items sei&ed during the illegal arrest are inadmissible. ?< The drugs are the very corpusdelicti o the crime o illegal possession o dangerous drugs. Thus, their inadmissibility precludesconviction and calls or the ac!uittal o the accused. ?9

W2%)% 3)%, the 'etition is G)"@T%(. The 0 ebruary ?: (ecision o the Court o "ppeals in C"-G.). C) @o. >?< 9 aHrming the judgment o conviction dated / ebruary ?::/ o the )egional TrialCourt, <th *udicial )egion, @aga City, $ranch ? , in Criminal Case @o. )TC ?::>-::0 , is hereby)%F%)A%( and A%T "AI(%. 'etitioner )odel #u& y 3ng is hereby "C1KITT%( and ordered immediatelyreleased rom detention, unless his continued conDnement is warranted by some other cause or ground.

A3 3)(%)%(.



G.R. No. L02!"9 Ma ;8 22, 195"

THE PEOPLE OF THE PHILIPPINES, plaintif-appellee,



vs.

FRISCO HOLGADO, de endant-appellant.

-auricio !arlos for appellant.Assistant *olicitor 4eneral -anuel P. %arcelona and *olicitor $eli< 8.-akasiar for appellee.

MORAN, C.J. 4

"ppellant risco 2olgado was charged in the court o irst Instance o )omblon with slight illegaldetention because according to the in ormation, being a private person, he did eloniously and without justiDable motive, 5idnap and detain one "rtemia abreag in the house o "ntero 2olgado or abouteight hours thereby depriving said "rtemia abreag o her personal liberty. 3n may 0, /60, the dayset or the trial, the trial court proceeded as ollows+

Court+

Is this the case ready or trial

iscal+

I am ready, your honor.

Court+ U to the accused.

1. do you have an attorney or are you going to plead guilty U ". I have no lawyer and I will pleadguilty.

Court+

"rraign the accused.

@ote+

Interpreter read the in ormation to the accused in the local dialect a ter which he was as5ed this!uestion.

1. What do you plead U ". I plead guilty, but I was instructed by one r. 3campo.

1. Who is that r. 3campo, what is his complete name U ". r. @umeriano 3campo.

The provincial Dscal is hereby ordered to investigate that man.

iscal+

I have investigated this case and ound out that this 3campo has nothing to do with the case and Iound no evidence against this 3campo.

Court+

Aentenced reserved.

Two days later, or on ay :, /60, the trial court rendered the ollowing judgment+

NCriminal Case @o. F- 0O

T2% '%3'#% 3 T2% '2I#I''I@%A, plaintif-appellee, vs. )IAC3 23#G"(3 de endant-appellant.A#IG2T I##%G"# (%T%@TI3@

A%@T%@C%

The accused, risco 2olgado, stands charged with the crime o 5idnapping and serious illegal detentionin the ollowing

I@ 3) "TI3@

That on or about (ecember , /6 , in the municipality o Concepcion, 'rovince o )omblon,'hilippines and within the jurisdiction o this 2onorable Court, the said accused being a private



individual, did then and there wil ully, unlaw ully and eloniously, and without justiDable motive, 5idnapand detain one "rtemia abreag in the house o "ntero 2olgado or about 0 hours thereby deprivingsaid "rtemia abreag o her personal liberty.

Contrary to law.

This case is called or trial on ay 0, /60. Kpon arraignment the accused pleaded guilty to thein ormation above described.

The ofense committed by the accused is 5idnapping and serious illegal detention as deDned by article?9 o the )evised 'enal Code as amended by section ? o )epublic "ct @o. 0 and punished byreclusion temporal in it minimum period to death. "pplying indeterminate sentence law the penaltyshall be prision mayor in its ma=imum degree to reclusion temporal in the medium degree as minimum,or ten years 7 :8 and one 7 8 day o prision mayor to twenty 7?:8 years, with the accessory penaltiesprovided or by law, with costs. The accused is entitled to one-hal o his preventive imprisonment.

It must be noticed that in the caption o the case as it appears in the judgment above !uoted, theofense charged is named A#IG2T I##%G"# (%T%@TI3@ while in the body o the judgment i is said thatthe accused stands charged with the crime o 5idnapping and serious illegal detention. In theormation Dled by the provincial Dscal it is said that he accuses risco 2olgado o the crime o slightillegal detention. The acts alleged in said in ormation are not clear as to whether the ofense is named

therein or capital ofense o 5idnapping and serious illegal detention as ound by the trial judge in his judgment. Aince the accused-appellant pleaded guilty and no evidence appears to have been presentedby either party, the trial judge must have deduced the capital ofense rom the acts pleaded in thein ormation.

Knder the circumstances, particularly the !ualiDed plea given by the accused who was unaided bycounsel, it was not prudent, to say the least, or the trial court to render such a serious judgmentDnding the accused guilty o a capital ofense, and imposing upon him such a heavy penalty as tenyears and one day o prision mayor to twenty years, without absolute any evidence to determine andclari y the true acts o the case.

The proceedings in the trial court are irregular rom the beginning. It is e=pressly provided in our ruleso Court, )ule ?, section >, that+

I the de endant appears without attorney, he must be in ormed by the court that it is his right to haveattorney being arraigned., and must be as5ed i he desires the aid o attorney, the Court must assignattorney de o cio to de end him. " reasonable time must be allowed or procuring attorney.

Knder this provision, when a de endant appears without attorney, the court has our important duties tocomply with+ U It must in orm the de endant that it is his right to have attorney be ore beingarraigned; ? U " ter giving him such in ormation the court must as5 him i he desires the aid o anattorney; > U I he desires and is unable to employ attorney, the court must assign attorney de o cio tode end him; and 6 U I the accused desires to procure an attorney o his own the court must grant hima reasonable time there or.

@ot one o these duties had been complied with by the trial court. The record discloses that said court

did not in orm the accused o his right to have an attorney nor did it as5 him i he desired the aid oone. The trial court ailed to in!uire whether or not the accused was to employ an attorney, to grant himreasonable time to procure or assign an attorney de o cio . The !uestion as5ed by the court to theaccused was (o you have an attorney or are you going to plead guilty @ot only did such a !uestionail to in orm the accused that it was his right to have an attorney be ore arraignment, but, what isworse, the !uestion was so ramed that it could have been construed by the accused as a suggestionrom the court that he plead guilt i he had no attorney. "nd this is a denial o air hearing in violation othe due process clause contained in our Constitution.

3ne o the great principles o justice guaranteed by our Constitution is that no person shall be held to



answer or a criminal ofense without due process o law , and that all accused shall enjoy the right tobe heard by himsel and counsel. In criminal cases there can be no air hearing unless the accused begiven the opportunity to be heard by counsel. The right to be heard would be o little avail i it does notinclude the right to be heard by counsel. %ven the most intelligent or educated man may have no s5illin the science o the law, particularly in the rules o procedure, and, without counsel, he may beconvicted not because he is guilty but because he does not 5now how to establish his innocence. "ndthis can happen more easily to persons who are ignorant or uneducated. It is or this reason that the

right to be assisted by counsel is deemed so important that it has become a constitutional right and it isso implemented that under our rules o procedure it is not enough or the Court to apprise an accusedo his right to have an attorney, it is not enough to as5 him whether he desires the aid o an attorney,but it is essential that the court should assign one de o cio i he so desires and he is poor grant him areasonable time to procure an attorney o his own.

It must be added, in the instant case, that the accused who was unaided by counsel pleaded guilty butwith the ollowing !ualiDcation+ but I was instructed by one r. 3campo. The trial court ailed toin!uire as to the true import o this !ualiDcation. the record does not show whether the supposedinstructions was real and whether it had re erence to the commission o the ofense or to the ma5ing othe plea guilty. @o investigation was opened by the court on this matter in the presence o the accusedand there is now no way o determining whether the supposed instruction is a good de ense or may

vitiate the voluntariness o the con ession. "pparently the court became satisDed with the DscalEsin ormation that he had investigated r. 3campo and ound that the same had nothing to do with thiscase. Auch attitude o the court was wrong or the simple reason that a mere statement o the Dscalwas not suHcient to overcome a !ualiDed plea o the accused. $ut above all, the court should haveseen to it that the accused be assisted by counsel specially because o the !ualiDed plea given by himand the seriousness o the ofense ound to be capital by the court.

The judgment appealed rom is reversed and the case is remanded to the Court below or a newarraignment and a new trial a ter the accused is apprised o his right to have and to be assisted bycounsel. Ao ordered.

15aeta, Pablo, %eng5on, Padilla, 2uason, -ontemayor and /eyes, 99., concur.



G.R. No. 12277" Ja #a y 16, 199!

PEOPLE OF THE PHILIPPINES, plaintif-appellee,

vs.

EDUARDO AG'A ANI y MENDO/A, accused-appellant.

PER CURIAM4

@ine years and our months ago this Court declared+

)ape is a nauseating crime that deserves the condemnation o all decent persons who recogni&e that awomanEs cherished chastity is hers alone to surrender o her own ree will. Whoever violates that willdescends to the level o the odious beast. The act becomes doubly repulsive where the outrage isperpetrated on oneEs own Besh and blood or the culprit is reduced to lower than the lowly animal. The



was ofensive to its dignity and a blatant disrespect to the Court, and actually degrading NtoO theadministration o justice. "ccordingly, the trial court ordered her committed to incarceration andimprisonment within the period provided by law, 15 which penalty, however, was modiDed to a Dne o'?::.:: upon %(%@Es motion or reconsideration. 16

3n rebuttal, the prosecution had %(%@ bac5 on the witness stand. Ahe retracted her aHdavit odesistance and claimed that she had signed it under coercion by her mother and elder sister.

The trial courtEs summary o the evidence or the prosecution, with the re erences to the pages o thestenographic notes and e=hibits deleted, is as ollows+

The evidence adduced on record shows that sometime in Aeptember o //> in alolos, $ulacan, theaccused was charged by his two daughters, %(%#I@" and (3(I " "G$"J"@I, NwithO the crime o rapewhich case was ra ed to the sala o *udge (anilo analastas o $ranch , )egional Trial Court, $ulacan.

The case was, however, provisionally dismissed by said *udge a ter the complainants desisted rompursuing the same in ay //6. %duardo "gbayani was thus conse!uently released rom jail on *uly >,//6. Three 7>8 days therea ter, he began living with our 768 o his si= 798 daughters, edelina, %den,(iana and %dima, in a rented room at >:-" a5abayan At., $gy. 3brero, 1ue&on City.

The evidence o the prosecution, in part consisting o the testimonies o Complainant %den "gbayani,edico-#egal 3Hcer, (r. lorante $alta&ar and A'3 Aalvador $uenviaje, shows that at the above-

mentioned address the complainant, %den "gbayani, on the evening o *uly /, //6, was sleeping onthe Boor o the room with her ather, the accused %duardo "gbayani and her youngest sister, %dima,while her sisters, edelina and (iana slept on a bed. "t the time, complainantEs mother was outside thecountry, wor5ing in Aaudi "rabia. "t about /+:: p.m. o *uly /, Complainant %den "gbayani wasawa5ened rom her sleep by hands caressing her breasts and vagina. Ahe turned to discover that it washer ather who was then molesting her. rightened, she as5ed, Tay ba5it niyo po ginagawa sa a5in ito,gayong 5alalabas mo lang sa 5ulungan and threatened to 5ill her N sic O. The accused then proceededto undress her. Therea ter he undressed himsel and succeeded in having carnal 5nowledge with thecomplainant who could only cry helplessly. The complainant therea ter elt blood dripping rom hervagina and elt pain.

The ne=t day, or on *uly ?:, //6, the complainant in ormed her elder sister, edelina, o what had been

done to her by her ather. Ahe was told not to worry as they would go to $ulacan to report the incidentto iscal Caraeg o $ulacan, who had, the year be ore, handled the rape case Dled by edelina and(odima. Aeveral attempts were made by her sisters, edelina and %den to reach the said Dscal but itwas only on Aeptember /, //6, that they were able to meet with him. iscal Caraeg o $ulacanreported the complaint to *udge (anilo analastas who reopened the previously provisionally dismissedcase and issued a warrant o arrest against the herein accused.

With the assistance o police oHcers rom Atation : o the AII( in 1ue&on City, the accused wasarrested on the same day at his residence at >:-" a5abayan At., $gy. 3brero, 1ue&on City and waslater brought to alolos, $ulacan where he is currently detained. " ter the accusedEs arrest, %den andedelina returned to Atation : where they made individual statements be ore A'3 Aalvador $uenviajenarrating the events leading to and occurring a ter the incident o *uly /, //6.

The ne=t morning, %den was e=amined by edico-#egal 3Hcer and Chie o the '@' Crime #aboratory,(r. lorante $alta&ar, a colonel, who, accordingly, prepared the corresponding edico-#egal )eport. 17

"ppellant put up the de ense o denial and alibi. "ccording to him, he could not have raped his daughter%(%@, because on / *uly //6, he was in $arangay Fictoria in Aual, 'angasinan, visiting his eldestdaughter. 1! 2e declared that %(%@ charged him with rape because he had hit her with a belt a ter hecaught her lying about her whereabouts one night. Then on ?6 *uly //6, she le t their rentedapartment and did not return anymore. 19

"doracion Cru& corroborated appellantEs alibi. Ahe declared that on *uly //6, appellant re!uested



her to ta5e care o his children because he was going to 'angasinan to visit his sic5 ather, returninghome only on ? *uly

//6. 2"

The trial court gave ull credence to the testimony o %(%@, who appeared, during her entiretestimonies on *anuary ?: and ay 6, //<, coherent, candid and responsive; urther, it commendedher or her courage and her unwavering strength in the midst o the emotional and psychological strain

and humiliation, not to mention the pressure and lac5 o moral support o her amily, brought on by theDling o this case. It also ruled that %(%@ did not voluntarily e=ecute the aHdavit o desistance, as itwas procured at the behest o her mother and sister or whom the sanctity o the amily and theamilyEs good name were more important than demanding punishment or whatever injury thecomplainant might have sufered in the hands o the accused. $esides, even assuming arguendo thatno such pressure was e=erted by her mother and sister, the trial court declared that it understood%(%@Es moral predicament, vi5 ., or a child li5e %(%@, it was diHcult to charge her own ather with rape;insist on his punishment; and thereby inBict emotional stress and Dnancial strain upon the members oher amily, particularly her mother.

The trial court li5ewise gave ull aith to the sworn statement 7%=hibit % 8 o edelina "gbayani.

Turning to the de ense o appellant, the trial court ound his alibi wholly sel -serving, and characteri&ed

the testimony o "doracion Cru& unworthy o belie . "s to appellantEs claim that %(%@ Dled thecomplaint because o a grudge against him, the trial court ound this incredible, i not totally absurd,or+

The complainant is an innocent girl o tender years who is unli5ely to possess such vindictiveness anddearth o conscience as to concoct such a malicious and damaging story. The complainant appeared,during her entire testimonies on *anuary ?: and ay 6, //<, coherent, candid and responsive. 2erretraction on arch 9 was suHciently e=plained to this Court 7tsn, <-6-/<, testimony o %den "gbayani,pp. ?->8. Ahe has shown to this Court the seriousness o the injury upon her person and dignity inBictedupon by the accused. . . . %ven assuming argumenti gratia that the complainant would indeed lodge acomplaint against her ather solely on account o an altercation with him, it is highly unli5ely that thecomplainant would concoct a charge which would damage her and wrec5 havoc on her amilyEs

reputation, destroy the household peace and subject her ather, the accused, to a grave punishmentwhich by dent o e=press o law, can obliterate him rom the ace o this earth. Indeed, to uphold thede enseEs proposition would be stretching the imagination too ar, i not to the e=treme.

The trial court Dnally ound that appellant employed on %(%@ orce or intimidation by virtue o his moralascendancy over her and his threat that he would 5ill her i she reported the incident to anyone.

"ccordingly, the trial court, applying Aection o ).". @o. 9</ which imposes the penalty o deathwhen the victim is under eighteen years o age and the ofender is a parent, ascendant, stepparent,guardian, relative by consanguinity or aHnity within the third civil degree, or common-law spouse o theparent o the victim, rendered judgment against appellant, to wit+

W2%)% 3)%, considering all the oregoing, judgment is hereby rendered Dnding the accused, %(K")(3"G$"J"@I, GKI#TJ beyond reasonable doubt o the crime o )"'% committed against complainant, %den"gbayani, his minor daughter. This Court, as a conse!uence thereo , hereby imposes upon him thesupreme penalty o (%"T2, con ormably with the provisions o the death penalty law, ).". 9</.urther, "ccused is hereby ordered to pay the complainant, %den "gbayani, the sum o ' <,:::.:: asdamages, with all the necessary penalties provided or by law without subsidiary imprisonment,however, in the event o insolvency and to pay the costs.

#et the entire records o this case be orwarded to the Aupreme Court on automatic review.

A3 3)(%)%(.

3n ?9 ay //<, appellant, through his new counsel de parte "ttorneys roilan F. Aiobal and (omingo



loresta, Dled a otion or @ew Trial 21 on the ground that serious irregularities prejudicial to hissubstantial rights were committed during the trial, vi5 ., the ailure o the counsel de o cio to+ 7a8present at trial the $arangay Captain o $arangay 3brero, 1ue&on City, who would have testiDed, onthe basis o certiDcation attached to the motion, that there was a house bearing @o. >:, a5abayan At.,in his barangay, but that there was no such place as >:-" a5abayan At. o said barangay, which wasthe address given by %(%@; 7b8 consider the utility o "doracion Cru&Es testimony; 7c8 present privatecomplainantEs mother and sister edelina on sur-rebuttal to testi y as to the circumstances which

brought about the e=ecution o the aHdavit o desistance; and 7d8 cross-e=amine complainant and thepolice investigator e=haustively. 2e urther alleged that his counsel de o cio was never prepared duringall the scheduled hearings, worse, even waived the presence o appellant a ter the third witness or theprosecution was presented. 2e also averred that the trial court used its inherent power o contempt tointimidate private complainant.

In their CommentsQ3pposition to the otion or @ew Tria , 22 the public and private prosecutors allegedthat there were no such irregularities; neither was there new and material evidence to be presentedthat appellant could not, with reasonable diligence, have discovered and produced at the trial andwhich i introduced and admitted at trial would probably change the judgment o the court.

In its 3rder 23 o > *uly //<, the trial court denied the motion or new trial or being devoid o merit andor not being within the purview o Aections and ?, )ule ? o the )ules o Court.

In his "ppellantEs $rie Dled be ore this Court, appellant contends that the trial court erred in+ 7a8denying his motion or new trial; and 7b8 holding that the prosecution proved beyond reasonable doubtthat he committed the crime charged.

In support o the Drst assigned error, appellant reiterates the grounds in his motion or new trial, andadds two others, namely, 7 8 the lower court ailed to apprise him o his right to have counsel o his ownchoice; and 7?8 the lower court did not give him the opportunity to prepare or trial, despite themandated period o two days prescribed in Aection / o )ule 9 o the )ules o Court.

In his second assigned error, appellant contends that %(%@Es testimony is not suHcient to convict, sinceit is unclear and not ree rom serious contradictions. Considering their pro=imity to %(%@, it wasimpossible or her sisters or any one o them not to have been awa5ened when %(%@ was allegedly

being abused by him. Atrangely, %(%@ simply 5ept !uiet and allowed him to abuse her; neither did sheshout or help or put up a Dght that would have awa5ened her sisters. @otably, %(%@ and her sistersallowed him to live and sleep with them again in their rented room even a ter the alleged rape.

inally, appellant asserts that %(%@Es testimony is unreliable because her aHdavit o desistance musthave necessarily been contradictory thereto. 2er subse!uent turn-around . . . that she was pressuredand inBuenced to e=ecute and sign the aHdavit o desistance urther conDrmed her being untruth uland, in efect, demolished whatsoever aith le t on her charge against the accused.

The 3Hce o the Aolicitor General 73AG8 considers the Drst assigned error as devoid o merit. Whenappellant appeared without counsel at the arraignment, the trial court in ormed him that it wouldappoint de o cio counsel or him i he so desired, to which appellant agreed. oreover, the ?-day periodto prepare or trial provided in Aection / o )ule 9 is merely directory and does not prohibit the courtrom proceeding with trial a ter arraignment, especially i the de ense, as here, consented thereto. Itwould have been entirely diferent i the de ense did not agree, in which case the court would have noother alternative but to grant him the period.

"s to appellantEs other grievances, the 3AG points out that throughout all the hearings, appellant never!uestioned the way his de ense was being handled by his counsel de o cio . The latterEs re!uest or acontinuance because he had not yet con erred with appellant was not evidence o counselEs lac5 osincerity. 3n the contrary, it showed counselEs awareness o his duty to con er with appellant to erretout the relevant acts as regards the second witness or the prosecution. #i5ewise, the waiver oappellantEs presence during the hearing o 0 arch //< did not prejudice him, because on that date,



the de ense presented %(%@ to testi y as to her aHdavit o desistance, and edelina to corroborate thestatements o %(%@ U which testimonies were in appellantEs avor. "s to the manner appellantEscounsel de o cio cross-e=amined the prosecution witnesses, the 3AG stresses that the record showsthat said counsel tried his best.

The 3AG then characteri&es the second assigned error as barren o merit. %(%@Es positiveidentiDcation o appellant as the author o the crime rendered appellantEs de ense o alibi unavailing;moreover, she demonstrated clearly and vividly what transpired that ate ul evening o / *uly //6.

Thus in view o %(%@Es candid and categorical manner o testi ying the 3AG concluded that she was acredible witness. 2

"s to the commission o rape in a small room and in the presence o other persons, the 3AG maintainsthat such was not at all improbable. 25 There was, as well, nothing unusual in %(%@Es silence; as shecould only attempt to shout because appellant had succeeded in covering her mouth with his hands ande=ercised a high level o moral ascendancy over %(%@, his daughter. 26 2ence the 3AG invo5es theprinciple that in a rape committed by a ather against his own daughter, the ormerEs moral ascendancyand inBuence over the latter substitutes or violence intimidation. 27

"s regards %(%@Es aHdavit o desistance, the 3AG maintains that courts loo5 with dis avor on retractiono testimonies previously given in court, or such can easily be secured rom poor and ignorant

witnesses usually or a monetary consideration, 2!

as well as the probability that it may later berepudiated.

In his )eply $rie , appellant countered that his consent to the appointment o counsel de o cio at hisarraignment did not relieve the court o its duty under Aection 9 o )ule 9 o the )ules o Court toin orm him o his right to counsel and that it would be grievous error to deny an accused such right."ppellant then elaborated on this point as ollows+

This is not without judicial precedent. In People vs . !achero , > 'hil. 6?9 and People vs . #omenden , >'hil. >6/, cited in )* ranciscoEs Criminal 'rocedure, Third %d., /99, p. >?> it was held, that+

The courts should comply with )ule 9, Aec. >. It would be a grievous error to proceed by sentencingthe accused without due process o law and this is not complete, when the accused is denied the rightrecogni&ed by said rule. The records must show compliance therewith or that the accused renouncedhis right to be assisted by counsel. This is demanded by the interest o justice and remove all doubtsthat i the accused had waived said right, he was ully in ormed be ore giving his plea o itsconse!uences. 3mission by courts whether voluntary should not truly be censured but also condemned.

(iscussing urther the right to the ?-day period to prepare or trial, the appellant contends that saidright+

N2Oas been held to be mandatory and denial o this right is a reversible error and a ground or new trial.7). *. ranciscoEs Criminal 'rocedure, Third %d., /09, p. 6:6, citing People vs . -i6ares, et al ., 6 3G69:9; #umasig v . -orave , ?> AC)" 9</8. This must be so . . . to prevent that any accused be caughtunaware and deprived o the means o properly acing the charges presented against him.

The Drst assigned error does not persuade this Court. It is true that the transcript o the stenographic

notes o the proceedings o ?? (ecember //6 and the order issued by the trial court a ter theconclusion o said proceedings only state that the court appointed de o cio counsel with the consent othe said accused. They do not categorically disclose that the trial in ormed appellant o his right tocounsel o his own choice. 2owever, this does not mean that the trial court ailed to in orm appellant osuch right. The precise time the two counsel de o cio were appointed is not disclosed in the recordeither. "t the recorded portion o the arraignment aspect o the proceedings on ?? (ecember //6, thetwo ormally entered their appearance, thus+

C3K)T+ Call the case.

7Interpreter calls the case8.



IAC"# )3A")I3 $")I"A+

or the prosecution, Jour 2onor.

"TTJ. ")I%T" "GK*"+

)espect ully appearing or the prosecution, Jour 2onor under the control and direct supervision o the Trial 'rosecutor, Jour 2onor, we are ready to present our Drst witness.

"TTJ. $"#("(3+$or the accused =our Honor, appointed as counsel de o cio .

"TTJ. (% #" C)K4+

$or the accused, =our Honor appointed by the court as counsel de o cio . 29

This obviously means that the appointment had ta5en place earlier. The trial courtEs order 3" o ??(ecember //6 states that said de o cio counsel were duly appointed by the Court with the consent o the accused. Aince appellant has miserably ailed to show that he was not in ormed o his right tocounsel, the presumptions that the law has been obeyed and oHcial duty has been regularly per ormedby the trial court stand. 31 In other words, the trial court is presumed to have complied with its our- oldduties under Aection 9 32 o )ule 9 o the )ules o Court, namely, 7 8 to in orm the accused that he has

the right to have his own counsel be ore being arraigned; 7?8 a ter giving such in ormation, to as5accused whether he desires the aid o counsel; 7>8 i he so desires to procure the services o counsel,the court must grant him reasonable time to do so; and 768 i he so desires to have counsel but isunable to employ one, the court must assign counsel de o cio to de end him. 33

It is settled that the ailure o the record to disclose aHrmatively that the trial judge advised theaccused o his right to counsel is not suHcient ground to reverse conviction. The reason being that thetrial court must be presumed to have complied with the procedure prescribed by law or the hearingand trial o cases, and that such a presumption can only be overcome by an aHrmative showing to thecontrary. Thus it has been held that unless the contrary appears in the record, or that it is positivelyproved that the trial court ailed to in orm the accused o his right to counsel, it will be presumed thatthe accused was in ormed by the court o such right. 3

In 0 .* . v . Labial , 35 this Court held+"dhering to the doctrine laid down in that case, the only !uestion to be determined in this case iswhether the ailure o the record to disclose aHrmatively that the trial judge advised the accused o their right to have counsel is suHcient ground to reverse the judgment o conviction and to send thecase bac5 or a new trial. Kpon this point we are all agreed that in the absence o an aHrmativeshowing that the court below did in act ail to advise the accused o their rights under the provisions o sections o General 3rders @o. <0, as amended by section o "ct @o. 66:, the mere omission romthe record brought here upon appeal o an entry aHrmatively disclosing that he did so, is not reversibleerror.

In the absence o an aHrmative showing to the contrary, the court below must be presumed in matterso this 5ind to have complied with the provisions o law prescribing the procedure to be ollowed in the

trial had be ore him.

While in People v . -iranda 36 this Court e=plicitly stated+

2owever, said counsel calls attention to the act that the record is silent as to whether or not, at thetime appellant was arraigned, the trial court in ormed him o his right to be assisted by an attorney,under section > o )ule ? o the )ules o Court.

This precise issue was determined in 0nited *tates vs . Labial 7? 'hil., 0 , 008, in the sense that unlessthe contrary appears in the records, it ill be presumed that the de endant was in ormed by the courto his right to counsel. . . . I we should insist on Dnding every act ully recorded be ore a citi&en can be



punished or an ofense against the laws, we should destroy public justice, and give unbridled license tocrime. uch must be le t to intendment and presumption, or it is o ten less diHcult to do thingscorrectly than to describe them correctly. 7Knited Atates vs. #abial, supra .8 The same doctrine wasreiterated in People vs . Abuyen 7<? 'hil. ??8 and in 0nited *tates vs . !ustan 7?0 'hil. /8. We see noreason to modi y it now.

In the instant case, the trial court appointed t o de o cio counsel who assisted the appellant at hisarraignment, one o whom e=tensively cross-e=amined the Drst witness or the prosecution, (r. lorante$alta&ar. 37 $esides, it is only in this appeal that appellant raised the issue o the ailure o the trial courtto in orm him o the right to counsel. "t no time did he previously raise it in the trial court despite ampleopportunity to do so. 2is consent to be assisted by counsel de o cio , coupled with said counselEse=tensive cross-e=amination o (r. $alta&ar, may even be considered a waiver o his right to !uestionthe alleged ailure o the trial court to in orm him o his right to counsel. 3!

The cases o People v . #omenden 39 and People v . !achero " cited by appellant are inapplicable. In bothcases the trial courts there clearly ailed to in orm the accused o their right to counsel nor appoint deo cio counsel during the arraignment. @evertheless, we ta5e this opportunity to admonish trial courtsto ensure that their compliance with their pre-arraignment duties to in orm the accused o his right tocounsel, to as5 him i he desires to have one, and to in orm him that, unless he is allowed to de endhimsel in person or he has counsel o his choice, de o cio counsel will be appointed or him, must appear on record .

Turning to the alleged violation o appellantEs right to the ?-day period to prepare or trial, Aection / o )ule 9 o the )ules o Court reads+

Aec. /. 2ime to prepare for trial U " ter a plea o not guilty, the accused is entitled to two 7?8 days toprepare or trial unless the court or good cause grants him urther time.

It must be pointed out that the right must be e=pressly demanded. 1 3nly when so demanded doesdenial thereo constitute reversible error and a ground or new trial. 2 urther, such right may be waived,e=pressly or impliedly. 3 In the instant case, appellant did not as5 or time to prepare or trial, hence, heefectively waived such right.

(uring the succeeding hearings, appellant was represented by "tty. Temanil o the 'ublic "ttorneyEs3Hce in 1ue&on City, who entered his appearance as de parte , and not as de o cio , counsel. It is to bepresumed that "tty. TemanilEs services were obtained pursuant to the law creating the 'ublic "ttorneyEs3Hce 7'"38, ormerly the Citi&enEs #egal "ssistance 3Hce 7C#"38. There is at all no showing that "tty.

Temanil lac5ed the competence and s5ill to de end appellant. The latterEs contention that his counselwas not ready at all times because at the hearing on ?: *anuary //< he as5ed or a continuation as hehas not yet interviewed NhisO Client, 5 is misleading. "tty. Temanil made that statement a ter he cross-e=amined %(%@ and a ter the judge reali&ed that it was almost +:: oEcloc5 in the a ternoon and both o them were already hungry, thus+

"TTJ. T% "@I#+

I just want to ma5e it on record, Jour 2onor that rom the start o trial the witness appears to be Buentand sufers no diHculty in answering the !uestions, even the !uestions propounded by the 'rivate'rosecutor, Jour 2onor.

C3K)T+

'ut that on record.

That is true, "tty. Temanil, it is almost +:: oEcloc5 in the a ternoon and we are both hungry now.

"TTJ. T% "@I#+

I will just as5ed N sic O or continuance considering that I have not yet interviewed my client, Jour 2onor. 6

@either is there merit in appellantEs claim that his counsel committed irregularities+ 7 8 in not



considering the utility o the testimony o "doracion Cru&; 7?8 in not presenting the barangay captain inthe evidence in chie or the de ense, and %(%@Es mother and sister edelina in sur-rebuttal; and 7>8 innot cross-e=amining e=haustively %(%@.

"doracion Cru& was presented to corroborate appellantEs alibi that he was in the province and not intheir rented room rom to ? *uly //6. 3n the other hand, the testimony o the barangay captaincould not alter the act that rape was committed in a rented room in a house along a5abayan Atreet inhis barangay. "ppellant neither testiDed that he did not occupy a house numbered >:-" nor denied thathe was living with %(%@ and her sisters in that room. $esides, he and his children were not renting theentire house, but merely a room, which could probably be the unit numbered >:-" re erred to by%(%@.

"s to the presentation o %(%@Es mother and sister edelina as sur-rebuttal witnesses to disprove theclaim o %(%@ that they coerced her into signing the aHdavit o desistance, suHce it to state that therewas nothing to show that they were in act willing to re ute %(%@Es claim.

inally, contrary to appellantEs allegation, a meticulous e=amination o the transcripts o thestenographic notes convinces this Court that "tty. Temanil suHciently cross-e=amined %(%@. I hedecided to terminate his cross-e=amination, it could have been due to the utility o any urther cross-e=amination which might only prove avorable to the prosecution, as it might have opened another

window o opportunity or %(%@ to strengthen her testimony. The second assigned error is e!ually unpersuasive. It raises the issue o the credibility o %(%@ as awitness. 3ne o the highly revered dicta 'hilippine jurisprudence has established is that this Court willnot inter ere with the judgment o the trial court in passing upon the credibility o opposing witnesses,unless there appears in the record some acts or circumstances o weight and inBuence which havebeen overloo5ed and, i considered, would afect the result. This is ounded on practical and empiricalconsiderations, i.e ., the trial judge is in a better position to decide the !uestion o credibility, since hepersonally heard the witnesses and observed their deportment and manner o testi ying. 7 2e hadbe ore him the essential aids to determine whether a witness was telling the truth or lying. Truth doesnot always stal5 boldly orth na5ed; she o ten hides in noo5s and crannies visible only to the mindEs eyeo the judge who tried the case. To him appears the urtive glance, the blush o conscious shame, the

hesitation, the sincere or Bippant or sneering tone, the heat, the calmness, the yawn, the sigh, thecandor or lac5 o it, the scant or ull reali&ation o the solemnity o an oath, the carriage and mien. ! 3nthe other hand, an appellate court has only the cold record, which generally does not reveal the thinline between act and prevarication that is crucial in determining innocence or

guilt. 9

"t any rate, in view o the gravity o the ofense charged and the e=treme penalty o death imposed,this Court too5 painsta5ing efort and meticulous care in reviewing the transcripts o the stenographicnotes o the testimonies o the witnesses.

This Court is ully satisDed that %(%@ told the truth that she was raped by her ather, herein appellant,on / *uly //6, in their rented room in $arangay 3brero, 1ue&on City. 2er story was made even morecredible by the simplicity and candidness o her answers, as well as by the act that it came rom aninnocent girl writhing in emotional and moral shoc5 and anguish. Ahe must have been torn between thedesire to see5 justice and the ear that a revelation o her ordeal might mean the imposition o capitalpunishment on her ather. $y testi ying in court, she made public a pain ul and humiliating secret, whichothers may have simply 5ept to themselves or the rest o their lives. Ahe thereby jeopardi&ed herchances o marriage, as even a compassionate man may be reluctant to marry her because hertraumatic e=perience may be a psychological and emotional impediment to a bliss ul union. oreover,such a revelation divided her amily and brought it shame and humiliation.

I %(%@ did testi y regardless o these conse!uences and even allowed the e=amination o her privateparts, she did so inspired by no other motive than to obtain justice and release rom the psychological



and emotional burdens the pain ul e=perience had oisted upon her. It was then improbable that %(%@abricated a story o deBoration and alsely charged her own ather with a heinous crime.

What appellant claims to be improbabilities in the testimony o %(%@ are more apparent than real. Thepresence o her sisters in the small room did not at all ma5e impossible the commission o rape. Theevil in man has no conscience. The beast in him bears no respect or time and place; it drives him tocommit rape anywhere U even in places where people congregate such as in par5s, along the roadside,within school premises, and inside a house where there are other occupants. 5" In People v . 1pena , 51 rapewas committed in a room occupied also by other persons. In the instant case, %(%@EEs othercompanions in the room when she was molested by appellant were young girls who were all asleep.

That %(%@ was unable to resist or shout or help can easily be e=plained by the act that appellantthreatened to 5ill her. Whether or not he was armed was o no moment. That threat alone coming romher ather, a person who wielded such moral ascendancy, was enough render her incapable o resistingor as5ing or help.

Intimidation in rape cases is not calibrated nor governed by hard and ast rules. Aince it is addressed tothe victimEs and is there ore subjective, it must be viewed in light o the victimEs perception and

judgment at the time o the commission o the crime. It is enough that the intimidation produced ear Uear that i the victim did not yield to the bestial demands o the accused, something ar worse would

happen to her at that moment. Where such intimidation e=isted and the victim was cowed intosubmission as a result thereo , thereby rendering resistance utile, it would be the height ounreasonableness to e=pect the victim to resist with all her might and strength. I resistance wouldnevertheless be utile because o intimidation, then ofering none at all does not mean consent to theassault so as to ma5e the victimEs submission to the se=ual act voluntary. 52

In any event, in a rape committed by a ather against his own daughter, as in this case, the ormerEsmoral ascendancy or inBuence over the latter substitutes or violence or intimidation. 53 #i5ewise, it mustnot be orgotten that at her tender age o 6 years, %(%@ could not be e=pected to act with thee!uanimity o disposition and with nerves o steel, or to act li5e a mature and e=perienced woman whowould 5now what to do under the circumstances, or to have courage and intelligence to disregard thethreat. 5 %ven in cases o rape o mature women, this Court recogni&ed their diferent and unpredictable

reactions. Aome may shout; some may aint; and some may be shoc5ed into insensibility; while othersmay openly welcome the intrusion. 55

@either does the act that %(%@ continued to live with appellant in same rented room disprove the rape.While she was hurt physically, psychologically and emotionally, yet the thought must have beenirresistible and compelling that her assailant was her own ather, who was both a ather and mother toher since her mother was in Aaudi "rabia and who provided her with the daily wherewithal to 5eep heralive. $esides, a less harsh li e outside was uncertain. Instances are not ew when daughters raped bytheir athers stayed with the latter and 5ept in the deepest recesses o their hearts the evil deed even i the memory thereo haunted them orever.

@or is there merit in the insistent claim that %(%@Es aHdavit o desistance must have necessarilycontradicted her previous testimony. We have earlier !uoted in ull this aHdavit o desistance. 'lainly,

nowhere therein did she retract her previous testimony or claim that she was raped by her ather. Inany case, %(%@ withdrew her aHdavit o desistance and solemnly declared that she was pressured byher mother and sister to sign it. oreover, aHdavits, being ta5en e< parte , are generally consideredin erior to the testimony given in open court; 56 and aHdavits o recantation have been invariablyregarded as e=ceedingly unreliable, since they can easily be secured rom poor and ignorant witnesses.It would be a dangerous rule to reject the testimony ta5en be ore a court o justice simply because thewitness who gave it later on changed his mind or one reason or another. Auch a rule would ma5e asolemn trial a moc5ery, and place the proceedings at the mercy o unscrupulous witnesses. 57

This Court has no doubt that appellant is guilty as charged. The penalty there or is death under the Drst



circumstance mentioned in "rticle >><7 8 o the )evised 'enal Code, as amended by ).". @o. 9</,which provides, in part, as ollows+

The death penalty shall also be imposed i the crime o rape is committed with any o the ollowingattendant circumstances+

. When the victim is under eighteen 7 08 years o age and the ofender is a parent, ascendant, step-parent, guardian, relative by consanguinity or aHnity within the third civil degree, or the common-law

spouse o the parent o the victim. This law may be diHcult to accept or those who believe that the verdict o death or a sin or crime isGodEs e=clusive prerogative. $ut the undamental law o the land allows Congress, or compellingreasons, to impose capital punishment in cases o heinous crimes, 5! hence the passage o ).". @o. 9</.Hoc quidem per quam durum est sed ita le< scripta est . The law may be e=ceedingly hard but so thelaw is written and the Court is duty-bound to apply it in this case.

To the appellant who inBicted his animal greed on his daughter in a disgusting coercion o incestuouslust, thereby orsa5ing that which is highest and noblest in his human nature and reducing himsel tolower than the lowliest animal, the ull orce o the law must be weighed against him, or he deserves noplace in society. "ll that we concede to him is a modiDcation o the award o ' <,:::.:: as damages,which is hereby reduced to '<:,:::.:: in accordance with current case law.

W2%)% 3)%, judgment is hereby rendered " I) I@G the decision o the )egional Trial Court o1ue&on City, $ranch :9, in Criminal Case @o. 1-/6-</ 6/ Dnding accused-appellant %(K")(3"G$"J"@I y %@(34" guilty beyond reasonable doubt as principal o the crime o rape deDned andpenali&ed under "rticle >>< o the )evised 'enal Code, as amended by ).". @o. 9</, and imposingupon him the penalty o #"A2H , subject to the above modiDcation as to the amount o indemnity.

Two *ustices voted to impose upon the accused-appellant the penalty o reclusion perpetua .

Kpon Dnality o this (ecision, let certiDed true copies thereo , as well as the records o this case, beorwarded without delay to the 3Hce o the 'resident or possible e=ercise o e=ecutive clemencypursuant to "rticle 0> o the )evised 'enal Code, as amended by Aection ?< o ).". @o. 9</.

With costs de o cio .

A3 3)(%)%(.



G.R. No. L0217 1 Ja #a y 25, 192

AURELIA CONDE, petitioner,

vs.

PA'LO RI ERA, a;&* $ o?* ;*a) %;a) o: Taya a%, a - FEDERICO M. UNSON, #%&*; o: &8

a; o: L#; a, Taya a%, respondents.4odofredo /eyes for petitioner.Attorney+4eneral 8illa+/eal for respondents.

MALCOLM, J.:

"urelia Conde, ormerly a municipal midwi e in #ucena, Tayabas, has been orced to respond to no lessthan Dve in ormations or various crimes and misdemeanors, has appeared with her witnesses andcounsel at hearings no less than on eight diferent occasions only to see the cause postponed, has twicebeen re!uired to come to the Aupreme Court or protection, and now, a ter the passage o more thanone year rom the time when the Drst in ormation was Dled, seems as ar away rom a deDniteresolution o her troubles as she was when originally charged.

'hilippine organic and statutory law e=pressly guarantee that in all criminal prosecutions the accused

shall enjoy the right to have a speedy trial. "urelia Conde, li5e all other accused persons, has a right toa speedy trial in order that i innocent she may go ree, and she has been deprived o that right indeDance o law. (ismissed rom her humble position, and compelled to dance attendance on courtswhile investigations and trials are arbitrarily postponed without her consent, is palpably and openlyunjust to her and a detriment to the public. $y the use o reasonable diligence, the prosecution couldhave settled upon the appropriate in ormation, could have attended to the ormal preliminarye=amination, and could have prepared the case or a trial ree rom ve=atious, capricious, andoppressive delays.

3nce be ore, as intimidated, the petitioner had to come to us or redress o her grievances. We thoughtthen we had pointed out the way or the parties. $ut it seems not. 3nce again there ore and Dnally, wehope, we propose to do all in our power to assist this poor woman to obtain justice. 3n the one handhas been the petitioner, o humble station, without resources, but ortunately assisted by a persistentlawyer, while on the other hand has been the Government o the 'hilippine Islands which should be thelast to set an e=ample o delay and oppression in the administration o justice. The Court is thus under amoral and legal obligation to see that these proceedings come to an end and that the accused isdischarged rom the custody o the law.

We lay down the legal proposition that, where a prosecuting oHcer, without good cause, securespostponements o the trial o a de endant against his protest beyond a reasonable period o time, as inthis instance or more than a year, the accused is entitled to relie by a proceeding in mandamus tocompel a dismissal o the in ormation, or i he be restrained o his liberty, by habeas corpus to obtainhis reedom. 7 9 C.*., 6>/ et seq .; In the matter o ord N / O, 9: Cal., >>6; K.A. vs . o= N 00:O, >ontana, < ?. Aee urther our previous decision in Conde vs . *udge o irst Instance, ourteenth *udicial(istrict, and the 'rovincial iscal o Tayabas, @o. ? ?>9.

The writ prayed or shall issue and the 'rovincial iscal o Tayabas shall abstain rom urther attempts toprosecute the accused pursuant to in ormations growing out o the acts set orth in previousin ormations, and the charges now pending be ore the justice o the peace o #ucena, Tayabas, areordered dismissed, with cost against the respondent Dscal. We append to our order the observationthat, without doubt, the "ttorney-General, being ully cogni&ant o the acts o record, will ta5e suchadministrative action as to him seems proper to the end that incidents o this character may not recur.Ao ordered.

Araullo, !.9., 9ohnson, *treet, Avance>a, 1strand, 9ohns and /omualde5, 99., concur.



G.R. No. L061356057 S & 3", 19!6

PEOPLE OF THE PHILIPPINES, plaintif-appellee,

vs.

FELICISIMO JARA, RE MUNDO ERGARA a - RO'ERTO 'ERNADAS, de endants-appellants.

GUTIERRE/, JR., J.:

We are once again constrained to ta5e a hard loo5 into the suHciency o e=tra-judicial con essions asthe sole basis or the imposition o the supreme penalty o (%"T2.

The three appellants were all sentenced to death in Criminal Case @o. ?<96 or robbery with homicide.In the companion case o parricide, one was sentenced to another death penalty while the two otherappellants received sentenced ranging rom ? to ?: years o imprisonment.

3ur tas5 is made diHcult by the act that the crimes were specially ruthless and barbarous in theircommission. @o less than the counsel or the appellants states that the people o 'uerto 'rincesa are nostrangers to crime and that the re!uency o criminal acts in their city has somehow benumbed thesensibilities o its citi&ens. Jet, the discovery on *une /, / 0 o the brutally and badly bashed corpseso two well-5nown and loved women o their community was still shoc5ing to their senses.

There is the added actor that the police oHcers who investigated the crime and secured thecon essions seemed so certain that indeed the three appellants are the male actors. The con essionsare convincing in their details. The trial court noted that both victims were assaulted and 5illed withthe might and ury o one really who had harbored so long a grudge and hate and only elicisimo *arahad that 5ind o ill-will against his estranged wi e and her emale companion. oreover, *ara, a recidivistor the crime o homicide, was characteri&ed as an e=perienced 5iller. There must be many residents o 'uerto 'rincesa who are thus convinced about the correct solution o the crime. "nd perhaps, theappellants could have been the 5illers.

The unction o this Court, however, is not to indulge in surmises or probabilities. The issue be ore us is

whether or not the evidence o guilt is admissible under the standards D=ed by the Constitution and i the !uantum o proo , which we are allowed by the Constitution to consider, establishes guilt beyondreasonable doubt.

The decision o the ormer Court o irst Instance o 'alawan, th *udicial (istrict, $ranch in theconsolidated cases o 'eople o the 'hilippines versus elicisimo *ara, et al. 7Criminal Case @o. ?<968 or)obbery with 2omicide and People of the Philippines vs. $elicisimo 9ara, et al . 7Criminal Case @o. ?<9<8or 'arricide is involved in this automatic review. "ll the three accused in Criminal Case @o. ?<96 weresentenced to sufer the ma=imum penalty o death, to indemni y jointly and severally the heirs o thedeceased "mparo $antigue in the sum o 'l,:::.::, the amount stolen, and the sum o ' ?,:::.::. In



Criminal Case @o. ?<9<, or the 5illing o #uisa *ara, accused elicisimo *ara was ound guilty beyondreasonable doubt o the crime o parricide and meted out the ma=imum penalty o death while the twoother accused were ound guilty o homicide and sentenced to sufer an indeterminate penalty o twelve 7 ?8 years o prision mayor as minimum to twenty 7?:8 years o reclusion temporal as ma=imum."ll the accused were ordered to indemni y jointly and severally the heirs o #uisa *ara in the sum o ' ?,:::.::.

The in ormation or the crime o robbery with homicide in Criminal Case @o. ?<96 reads as ollows+

That on or about the /th day o *une, / 0, about +>: oEcloc5 in the morning, at alvar At., 'uerto'rincesa City, 'hilippines and within the jurisdiction o this 2onorable Court, the above-named accused,conspiring and con ederating together and mutually helping each other, with intent to 5ill, evidentpremeditation and treachery, a ter gaining entrance to the house thru the window, an opening notintended or entrance or egress, did then and there wil ully, unlaw ully and eloniously stri5e with ahammer "mparo Fda. de $antigue hitting her on the vital parts o her body and stab with a scissorwhile she was soundly sleeping in her bedroom with one #uisa *ara, thereby causing her instantaneousdeath as a result thereo , and that a ter 5illing "mparo Fda. de $antigue, accused in conspiracy witheach other, with intent to gain and without the consent o the owner thereo , too5, stole and carriedaway a piggy ban5 and a buddha ban5 containing money in the amount o not more than '?::.::, tothe damage and prejudice o the heirs o "mparo Fda. de $antigue, in the total amount o TW%#F%

T23KA"@( TW3 2K@()%( '%A3A 7' ?,?::.::8 'hilippine Currency.

C3@T)")J T3 #"W and committed with aggravating circumstances o )ecidivism with respect toaccused elicisimo *ara, the latter having been previously convicted o the crime o homicide in theCourt o irst Instance o Iloilo, and the aggravating circumstance against all the accused that the crimewas committed with treachery, in the dwelling o the ofended party, in the nighttime, and with respectto accused )eymundo Fergara and )oberto $ernadas, or having participated in the commission o thecrime in consideration o a pri&e or reward.

In Criminal Case @o. ?<9<, the in ormation charged the accused as ollows+

That on or about *une /, / 0, at about +>: oEcloc5 in the morning, at alvar At., 'uerto 'rincesa City,'hilippines and within the jurisdiction o this 2onorable Court, the above-named accused, conspiring

and con ederating together and mutually helping each other with intent to 5ill, treachery and evidentpremeditation, did then and there wil ully, unlaw ully and eloniously stri5e several times, with ahammer one #uisa *ara, who is the law ully wedded wi e o accused elicisimo *ara, and therea ter,stabbed her with a scissor in her chest and abdomen, while the latter was soundly sleeping with one"mparo Fda. de $antigue, resulting to the instantaneous death o said #uisa *ara, to the damage andprejudice o the heirs o said #uisa *ara in the amount o TW%#F% T23KA"@( 7' ?,:::.::8 '%A3A,'hilippine Currency,

C3@T)")J T3 #"W and committed with the aggravating circumstances o )ecidivism with respect toaccused elicisimo *ara, the latter having been previously convicted o the crime o homicide in the C Io Iloilo, and the aggravating circumstance against all the accused, namely+ 7 8 that the crime wascommitted in the dwelling o the ofended party, 7?8 in the nighttime, 7>8 and treachery; and the

aggravating circumstance against accused )eymundo Fergara and )oberto $ernadas o havingparticipated in the commission o the crime in consideration o a pri&e or reward.

"ll the accused pleaded not guilty during the arraignment. 3n motion by the prosecution and thede ense, the court a !uo ordered a joint trial o the two cases which arose rom one incident and wherethe witnesses are the same.

The acts according to the prosecution are as ollows+

"t about 9+:: oEcloc5 in the early morning o *une /, / 0, the waitresses at "lvinEs Canteen situated inalvar Atreet, 'uerto 'rincesa City, wondered why their employer, the deceased "mparo $antigue, did



underlying bone, located at the le t ace.

/. Wound, macerated, roughly oval in shape, about ? inches in length, with depressed-comminutedracture o the underlying bone, located at the right temporal region.

:. Wound, macerated, elongated, about ? inches in length with depressed-comminuted racture o theunderlying bone located at the right ace.

. Wound, stabbed, about an inch in length at the right chest, between the >rd and 6th intercostalspace, penetrating the thoracic cavity involving the right lung.

?. Wound, stabbed, about inch in length, located at the chest, central portion, penetrating thesternum, then thoracic cavity piercing the right auricle, heart.

>. Wound, stabbed, about inch in length, located at the right upper abdomen penetrating theabdominal cavity involving the liver and stomach. 7%=hibit " 8.

C"KA% 3 (%"T2+ 2% 3))2"G% I@T)"-C)"@I"# A%C. T3 K#TI'#% C3 I@KT%(-(%')%AA%()"CTK)% 3 T2% C)"@I"# $3@%A.

3n the other hand, #uisa *ara sufered rom the ollowing wounds+

'3AT 3)T% I@(I@GA

. Wound,macerated,roughly circular in shape,about Q? inches in diameter with depressed-comminuted racture o the underlying bones, located at the right rontal region.

?. Wound, macerated, with a letter T shape, about ? inches in length, with depressed-comminutedracture o the underlying bone, located at the central portion o the rontal region.

>. Wound, macerated, roughly triangular in shape, about Q? inches in length with depressed-comminuted racture o the underlying bone, located at the right side o the nose.

6. Wound, macerated, roughly elongated in shape, about inch in length, with depressed-comminutedracture o the underlying bone, located at the le t eyebrow, lateral portion.

<. Wound, macerated, roughly oval in shape, about ? inches in length, with depressed-comminutedracture o the underlying bone, located at the le t lateral portion o the orehead.

9. Wound, macerated, roughly oval in shape, about ? inches in length, with depressed-comminutedracture o the underlying bone, located at the parietal region, le t.

. Wound, macerated, roughly elongated in shape about inch in length with depressed-comminutedracture o the underlying bone, located at the temporal region, le t.

0. Wound, macerated, roughly elongated in shape, about Q? inches in length with depressed-comminuted racture o the underlying bone, located at the temporal region, le t.

/. Wound, macerated, roughly stellate in shape, about ? inches in length, with depressed-comminutedracture o the underlying bone, located at the le t mandibular region.

:. Wound, macerated, roughly oval in shape, about lQ? inches in length, with depressed-comminutedracture o the underlying bone, located at the le t ace.

. Wound,incised,about l >Q6 inches in length, located at the le t upper portion o nec5, le t side.

?. Wound, macerated, roughly elongated in shape, about > inches in length with depressed-comminuted racture o the underlying bone, located at the right temporal region.

>. Contusion with hematoma, circular in shape, located laterally rom the right eyebrow.

6. Wound, macerated, roughly elongated in shape about ? inches in length with depressed-comminuted racture o the underlying bone, located at the occipital region, upper portion.

<. Wound, stabbed, about inch in length, located at the chest, central portion penetrating inside the



thoracic cavity involving heart and lung.

9. Wound, stabbed, about inch in length, located at the level o typhoid process penetrating thethoracic cavity involving the right lung, lower lobe. 7%=hibit C 8

C"KA% 3 (%"T2+ 2% 3))2"G%, I@T)"-C)"@I"# A%C. T3 K#TI'#% C3 I@KT%(-(%')%AA%()"CTK)% 3 T2% C)"@I"# $3@%A.

elicisimo *ara denied the charge that he was the one who 5illed his wi e, #uisa, together with herriend, "mparo $antigue. 2e interposed alibi as a de ense and testiDed that at the time the 5illings too5place at "lvinEs Canteen at alvar Atreet, 'uerto 'rincesa City, he was ast asleep with hisgrandchildren at his step-daughterEs house in 'ineda Aubdivision. The other accused, )eymundoFergara and )oberto $ernadas retracted their respective e=tra-judicial con essions admitting theirparticipation in the crimes charged and Identi ying their mastermind as the accused *ara duringproceedings be ore the In!uest iscal. They contested the admissibility o the e=tra-judicial con essionsand the subse!uent re- enactment o the crime on the ground that their participations in theseoccasions were not ree and voluntary and were without the beneDt o counsel.

The court below ruled that the e=tra-judicial con essions o the accused $ernadas and Fergara 7%=hibits@ and 3 , respectively8, together with the proo o corpus delicti o the special crime o robbery withhomicide established the guilt o the accused beyond moral certainty.

In their brie , the accused-appellants contended that the court a quo erred+

I

I@ C3@FICTI@G T2% "CCKA%( (%A'IT% T2% KTT%) "$A%@C% 3 "@J MI@( 3 %FI(%@C%, (I)%CT 3)CI)CK AT"@TI"#.

II

I@ "( ITTI@G T2% "##%G%( %LT)"-*K(ICI"# C3@ %AAI3@A 3 "CCKA%(-"''%##"@TA )%J K@(3F%)G")" "@( )3$%)T3 $%)@"("A W2IC2 W%)% T"M%@ T2)K 3)C% "@( WIT23KT $%@% IT 3C3K@A%#.

III

I@ "( ITTI@G T2% "##%G%( %LT)"-*K(ICI"# C3@ %AAI3@A 3 "CCKA%(-"''%##"@TA )%J K@(3F%)G")" "@( )3$%)T3 $%)@"("A "G"I@AT T2%I) C3-"CCKA%(-"''%##"@T %#ICIAI 3 *")".

IF

I@ I@(I@G T2% ')%A%@C% 3 C3@A'I)"CJ (%A'IT% T2% "$A%@C% 3 ')33 T2%)%3.

F

I@ "##3WI@G T2% '#"JI@G 3 "@ "##%G%( T"'%( C3@ %AAI3@.

FI

I@ "( ITTI@G T2% 'ICTK)%A, %L2A. T T3 T- ?> , W2IC2 W%)% @%F%) ')3'%)#J I(%@TI I%(.

"ll these assigned errors boil down to the issue o whether or not there is suHcient evidence as borneby the records to establish the guilt o the accused beyond reasonable doubt.

Aection ?:, "rticle IF o the Constitution provides+

@o person shall be compelled to be a witness against himsel . "ny person under investigation or thecommission o an ofense shall have the right to remain silent and to counsel, and to be in ormed o such right. @o orce, violence, threat, intimidation, or any other means which vitiates the ree will shallbe used against him. "ny con ession obtained in violation o this section shall be inadmissible inevidence.

There is no dispute that the con essions in these cases were obtained in the absence o counsel.



"ccording to the records, there was a waiver by the accused-appellants o their right to counsel.

Was the waiver valid

We are constrained to answer this !uestion in the negative.

$e ore the e=trajudicial con ession o appellant $ernadas was reduced to writing, ' c. 2enry %. 'ulga, inthe presence o our other police oHcers, made the ollowing 'asubali ollowed by the answer, 3po +

'"AK$"#I+ I5aw ay nasa ilalim ng isang pagsisiyasat at dahil dito ay ipinababatid namin sa iyo ang iyongmga 5arapatan na sa ilalim ng ating $agong Aaligang $atas ay i5aw ay may 5arapatang 5umuha ngisang manananggol o abogado ayon sa sarili mong pili mayroon 5a ring 5arapatan na hindi maaaringpiliting sumagot sa anumang itatanong sa iyo sa alinmang 2u5uman sa 'ilipinas. @auunawaan mo baang lahat ng mga ipinaliwanag namin sa iyo ngayon

A"G3T+ 3po.

#i5ewise, in the case o the accused Fergara, the oreword o s signed sworn statement reads+

T"@3@G+ arunong po ba 5ayong sumulat bumasa ng tagalog at umunawa ng wi5ang tagalog na siyanating gagamitin sa pagsisiyasat na ito

A"G3T+ @a5a5aunawa po a5o at na5a5abasa pero sa pagsulat ay hindi masyado.

'"#IW"@"G+ Mung gayon po ay ipinababatid 5o sa inyo ang inyong 5arapatan na 5ayo ay maaaringmanatiling tahimi5 5ung inyong nais, magbigay o tumangging magbigay ng inyong salaysay, maaari dinna 5ayo ay sumangguni muna sa isang abogado 5ung nais ninyo at ang lahat po ng inyong sasabihin aymaaaring gamiting pabor o laban sa inyo sa anumang 2u5uman dito sa ating 5apuluan ngayong alamna ninyo ang ilan sa inyong 5arapatan 5ayo po ba naman ay handa na ngayong magsalaysay 5ahit na5ayo ay wala pang abogadong 5aharap na siyang mangangalaga sa inyong 5arapatan at lahat po nginyong sasabihin ay pawang 5atutuhanan lamang

A"G3T+ 3po.

7AG(.8 )%J K@(3 F%)G")"

(%#" C)K4

'"TK@"J+ "5o si )eymundo Fergara dela Cru& ay nagsasaad na ipinaalam sa a5in ang a5ing 5arapatangmanatiling tahimi5, 5ung a5ing nanaisin, na ang lahat na a5ing sasabihin ay maaaring gamiting pabor olaban sa a5in at nalaman 5o rin na a5o ay maaaring 5umuha ng sarili 5ong abogado na siyangnangangalaga ng a5ing 5arapatan na 5ung hindi 5o 5ayang 5umuha ay bibigyan a5o ng pamahalaan.

@auunawaan 5o ang mga 5arapatang ito, handa at 5usang loob a5ong nagbibigay ng a5ing salaysayngayon, sa tanong at sagot na paraan. 2indi 5o na 5ailangan ang tulong ng isang abogado,nauunawaan 5o ang a5ing ginagawa, walang panana5ot, panana5it, panga5o, pabuya o anuman naginawa sa a5in upang a5o ay magsalaysay. Ito ay sarili 5ong 5agustuhan.

7AG(.8 )%J K@(3 F%)G")"

(%#" C)K4

This stereotyped advice appearing in practically all e=trajudicial con essions which are laterrepudiated has assumed the nature o a legal orm or model. 'olice investigators either automaticallytype it together with the curt 3po as the answer or as5 the accused to sign it or even copy it in theirhandwriting. Its tired, punctilious, D=ed, and artiDcially stately style does not create an impression o voluntariness or even understanding on the part o the accused. The showing o a spontaneous, ree,and unconstrained giving up o a right is missing.

Whenever a protection given by the Constitution is waived by the person entitled to that protection, thepresumption is always against the waiver. Conse!uently, the prosecution must prove with stronglyconvincing evidence to the satis action o this Court that indeed the accused willingly and voluntarily



submitted his con ession and 5nowingly and deliberately mani ested that he was not interested inhaving a lawyer assist him during the ta5ing o that con ession. That proo is missing in this case.

The records sustain the appellantsE contention that their e=trajudicial con essions bear clear earmar5so illegality and improbability.

The Aolicitor General gives the ollowing arguments or voluntariness+

"n e=tra-judicial con ession is generally presumed to have been voluntarily e=ecuted 7'eople v.CastaVeda, /> AC)" <98. The con essant carries the burden o convincing the trial judge that hisadmissions are involuntary or untrue 7'eople v. )amos, /6 AC)" 06?8.

The trial court in this case was not convinced that the e=trajudicial con essions o appellants were madeinvoluntarily. Consider the ollowing reasons or the courtEs re usal to lend credence to appellantsE claim+

7 8 "part rom appellantsE sel -serving claim no other evidence on record supports the allegation o involuntariness 7'eople v. Filla, /> AC)" 98.

7?8 3n the contrary, several prosecution witnesses testiDed that the con essions were voluntarily given.

7>8 "ppellantsE oral and written con essions given at various times to several investigating authorities,not to mention the public re-enactment o the crime itsel , did not vary and they revealed details onlythe assailants could have possibly 5nown 7'eople v. Ty Aui Wong, 0> AC)" ?<; 'eople v. $autista y"!uino, /? AC)" 69<8.

768 "ppellantsE con essions were corroborated by the e=istence o corpus delicti established byindependent evidence 7'eople v. rancisco, /> AC)" >< 8.

7<8 The claim o coercion cannot prevail over the testimony o the subscribing Dscal that said con essionwas voluntary 7'eople v. Caramonte, /6 AC)" <:8.

The People v. !asta>eda ruling applies to a crime committed be ore the $ill o )ights was amended toinclude Aection ?: on the right to remain silent and to counsel and to be in ormed o such right. Thepresumption that no one would declare anything against himsel unless such declarations were trueassumes that such declarations are given reely and voluntarily. The new Constitution, in e=presslyadopting the so-called -iranda v. Ari5ona 7>06 K.A. 6>98 rule, has reversed the presumption. The

prosecution must now prove that an e=trajudicial con ession was voluntarily given, instead o relying ona presumption and re!uiring the accused to ofset it. There would have been no need to amend thecenturies old provisions o the $ill o )ights and to e=pressly add the interdiction that no orce,violence, threat, intimidation, or any other means which vitiates the ree will shall be used against him7the person being investigated8 i the ramers intended us to continue applying the pre- / > or pre-amendment presumptions.

-iranda v. Ari5ona, in e=plaining the rule which the K.A. Aupreme Court adopted, states+

While the admissions or con essions o the prisoner, when voluntarily and reely made, have alwaysran5ed high in the scale o incriminating evidence, i an accused person be as5ed to e=plain hisapparent connection with a crime under investigation, the ease with which the !uestions put to himmay assume an in!uisitorial character, the temptation to press the witness unduly, to browbeat him i

he be timid or reluctant, to push him into a corner and to entrap him into atal contradictions, which isso pain ully evident . . . made the 7continental8 system so odious as to give rise to a demand or its totalabolition.

It is natural and to be e=pected that the police oHcers who secured the con essions in these casesshould testi y that the statements were voluntarily given. 2owever, the records show that theinterrogations were conducted incommunicado in a police-dominated atmosphere. When appellant$ernadas gave his con ession, his companions in the room were Dve police oHcers. The only peoplewith Fergara when he con essed were also police investigators.

We !uote some more passages rom -iranda?



"gain we stress that the modern practice o in-custody interrogation is psychologically rather thanphysically oriented. "s we have stated be ore, EAince !hambers v. $lorida, >:/, KA ?? N06 # ed 9, 9:A Ct 6 ?O, this Court has recogni&ed that coercion can be mental as well as physical, and that the bloodo the accused is not the only hallmar5 o an unconstitutional in!uisition.E %lackburn v. Alabama , >9 KA//, ?:9, 6 # ed ?d ?6?, ?6 , 0: A Ct ? 6 7 /9:8. Interrogation still ta5es place in privacy. 'rivacyresults in secrecy and this in turn results in a gap in our 5nowledge as to what in act goes on in theinterrogation rooms. " valuable source o in ormation about present police practices, however, may be

ound in various police manuals and te=ts which document procedures employed with success in thepast, and which recommend various other efective tactics. These te=ts are used by law en orcementagencies themselves as guides. It should be noted that these te=ts pro essedly present the mostenlightened and efective means presently used to obtain statements through custodial interrogation.$y considering these te=ts and other data, it is possible to describe procedures observed and notedaround the country.

The oHcers are told by the manuals that the Eprincipal psychological actor contributing to a success ulinterrogation is privacy+ being alone with the person under interrogation.E The eHcacy o this tactic hasbeen e=plained as ollows+

I at all practicable, the interrogation should ta5e place in the investigatorEs oHce or at least in a roomo his own choice. The subject should be deprived o every psychological advantage. In his own homehe may be conDdent, indignant, or recalcitrant. 2e is more 5eenly aware o his rights and morereluctant to tell o his indiscretions or criminal behavior within the walls o his home. oreover hisamily and other riends are nearby, their presence lending moral support. In his own oHce, the

investigator possesses all the advantages. The atmosphere suggests the invincibility o the orces o thelaw.

To highlight the isolation and un amiliar surroundings, the manuals instruct the police to display an airo conDdence in the suspectEs guilt and rom outward appearance to maintain only an interest inconDrming certain details. The guilt o the subject is to be posited as a act. The interrogator shoulddirect his comments toward the reasons why the subject committed the act, rather than court ailure byas5ing the subject whether he did it. #i5e other men, perhaps the subject has a bad amily li e, had anunhappy childhood, had too much to drin5, had an unre!uited desire or women. The oHcers areinstructed to minimi&e the moral seriousness o the ofense, to cast blame on the victim or on society.

These tactics are designed to put the subject in a psychological state where his story is but anelaboration o what the police purport to 5now already-that he is guilty. %=planations to the contrary aredismissed and discouraged.

The te=ts thus stress that the major !ualities an interrogator should possess are patience andperseverance. 3ne writer describes the eHcacy o these characteristics in this manner+

In the preceding paragraphs emphasis has been placed on 5indness and stratagems. The investigatorwilt however, encounter many situations where the sheer weight o his personality wig be the decidingactor. Where emotional appeals and tric5s are employed to no avail he must rely on an oppressiveatmosphere o dogged persistence. 2e must interrogate steadily and without relent, leaving the subjectno prospect o surcease. 2e must dominate his subject and overwhelm him with his ine=orable will toobtain the truth. 2e should interrogate or a spell o several hours pausing only or the subjectEsnecessities in ac5nowledgment o the need to avoid a charge o duress that can be technicallysubstantiated. In a serious case, the interrogation may continue or days, with the re!uired intervals orood and sleep, but without respite rom the atmosphere o domination. It is possible in this way toinduce the subject to tal5 without resorting to duress or coercion. The method should be used onlywhen the guilt o the subject appears highly probable. E 7>06 KA at pp. 660-6< 8

The cited police manuals state that the above methods should be used only hen the guilt of thesub6ect appears highly probable. "s earlier stated, the investigators in the cases now be ore us appearto have been convinced that the accused-appellants were the culprits. @onetheless, the evils o



any indication o sorrow 7TA@, arch ? , / /, pp. > >-> 68.

The hammer used in the 5illing is an instrument with which appellant *ara is amiliar. It was provenduring the trial o the case that the hammer with the letter " on its handle which was one o theinstruments used in the perpetration o the crime belonged to #uisa *ara who had 5ept it at "ileenEsCanteen where her husband, appellant *ara helped as coo5.

)ule >>, Aection < o the )ules o Court provides+

!ircumstantial evidence, hen su@cient. Circumstantial evidence is suHcient or conviction i +

7a8 There is more than one circumstance;

7b8 The acts rom which the in erences are derived are proven; and

7c8 The combination o all the circumstances is such as to produce a conviction beyond a reasonabledoubt. 7Aee 'eople v. (uero, >9 AC)" < <8.

Circumstantial evidence, as a basis or conviction o crime, should be acted on and weighed with greatcaution, particularly where the crime is heinous and the penalty is death, as in the instant cases. Indetermining the suHciency o circumstantial evidence to support a conviction, each case is to bedetermined on its own peculiar circumstances and all o the acts and circumstances are to beconsidered together as a whole, and, when so considered, may be suHcient to support a conviction,although one or more o the acts ta5en separately would not be suHcient or this purpose. 7?> C*A p.<<<8. @o general rule has been ormulated as to the !uantity o circumstantial evidence which wigsuHce or any case, but that matters not. or all that is re!uired is that the circumstances proved mustbe consistent with each other, and at the same time inconsistent with the hypothesis that he isinnocent and with every other rational hypothesis e=cept that o guilt. 7'eople v. Contante, ? AC)"9<>8.

The re!uirements or circumstantial evidence to sustain a conviction are present in this case. Thea orementioned circumstances constitute an unbro5en chain leading to one air and reasonableconclusion which points to the guilt o the accused !!!jara beyond reasonable doubt 7Aee KA v. Fillos, 9'hil. < :; 'eople v. Aubano, > 'hil. 9/?8. ere denials o the accused as to his participation in thecrime are only sel -serving negative evidence which cannot outweigh circumstantial evidence clearly

establishing his active participation in the crime.

The de ense o alibi given by the accused *ara is wea5. "side rom himsel , the only person whovouched or his presence at some place away rom the scene o the crime was his stepdaughter romwhom he had sought abode. 2ence, the alibi is made more dubious considering that no other crediblepersons were presented who would, in the natural order o things be best situated to support thetendered alibi 7'eople v. Cabanit, >/ AC)" /6, citing 'eople v. $rioso, > AC)" >>9; 'eople v.$agasala, >/ AC)" ?>9; 'eople v. Carino, << AC)" < 98. ore importantly, the de ense o alibi cannotprosper because it is not enough to prove that de endant was somewhere else when the crime wascommitted. 2e must, li5ewise, demonstrate that it was physically impossible or him to have been atthe scene o the crime at that time 7'eople v. "lcantara, >> AC)" 0 ?8. Auch proo is wanting in thiscase.

The 5illing o "mparo $antigue was mar5ed by treachery and evident premeditation. The trial courtnoted recidivism inso ar as elicisimo *ara, previously convicted o homicide, was concemed togetherwith dwelling and nighttime. 2owever, the supposed robbery o the piggy ban5 and $uddha ban5 isproved only by the e=tra-judicial statements ound inadmissible. The ofense against $antigue wassimple murder. Inso ar as the parricide case is concerned against accused *ara, the lower court did noterr in Dnding guilt as having been established beyond reasonable doubt.

W2%)% 3)%, the judgment o the lower court is 3(I I%( as ollows+

In Crim. Case @o. ?<96, the accused $ernadas and Fergara are "C1KITT%( o the crime o )3$$%)J



with 23 ICI(% on the ground o reasonable doubt. "ccused *ara is C3@FICT%( o the crime o K)(%)and is sentenced to sufer the penalty o death

In Crim. Case @o. ?<9<, the accused $ernadas and Fergara are li5ewise "C1KITT%( o the crime o 23 ICI(% on the ground o reasonable doubt. "ccused *ara is C3@FICT%( o the crime o '"))ICI(%and is sentenced to sufer the penalty o death.

Considering. however, that the accused *ara is now over : years o age, the penalty o death is

lowered to reclusion perpetua.In both cases, accused *ara is ordered to indemni y the heirs o the deceased "mparo $antigue and#uisa *ara in the amount o T2I)TJ T23KA"@( '%A3A 7'>:,:::.::8, respectively.

A3 3)(%)%(.

G.R. No. L0 !!!3 A#$#%& 6, 19!"

THE PEOPLE OF THE PHILIPPINES, petitioner,

vs.

HON. AL'ERTO . SENERIS, A% D*%& *;& J#-$ , Co# & o: F* %& I %&a ; , ' a ;8 II, S* & &8 J#-*;*a) D*%& *;&, /a oa $a C*&y a - PILAR ANGELES DE PIMENTEL, respondents.

MA(ASIAR, J.:

The legal issue posed in this special civil action or certiorari , with prayer or a writ o preliminaryinjunction, spawned by the "ugust 6, / 0 order o respondent judge in Criminal Case @o. <: orparricide against therein accused 'ilar "ngeles de 'imentel, hereina ter re erred to as privaterespondent, is the admissibility in evidence o the testimony o a prosecution witness in the saidcriminal case who dies be ore completion o his cross-e=amination. That issue is crucial to the ate oprivate respondent, considering that the deceased prosecution witness ... is the most vital and the onlyeyewitness available to the prosecution against respondent 'ilar "ngeles de 'imentel or thecommission o the gruesome crime o parricide ... 7p. :, rec.8.

The actual bac5ground o the action is undisputed.



3n ebruary 0, / 0, "ssistant 'rovincial iscal Camilo %. Tamin, who was then on oHcial detail with theoHce o the City iscal, 4amboanga City, Dled with the Court o irst Instance, Ai=teenth *udicial (istrict,4amboanga City, an amended in ormation or parricide in Criminal Case @o. 6?, charging herein

private respondent as principal by inducement, -ario Nemenio y delos *antos and *alim #oe as principals by direct participation and -oises Andaya y 9ulkanain, as accomplice , in the atal stabbing onAeptember 9, / in 4amboanga City o %duardo 'imentel y 3rario, the law ul husband o privaterespondent. The amended in ormation reads+

That on or about Aeptember 9, / , in the City o 4amboanga, 'hilippines, and within the jurisdictiono this Court, the above-named accused 'ilar "ngeles de 'imentel, with deliberate intent to 5ill herhusband, %duardo 'imentel y 3rario, with whom she was united in law ul wedloc5, did then and there,will ully, unlaw ully and eloniously, induce and ofer a sum o money as consideration or pri&e to saidaccused ario @emenio y delos Aantos and Aalim (oe to 5ill her said law ully wedded husband %duardo'imentel y 3rario, and because and on account o said promised consideration or pri&e which wasaccepted, the said accused ario @emenio y delos Aantos and Aalim (oe, did then and there, will ullyand eloniously assault, attac5 and stab with a 5ni e with which they were conveniently provided, theperson o said %duardo 'imentel y 3rario, thereby inBicting upon the latter mortal wound which directlycaused his death; that the above-named accused oises "ndaya y *ul5anain although without havingparticipated directly in the commission o the ofense above- described, too5 part prior to its

commission by then and there acting as the contact man in the e=ecution o their plot to 5ill said%duardo 'imentel y 3rario.

Contrary to law 7p. >, rec.8

3n *anuary , / 0, private respondent, assisted by her counsel, moved and was granted a separatetrial 7p. 9, rec.8.

3n ebruary ??, / 0, the accused ario @emenio y delos Aantos, assisted by his counsel de o cio ,entered on arraignment a plea o guilty. )espondent judge therea ter rendered judgment convictingaccused ario @emenio y delos Aantos o murder U !ualiDed by the circumstance o pri&e and reward-and not o parricide as charged in the in ormation; because he ... had no relation whatsoever to thedeceased %duardo 'imentel ... and appreciating the mitigating circumstances o voluntary plea o

guilty and lac5 o instruction and education, imposed on him the indeterminate penalty o eight 708years o prision mayor as the minimum, to ourteen 7 68 years and eight 708 months o reclusiontemporal as the ma=imum; to indemni y the heirs o the deceased %duardo 'imentel the amount o' ?,:::.:: and to pay one- ourth 7X8 o the costs o the proceedings 7pp. <- /, rec.8.

Immediately a ter promulgation o judgment, accused ario @emenio y delos Aantos ofered to testi yagainst his co-accused, herein private respondent, in her separate trial earlier granted by therespondent judge in the same criminal case, now numbered <:. "llowed, he testiDed as prosecutionwitness on ebruary ?0, arch 9, and arch ??, / 0 and as summari&ed by the petitioner, histestimony on direct e=amination contained in seventy-si= 7 98 pages o transcripts o stenographicnotes 7pp. ? -66, < -96, rec.8, is to the efect ...that he and Aalim (oe were hired by respondent 'ilar"ngeles de 'imentel, or the consideration o '>,:::.:: to 5ill %duardo 'imentel, husband o respondent'ilar "ngeles de 'imentel, in the evening o Aeptember 9, / , in the latterEs residence in 4amboangaCity, and that it was respondent 'ilar "ngeles de 'imentel hersel who actually pointed out the victim%duardo 'imentel to the witness, who then stabbed the said victim to death...That he did not 5now theIdentity o the victim %duardo 'imentel at the time o the stabbing in the evening o Aeptember 9, / .2e was guided solely by respondent 'ilar "ngeles de 'imentel, who pointed out her victim spouse tohim ... 7allegation @o. 6, petition, pp. 6-<, rec.8.

" ter the prosecution had terminated on arch ??, / 0 the direct e=amination o its witness ario@emenio y delos Aantos, counsel or private respondent moved or the holding in abeyance o the cross-e=amination o the said prosecution witness until a ter he 7counsel8 shall have been urnished with thetranscripts o the stenographic notes o the direct e=amination o said prosecution witness 7p. 6 , TA@,



arch ??, / 0, p. 96, rec.8; allegation @o. <, petition, p. <, rec.8. The same was granted by therespondent judge who ordered the resumption o the hearing on "pril /, / 0 7pp. 96, /6, :0, rec.8.

$ut on "pril /, / 0, a oresaid prosecution witness ailed to appear because he was not served with asubpoena 7p. :0, rec.8. Conse!uently, the hearing was reset or *une , / 0 7 ibid .8

3n *une , / 0, counsel or private respondent commenced his cross- e=amination o prosecutionwitness ario @emenio y delos Aantos, which cross-e=amination however was not completed on that

session or lac5 o material time, thus+"TTJ. C"#F%@T3+

I reserve my right to cross-e=amine the witness urther.

C3K)T

)eservation to continue the cross-e=amination is granted.

3)(%)+ or lac5 o material time, as prayed or and upon agreement o the parties todayEs hearing ishereby adjourned and to be resumed on *uly >, / 0 at 0+>: oEcloc5 in the morning 7p. 06, rec.8.

"ccording to the petition, the uncompleted cross-e=amination reduced in D ty-three 7<>8 pages otranscripts o stenographic notes 7pp. 9<-06, rec.8 had already ... touched on the conspiracy e=isting

among Aalim (oe, witness ario @emenio and respondent 'ilar "ngeles de 'imentel to 5ill %duardo'imentel, in the latterEs residence in 4amboanga City in the evening o Aeptember 9, / , and also onthe actual stabbing by witness ario @emenio o the victim %duardo 'imentel who was pointed out tothe witness-5iller by his wi e, respondent 'ilar "ngeles de 'imentel ... 7p. , rec.8. This is not disputedby private respondent.

Continuation o the cross-e=amination was, as a orestated, set or *uly >, / 0 at 0+>: oEcloc5 in themorning.

2owever, prosecution witness ario @emenio y delos Aantos was shot dead by the Integrated @ational'olice patrols on *une ? , / 0 while allegedly escaping rom the Aan )amon 'rison and 'enal arm,4amboanga City, where he was then serving his sentence. Conse!uently, the completion o his cross-e=amination became an impossibility.

3n *uly ?:, / 0, petitioner, without any motion on the part o the de ense or the stri5ing out o thedeceased witnessEs testimony, Dled with the respondent court a motion praying or a ruling on theadmissibility o the testimony o deceased witness ario @emenio y delos Aantos.

3n "ugust 6, / 0, respondent judge issued an order declaring as inadmissible the entire testimony othe deceased witness ario @emenio y delos Aantos on the principal ground ... that the de ense wasnot able to complete its cross-e=amination o said witness ... , relying on the case o 3rtigas, *r. vs.#u thansa, etc., #-?0 >, *une >:, / <, 96 AC)", pp. 9 :,9>9-> 8.

2ence, this action, to which W% gave due course on (ecember 6, / 0, a ter considering privaterespondentEs comment as well as those o the Aolicitor General and o the respondent judge who wasre!uired to Dle one. 3n even date, W% li5ewise issued a temporary restraining order ... efectiveimmediately and until urther orders rom this Court enjoining respondent (istrict *udge rom continuingwith the trial o Criminal Case @o. <: 7 6?8 entitled 'eople o the 'hilippines, plaintif, versus 'ilar"ngeles de 'imentel, accused, in the Court o irst Instance o 4amboanga City, $ranch II.

'etitioner contends that respondent judge gravely abused his discretion in ruling as inadmissible thetestimony o prosecution witness ario @emenio y delos Aantos.

W% agree.

I

. The constitutional right o con rontation, which guarantees to the accused the right to cross-e=amine



the witnesses or the prosecution, is one o the most basic rights o an accused person under oursystem o justice. It is a undamental right which is part o due process not only in criminal proceedingsbut also in civil proceedings as well as in proceedings in administrative tribunals with !uasi-judicialpowers 7Aavory #uncheonette vs. #a5as anggagawang 'ilipino, et al., 9? AC)" ?<0 N / <O8.

In almost e=actly the same language, both the />< and / > Constitutions secured it, thus+ In allcriminal prosecutions, the accused ... shall enjoy the right ... to meet the witnesses ace to ace ...7Aection /, "rt. IF, $ill o )ights, / > Constitution; Aection , "rt. III, />< Constitution8. %choing thesame guarantee, Aection I 7 8 o )ule < o the )evised )ules o Court provides that in all criminalproceedings the de endant shall have the right to be con ronted at the trial by, and to cross- e=aminethe witnesses against him. Constitutional con rontation re!uirements apply speciDcally to criminalproceedings and have been held to have two purposes; Drst and primarily, to secure the opportunity ocross-e=amination, and secondarily, to obtain the beneDt o the moral impact o the courtroomatmosphere as it afects the witnesses demeanor 7? "m *ur ?d >9:8. Atated otherwise, it insures thatthe witness will give his testimony under oath, thus deterring lying by the threat o perjury charge; itorces the witness to submit to cross-e=amination, a valuable instrument in e=posing alsehood andbringing out the truth; and it enables the court to observe the demeanor o the witness and assess hiscredibility 7Cali ornia v. Green, >>/ K.A. < N / :O8.

?. $ut while the right to con rontation and cross-e=amination is a undamental right, W% have ruled thatthe same can be waived e=pressly or implied by conduct amounting to a renunciation o the right ocross-e=amination 7Aavory #uncheonettee vs. #a5as ng anggagawang 'ilipino, et al., supra , p. ?</,citing K.A. v. "tanacio, 9 'hil. 6 > N /:9O; 'eople vs. dela Cru&, <9 AC)" 06, / N / 6 8. The conduct oa party which may be construed as a implied waiver o the right to cross-e=amine may ta5e variousorms. $ut the common basic principles underlying the application o the rule on implied waiver is thatthe party was given the opportunity to con ront and cross-e=amination an opposing witness but ailed tota5e advantage o it or reasons attributable to himsel alone. Thus, where a party has had theopportunity to cross-e=amine an opposing witness but ailed to avail himsel o it, he necessarily or eitsthe right to cross-e=amine and the testimony given on direct e=amination o the witness will bereceived or allowed to remain in the record 7Aavory #uncheonette vs. #a5as ng aggagawang 'ilipino,et al., supra , citing rancisco, )evised )ules o Court, Fol. on %vidence, p. 0<>, in turn citing 'eople vs.

Cole, 6> @.J. <:0-< ? and $radley vs. iric5, / @.J. ?/>; see alo ?/ "m. *ur. ?d 6/8.3n the other hand, when the cross-e=amination is not and cannot be done or completed due to causesattributable to the party ofering the witness, as was the situation in the #u thansa German "irlines case796 AC)" 9 : N / <O8 relied upon by respondent judge, the uncompleted testimony is thereby renderedincompetent and inadmissible in evidence. W% emphasi&ed in the said case that NTOhe right o a partyto cross-e=amine the witness o his adversary is invaluable as it is inviolable in civil cases, no less thanthe right o the accused in criminal cases. The e=press recognition o such right o the accused in theConstitution does not render the right o parties in civil cases less constitutionally based, or it is anindispensable part o the due process guaranteed by the undamental law. Aubject to appropriatesupervision by the judge in order to avoid unnecessary delays on account o its being unduly protractedand to needed injunctions protective o the right o the witness against sel -incrimination and

oppressive and unwarranted harassment and embarrassment, a party is absolutely entitled to a ullcross-e=amination as prescribed in Aection 0 o )ule >? ... Kntil such cross-e=amination has beenDnished, the testimony o the witness cannot be considered as complete and may not, there ore beallowed to orm part o the evidence to be considered by the court in deciding the case 7p. 9> 8.2owever, W% li5ewise therein emphasi&ed that where the right to cross e=amine is lost wholly or in partthrough the ault o the cross-e=aminer, then the testimony on direct e=amination may be ta5en intoaccount; but when cross-e=amination is not and cannot be done or completed due to causesattributable to the party ofering the witness, the uncompleted testimony is thereby renderedincompetent 7p. 9>98



>. The efects o absence o and incomplete cross-e=amination o witness on the admissibility inevidence o his testimony on direct e=amination has been e=tensively discussed thus+ "s a generalrule, the testimony o a witness, given on direct e=amination, should be stric5en where there is not anade!uate opportunity or cross-e=amination, as where the witness by reason o his death, illness, orabsence cannot be subjected to cross-e=amination. "lthough the contrary has been held 7Acott v.cCann, ?6 ". <>9, 9 d. 6 8, the testimony o a witness, given on direct e=amination, should bestric5en where there is not an ade!uate opportunity or cross-e=amination 7@ehring v. Amith, 6/ @.W. ?d

0> , ?6> Iowa ??<8, as where the party against whom he testiDed is, through no ault o his own,deprived o the right to cross-e=amine him by reason o his death 72enderson v. Twin alls County 0: '.?d 0: , </ Idaho / ; Twin alls County, Atate o Idaho v. 2enderson, </ A. Ct. 6/, >:< K.A. <90, 0> #.%d. ><08, or as a result o the illness o the witness or absence, or a mistrial ordered. 2he directtestimony of a itness ho dies before conclusion of the cross+e<amination can be stricken only insofar as not covered by the cross+e<amination 7Curtice v. West, ? @JA <: , <: 2un 6 , aHrmed ?6 @.%. ://,? @.J. 9/98, and absence of a itness is not enough to arrant striking his testimony for failure toappear for further cross+e<amination here the itness has already been su@ciently cross+e<amined 7#ew Choy v. #im Aing ? 9 '. 000, ?< Wash 9> 8, or the matter on which urther cross-e=amination issought is not in controversy 7 supra 8. It has been held that a re eree has no power to stri5e thee=amination o a witness on his ailure to appear or cross-e=amination where a good e=cuse is given 7In

re Croo5s, ?> 2un 9/98 N/0 C*A ?9- ? , %mphasis suppliedO.oreover, NIO one is deprived o the opportunity o a cross-e=amination without ault upon his part, asin the case o the illness or death o a witness a ter direct e=amination, it is generally held that he isentitled to have the direct testimony stric5en rom the record. This doctrine rests on the common lawrule that no evidence should be admitted but what was or might be under the e=amination o bothparties, and that e<parte statements are too uncertain and unreliable to be considered in theinvestigation o controverted acts 7Wray vs. Atate, <6 "la >9, 6< Ao 9/ ; 'eople vs. anchetti, ?/ Cal.?d 6<?, < '?d <>>; ". 2. "ngerstein, Inc. vs. *an5ows5i, << (el >:6, 0 "?d 0 ; @ehring vs. Amith,?6> Iowa ??<, 6/ @W?d 0> ; Citi&ens $an5 Y Trust Co. vs. )eid otor Co. ? 9 @C 6>?, < A% ?d > 08. Ithas been held, however, that the trial court did not abuse its discretion in re using to discharge the jurywhere the state witness collapsed be ore cross- e=amination was completed, it being shown that nomotion to strike the testimony as made, that it was not indicated what urther in ormation was soughtto be produced by urther cross-e=amination, and that the witnessE testimony was largely cumulative7$an5s vs, Commonwealth, > ? My ?/ , ?? AW ?d 6?98 N0 "m *ur ?d 6 6O.

6. Wigmore, eminent authority on evidence, opined that+

=== === ===

... here the death or illness prevents cross+e<amination under such circumstances that noresponsibility of any sort can be attributed to either the itness of his party, it seems harsh measure tostrike out all that has been obtained on the direct e<amination. 'rinciple re!uires in strictness nothingless. %ut the true solution ould be to avoid any in:e<ible rule , and to leave it to the trial judge toadmit the direct e=amination so ar as the loss o cross-e=amination can be shown to him to be not inthat instance a material loss. Courts difer in their treatment o this diHcult situation; e=cept that by

general concession a cross+e<amination begun but un nished su ces if its purposes have beensubstantially accomplished

=== === ===

7Fol. II, '. :0, %mphasis supplied8.

II

. )espondent judgeEs ull reliance on the #u thansa German "irlines case cannot be sustained. To besure, while the cross-e=amination o the witness in the a oresaid #u thansa case and that o the witnessin the present action were both uncompleted, the causes thereo were diferent in that while in the



present case it was the death o the witness, in the #u thansa case, it was the unjustiDed andune=plained ailure o #u thansa to present its witness on the scheduled date or his cross-e=aminationwhich had already been preceded by several postponements initiated by #u thansa itsel , thus deprivingthe other party the opportunity to complete the cross-e=amination o said witness. Conse!uently, thisCourt therein correctly ruled as inadmissible the testimony o the said witness on the principle that ...when cross-e=amination is not and cannot be done or completed due to causes attributable to the party o3ering the itness , the uncompleted testimony is thereby rendered incompetent ... 7 supra , at p. 9>98.

"s clear as day, the #u thansa ruling there ore applies only i there is a Dnding that the cause or non-completion o the cross-e=amination o a witness was attributable to the very party ofering the saidwitness. Conse!uently, the same is inapplicable to the instant action as the cause or the non-completion o the cross-e=amination o petitionerEs witness was a ortuitous event as he was 5illed, asper the pleadings submitted in this action, by the law en orcers 7Integrated @ational 'olice 'atrols8 a terhis escape rom prison. "s a matter o act, respondent judge, in his !uestioned order, did not lay anybasis or the application o the #u thansa ruling as he ailed to ma5e any Dnding that the non-completion was due to petitioner, the party ofering the witness, whose testimony he declared asinadmissible in evidence. " reading o the !uestioned order reveals that respondent judge ruled asinadmissible said !uestioned testimony mainly because private respondent can no longer Dnish hercross-e=amination; hence incomplete. 2owever, private respondent advanced in this action the cavalier

theory that the ailure o her counsel to complete his cross-e=amination o petitionerEs witness was dueto the ault o or was attributable to the petitioner, 'eople o the 'hilippines, because it was the veryagents o Atate who 5illed its own witness; hence, ma5ing the !uestioned testimony o petitionerEswitness inadmissible, per the #u thansa ruling.

The contention does not deserve serious consideration. There was no Dnding nor any showing as thesame is ar etched or inconceivable that the 5illing o the witness o petitioner by its own agents was ill-motivated. The prosecution did not order the shooting o the government witness. 2e was shot whileescaping rom prison. It is petitionerEs cause which will possibly sufer rom said death; not the cause oprivate respondent. It may be true that the escape o the said witness and his conse!uent death maybe attributable to the negligence o petitionerEs agents; but such negligence may not bind the petitioneras to pre-judicially afect its cause and interest U the prosecution o criminal ofenses U by reason othe generally accepted principle that the Atate is not bound by the negligence or tortious acts o itsagents. "s the cause o non-completion was, as a oresaid, beyond the control o the prosecution,respondent judgeEs !uestioned order cannot be sustained on the basis o the #u thansa ruling which, asa orestated, was principally anchored on the Dnding that the cause o the non-completion o the cross-e=amination o the therein witness was attributable to the very party ofering him as a witness.

?. 3n the other hand, W% Dnd no merit in petitionerEs contention that the testimony o its deceasedwitness is admissible on the ground that private respondent had waived her right to cross-e=amine thewitness and that the cause o non-completion was attributable to said private respondent. "s correctlypointed out by private respondent and sustained by respondent judge, petitioner is not justiDed inattributing ault to her 7private respondent8 and in contending that she is deemed to have partly lostalready the right o cross-e=amination by not availing o the right to cross-e=amine the witness ario@emenio on arch ??, / 0 or right a ter his direct e=amination was closed and delaying until the lapseo two and a hal 7?R8 months therea ter be ore ma5ing such cross-e=amination; because while it istrue that her counsel did not immediately start with his cross-e=amination o the deceased witness onarch ??, / 0, he did avail, however, o such right on the same day by initially obtaining anopportunity to ma5e preparations or an efective e=ercise thereo considering the nature o the case Ua capital one U and the length o the direct e=amination; three sittings on three diferent dates or onebruary ?0, / 0, arch 9, / 0 and arch ??, / 0. 2ence, there was no waiver o her right o cross-e=amination. oreover, the de erment o the cross-e=amination o the witness re!uested by privaterespondent on arch ??, / 0 was approved by respondent judge without any objection on the part opetitioner 7pp. 6<, 69, 96, rec.8. "nd on the date or the cross-e=amination o the witness ario



@emenio or on "pril /, / 0, counsel or private respondent ailed to cross-e=amine the said witnessnot o his own design but because said witness ailed to appear on that date or the reason that due tothe oversight o the courtEs personnel the subpoena or said witness was not served on him at the Aan)amon 'rison and 'enal arm 7pp. /:, :0, rec.8. "nd respondent judge had to re-set the hearing or thecross-e=amination o the witness by the private respondent only to *une , / 0 because o the actthat respondent judge too5, with the approval o the Aupreme Court, his summer vacation the wholemonth o ay, / 0.

It is thus apparent that no ault can be imputed to the private respondent or the length o time thatelapsed be ore her counsel was able to commence his cross-e=amination o the witness. "nd privaterespondentEs counsel was not able to complete his cross-e=amination o the witness on *une , / 0 orlac5 o material time by reason o which and upon agreement o the parties the hearing was adjournedand ordered resumed on *uly >, / 0 7p. 06, rec.8.

It appears, there ore, that the situation is one whereby the cause o non-completion o the cross-e=amination o the deceased witness was attributed neither to the ault o petitioner nor the privaterespondent. Conse!uently, the admissibility or inadmissibility o the testimony o the said witnesscannot be resolved on the basis o the rule enunciated in the #u thansa case.

III

There is merit in the contention o the petitioner that the !uestioned testimony o its deceased witnessis admissible in evidence because private respondentEs counsel had already ... rigorously ande=tensively cross-e=amined witness ario @emenio on all essential elements o the crime charged7parricide8, all o which have been testiDed upon by said witness in his direct e=amination-in-chie , andconse!uently, the cross-e=amination-in- chie , has already been concluded.

The cross-e=amination was completed inso ar as the essential elements o the crime charged Uparricide, act o killing+ is concerned. What remained was merely the cross-e=amination regarding theprice or reward, which is not an element o parricide, but only an aggravating circumstance 7par. ,"rt. 6, )evised 'enal Code8.

"s elaborated by petitioner in its memorandum+

The crime charged in the case at bar is 'arricide under "rticle ?69 o the )evised 'enal Code. The elements o the crime o 'arricide are that a person was 5illed; that the 5illing was intentionallycaused by the accused; and that the victim is a parent or child, whether legitimate or illegitimate, or thelaw ul spouse, or legitimate ascendant or descendant o the accused. 3nce these acts are establishedbeyond reasonable doubt, conviction is warranted 7Aee "!uino, The )evised 'enal Code, /9 %d., Fol.II, p. 8.

The deceased %duardo 'imentel has been suHciently shown to be the law ul husband o privaterespondent 'ilar 'imentel by means o the marriage contract e=ecuted between them on ay 0,/ ... mar5ed as %=hibit E)E or the prosecution ...

The cross-e=amination o witness ario @emenio by the counsel or private respondent on *une , / 0touched on the conspiracy, and agreement, e=isting among Aalim (oe, witness ario @emenio andprivate respondent 'ilar 'imentel to 5ill %duardo 'imentel, in the latterEs residence in 4amboanga City inthe evening o Aeptember 9, / , and also on the actual stabbing by witness ario @emenio o thevictim %duardo 'imentel who was pointed out to the witness-5iller by his wi e, the private respondent'ilar 'imentel hersel ... The matter o consideration or price o '>,:::.::, which both the public andprivate respondents maintain was not touched in the cross-e=amination o witness ario @emenio, isnot an essential element o the crime o parricide. 'rice or consideration is merely an aggravatingcircumstance o the crime charged, not an essential element thereo . The ailure to touch the same inthe cross-e=amination would not at all afect the e=istence o the crime o parricide. urthermore, thereis no showing or even the slightest indication that the witness or his testimony would be discredited i



he was cross-e=amined on the promised consideration. The probability is rather very great that thewitness would only have conDrmed the e=istence o the promised consideration were he cross-e=amined on the same.

rom the oregoing discussion, it is submitted that the rigorous and searching cross-e=amination owitness ario @emenio on *une , / 0, practically concluded already the cross-e=amination-in-chie , orhas already substantially accomplished the purpose o the cross-e=amination, and there ore, the ailureto pursue the privilege o urther cross-e=amination, would not adversely afect the admissibility o thedirect testimony o said witness anymore 7pp. </ 9?, rec.8.

'rivate respondent did not dwell on the a oresaid points in her memorandum.

$ecause the cross-e=amination made by the counsel o private respondent o the deceased witness wase=tensive and already covered the subject matter o his direct testimony as state witness relating to theessential elements o the crime o parricide, and what remained or urther cross-e=amination is thematter o price or reward allegedly paid by private respondent or the commission o the crime, which ismerely an aggravating circumstance and does not afect the e=istence o the ofense charged, therespondent judge gravely abused his discretion in declaring as entirely inadmissible the testimony othe state witness who died through no ault o any o the parties be ore his cross-e=amination could beDnished.

W2%)% 3)%, T2% "KGKAT 6, / 0 3)(%) 3 T2% )%A'3@(%@T *K(G% IA 2%)%$J A%T "AI(%; T2%)%AT)"I@I@G 3)(%) 3 (%C% $%) 6, / 0 IAAK%( $J T2IA C3K)T IA 2%)%$J #I T%(; "@()%A'3@(%@T *K(G% 3) 2IA AKCC%AA3) IA "CC3)(I@G#J 3)(%)%( T3 ')3C%%( WIT2 T2% T)I"# 3C)I I@"# C"A% @3. <: 7 6?8 "@( T3 "( IT "@( C3@AI(%) I@ (%CI(I@G T2% C"A% T2% T%ATI 3@J3 T2% (%C%"A%( WIT@%AA ")I3 @% %@I3 y (%#3A A"@T3A %LC#K(I@G 3@#J T2% '3)TI3@

T2%)%3 C3@C%)@I@G T2% "GG)"F"TI@G CI)CK AT"@C% 3 ')IC% 3) )%W")( W2IC2 W"A @3TC3F%)%( $J T2% C)3AA-%L" I@"TI3@. @3 C3ATA.

2eehankee '!hairman), 4uerrero, #e !astro and -elencio+Herrera, 99., concur.

$ernande5, 9., is on leave.



G.R. No. L037933 A *) 15, 19!!

FISCAL CELSO M. GIMENE/ a - FEDERICO '. MERCADO, petitioners,

vs.

HON. RAMON E. NA/ARENO, P %*-* $ J#-$ , Co# & o: F* %& I %&a ; o: C # a - TEODORO



DE LA EGA, JR., respondents.

2he *olicitor 4eneral for petitioners.

8ictor de la *erna for respondents.

GANCA CO, J.:

Two basic issues are raised or 3ur resolution in this petition or certiorari and mandamus. The Drst iswhether or not a court loses jurisdiction over an accused who a ter being arraigned, escapes rom thecustody o the law. The other issue is whether or not under Aection /, "rticle IF o the / >Constitution, an accused who has been duly tried in absentia retains his right to present evidence on hisown behal and to con ront and cross-e=amine witnesses who testiDed against him.

The ollowing acts are not in dispute+

3n "ugust >, / >, Aamson Auan, "le= 'otot, )ogelio ula, ernando Cargando, )ogelio $aguio and theherein private respondent Teodoro de la Fega *r., were charged with the crime o murder.

3n "ugust ??, / > all the above-named. accused were arraigned and each o them pleaded not guiltyto the crime charged. ollowing the arraignment, the respondent judge, 2on. )amon %. @a&areno, set

the hearing o the case or Aeptember 0, / > at +:: oEcloc5 in the a ternoon. "ll the acusedincluding private respondent, were duly in ormed o this.

$e ore the scheduled date o the Drst hearing the private respondent escaped rom his detention centerand on the said date, ailed to appear in court. This prompted the Dscals handling the case 7thepetitioners herein8 to Dle a motion with the lower court to proceed with the hearing o the case againstall the accused praying that private respondent de la Fega, *r. be tried in absentia invo5ing theapplication o Aection /, "rticle IF o the / > Constitution which provides+

A%C. /. In all criminal prosecution, the accused shall be presumed innocent until the contrary isproved, and shall enjoy the right to be heard by himsel and counsel, to be in ormed o the nature andcause o the accusation against him, to have a speedy, impartial, and public trial, to meet the witnessesace to ace, and to have compulsory process to the attendance o witnesses and the production o

evidence in his behal . Ho ever, after arraignment trial may proceed not ithstanding the absence ofthe accused provided that he has been duly noti ed and his failure to appear is un6usti ed. 7%mphasissupplied.8

'ursuant to the above-written provision, the lower court proceeded with the trial o the case butnevertheless gave the private respondent the opportunity to ta5e the witness stand the moment heshows up in court. 1

" ter due trial, or on @ovember 9, / >, the lower court rendered a decision dismissing the case againstthe Dve accused while holding in abeyance the proceedings against the private respondent. Thedispositive portion is as ollows+

W2%)% 3)%, inso ar as the accused Aamson Auan "le= 'otot, )ogelio ula ernando Cargando and)ogelio $aguio are concerned, this case is hereby dismissed. The City Warden o #apu-#apu City ishereby ordered to release these accused i they are no longer serving sentence o conviction involvingother crimes.

The proceedings in this case against the accused Teodoro de la Fega, *r. who has escaped on "ugust>:, / > shall remain pending, without prejudice on the part o the said accused to cross-e=amine thewitnesses or the prosecution and to present his de ense whenever the court ac!uires bac5 the

jurisdiction over his person. 2

3n @ovember 9, / > the petitioners Dled a otion or )econsideration !uestioning the above-!uoteddispositive portion on the ground that it will render nugatory the constitutional provision on trial in



absentia cited earlier. 2owever, this was denied by the lower court in an 3rder dated @ovember ??,/ >.

2ence, this petition.

The respondent court, in its 3rder denying the otion or )econsideration Dled by the hereinpetitioners, e=pressed the opinion that under Aection /, "rticle IF o the / > Constitution, the privaterespondent, who was tried in absentia, did not lose his right to cross-e=amine the witnesses or the

prosecution and present his evidence. 3 The reasoning o the said court is that under the sameprovision, all accused should be presumed innocent. urthermore the lower court maintains that

jurisdiction over private respondent de la Fega, *r. was lost when he escaped and that his right to cross-e=amine and present evidence must not be denied him once jurisdiction over his person is reac!uired. 5

We disagree.

irst o all, it is not disputed that the lower court ac!uired jurisdiction over the person o the accused-private respondent when he appeared during the arraignment on "ugust ??, / > and pleaded notguilty to the crime charged. In cases criminal, jurisdiction over the person o the accused is ac!uiredeither by his arrest or voluntary appearance in court. Auch voluntary appearance is accomplished byappearing or arraignment as what accused-private respondent did in this case.

$ut the !uestion is this U was that jurisdiction lost when the accused escaped rom the custody o thelaw and ailed to appear during the trial We answer this !uestion in the negative. "s We haveconsistently ruled in several earlier cases,9 jurisdiction once ac!uired is not lost upon the instance oparties but continues until the case is terminated.

To capsuli&e the oregoing discussion, suHce it to say that where the accused appears at thearraignment and pleads not guilty to the crime charged, jurisdiction is ac!uired by the court over hisperson and this continues until the termination o the case, notwithstanding his escape rom thecustody o the law.

Going to the second part o Aection /, "rticle IF o the / > Constitution a orecited a trial inabsentia may be had when the ollowing re!uisites are present+ 7 8 that there has been an arraignment;7?8 that the accused has been notiDed; and 7>8 that he ails to appear and his ailure to do so is

unjustiDed.In this case, all the above conditions were attendant calling or a trial in absentia. "s the acts show, theprivate respondent was arraigned on "ugust ??, / > and in the said arraignment he pleaded notguilty. 2e was also in ormed o the scheduled hearings set on Aeptember 0 and /, / > and this isevidenced by his signature on the notice issued by the lower Court. 7 It was also proved by a certiDedcopy o the 'olice $lotter ! that private respondent escaped rom his detention center. @o e=planationor his ailure to appear in court in any o the scheduled hearings was given. %ven the trial courtconsidered his absence unjustiDed.

The lower court in accordance with the a orestated provisions o the / > Constitution, correctlyproceeded with the reception o the evidence o the prosecution and the other accused in the absenceo private respondent, but it erred when it suspended the proceedings as to the private respondent and

rendered a decision as to the other accused only.Kpon the termination o a trial in absentia , the court has the duty to rule upon the evidence presentedin court. The court need not wait or the time until the accused who who escape rom custody Dnallydecides to appear in court to present his evidence and moss e the witnesses against him. To allow thedelay o proceedings or this purpose is to render inefective the constitutional provision on trial inabsentia . "s it has been aptly e=plained+

. . . The Constitutional Convention elt the need or such a provision as there were !uite a number oreported instances where the proceedings against a de endant had to be stayed indeDnitely because ohis non- appearance. What the Constitution guarantees him is a air trial, not continued enjoyment o



his reedom even i his guilt could be proved. With the categorical statement in the undamental lawthat his absence cannot justi y a delay provided that he has been duly notiDed and his ailure to appearis unjustiDed, such an abuse could be remedied. That is the way it should be, or both society and theofended party have a legitimate interest in seeing to it that crime should not go unpunished. 9

The contention o the respondent judge that the right o the accused to be presumed innocent will beviolated i a judgment is rendered as to him is untenable. 2e is still presumed innocent. " judgment oconviction must still be based upon the evidence presented in court. Auch evidence must prove himguilty beyond reasonable doubt. "lso, there can be no violation o due process since the accused wasgiven the opportunity to be heard.

@or can it be said that an escapee who has been tried in absentia retains his rights to cross-e=amineand to present evidence on his behal . $y his ailure to appear during the trial o which he had notice,he virtually waived these rights. This Court has consistently held that the right o the accused tocon rontation and cross-e=amination o witnesses is a personal right and may be waived. 1" In the samevein, his right to present evidence on his behal , a right given to him or his own beneDt and protection,may be waived by him.

inally, at this point, We note that 3ur pronouncement in this case is buttressed by the provisions o the/0< )ules on Criminal 'rocedure, particularly Aection 7c8 o )ule < which clearly reBects the

intention o the ramers o our Constitution, to wit+... The absence o the accused without any justiDable cause at the trial on a particular date o which hehad notice shall be considered a waiver o his right to be present during that trial. When an accusedunder custody had been notiDed o the date o the trail and escapes, he shall be deemed to havewaived his right to be present on said date and on all subse!uent trial dates until custody in regained....

"ccordingly, it is 3ur considered opinion, and We so hold, that an escapee who has been duly tried inabsentia waives his right to present evidence on his own behal and to con ront and cross-e=aminewitnesses who testiDed against him. 11

W2%)% 3)%, in view o the oregoing, the judgment o the trial court in Criminal Case @o. ?-# in soar as it suspends the proceedings against the herein private respondent Teodoro de la Fega, *r. isreversed and set aside. The respondent judge is hereby directed to render judgment upon theinnocence or guilt o the herein private respondent Teodoro de la Fega, *r. in accordance with theevidence adduced and the applicable law.

@o pronouncement as to costs.

A3 3)(%)%(.

2eehankee, !.9., =ap, $ernan, Narvasa, -elencio+Herrera, 4utierre5, 9r., !ru5, Paras, $eliciano, Padilla,%idin, *armiento, !ortes and 4ri>o+ Aquino, 99., concur.



RE4 PETITION FOR RADIO AND TELE ISION CO ERAGE OF THE MULTIPLE MURDER CASES

AGAINST MAGUINDANAO GO ERNOR /ALD AMPATUAN, ET AL.,= ----------------------------------- =

RE4 PETITION FOR THE CONSTITUTION OF THE PRESENT COURT HANDLING THE TRIAL OF THEMASSACRE OF 57 PERSONS, INCLUDING 32 JOURNALISTS, IN AMPATUAN, MAGUINDANAOINTO A SPECIAL COURT HANDLING THIS CASE ALONE FOR THE PURPOSE OF ACHIE INGGENUINE SPEED TRIAL a - FOR THE SETTING UP OF IDEOCAM AND MONITOR JUSTOUTSIDE THE COURT FOR JOURNALISTS TO CO ER AND FOR THE PEOPLE TO ITNESS THEKTRIAL OF THE DECADE TO MA(E IT TRUL PU'LIC AND IMPARTIAL AS COMMANDED ' THECONSTITUTION,

= ---------------------------------=

RE4 LETTER OF PRESIDENT 'ENIGNO S. A UINO III FOR THE LI E MEDIA CO ERAGE OF THEMAGUINDANAO MASSACRE TRIAL.

A.M. No. 1"011050SC



A.M. No. 1"011060SC

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A.M. No. 1"011070SC



=++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++=

R E S O L U T I O N

CARPIO MORALES, J. 4

3n @ovember ?>, ?::/, < people including >? journalists and media practitioners were 5illedwhile on their way to Aharif "gua5 in aguindanao. Touted as the worst election-related violence andthe most brutal 5illing o journalists in recent history, the tragic incident which came to be 5nown as the[ aguindanao assacre\ spawned charges or < counts o murder and an additional charge orebellion against / accused, doc5eted as Criminal Case @os. 1-:/- 9? 60- ?, 1-:/- 9?? 9-> , 1- :-9?9<?-99, and 1- :- 9> 99, commonly entitled People v. #atu Andal Ampatuan, 9r., et al . ollowing

the trans er o venue and the rera ing o the cases, the cases are being tried by 'residing *udge *ocelyn Aolis-)eyes o $ranch ?? o the )egional Trial Court 7)TC8 o 1ue&on City inside Camp $agong(iwa in Taguig City.

"lmost a year later or on @ovember /, ?: :, the @ational Knion o *ournalists o the 'hilippines7@K*'8, "$A-C$@ $roadcasting Corporation, G " @etwor5, Inc., relatives o the victims, Ni ]support ootnotesONONendi O individual journalists Ni ]support ootnotesON?ONendi O rom various media entities, and members o the academe Ni ]support ootnotesON>ONendi O Dled a petition be ore this Court praying that live television and radio coverage o the trial in thesecriminal cases be allowed, recording devices 7 e.g. , still cameras, tape recorders8 be permitted inside thecourtroom to assist the wor5ing journalists, and reasonable guidelines be ormulated to govern thebroadcast coverage and the use o devices. Ni ]support ootnotesON6ONendi O The Court doc5eted the petition as A.M. No.1"011050SC .

In a related move, the @ational 'ress Club o the 'hilippines Ni ]support ootnotesON<ONendi O 7@'C8 and Alyansa ng$ilipinong -amamahayag Ni ]supportootnotesON9ONendi O 7" I "8 Dled on @ovember ??, ?: : a petition praying that theCourt constitute $ranch ?? o )TC-1ue&on City as a special court to ocus only on the aguindanao assacre trial to relieve it o all other pending cases and assigned duties, and allow the installationinside the courtroom o a suHcient number o video cameras that shall beam the audio and videosignals to the television monitors outside the court. Ni ]support ootnotesONONendi O The Court doc5eted the petition asA.M. No. 1"011060SC .

'resident $enigno A. "!uino III, by letter o @ovember ??, ?: : Ni ]support ootnotesON0ONendi O addressed to Chie *ustice )enato Corona, came out [in support o those who have petitioned Nthis CourtO to permittelevision and radio broadcast o the trial. The 'resident e=pressed [earnest hope that Nthis CourtOwill, within the many considerations that enter into such a historic deliberation,ttend to this petitionwith the dispatch, dispassion and humaneness, such a petition merits.\ Ni ]support ootnotesON/ONendi O The Court doc5etedthe matter as A.M. No. 1"011070SC.

$y separate )esolutions o @ovember ?>, ?: :, Ni ]support ootnotesON :ONendi O the Court consolidated ". . @o. :-



- -AC with ". . @o. :- -<-AC. The Court shall treat in a separate )esolution ". . @o. :- -9-AC.

eanwhile, various groups Ni ]support ootnotesON ONendi O also sent to the Chie *ustice their respective resolutionsand statements bearing on these matters.

The principal accused in the cases, "ndal "mpatuan, *r. 7"mpatuan8, Dled a ConsolidatedComment o (ecember 9, ?: : in ". . @o. :- -<-AC and ". . @o. :- - -AC. The 'resident, throughthe 3Hce o the Aolicitor General 73AG8, and @K*', et al. Dled their respective )eply o *anuary 0, ?:and *anuary ?:, ?: . "mpatuan also Dled a )ejoinder o arch /, ?: .

O ' oa-;a%&* $ &8 T *a) o: &8 Ma$#* -a ao Ma%%a; Ca% %

'etitioners see5 the li ting o the absolute ban on live television and radio coverage o courtproceedings. They principally urge the Court to revisit the // ruling in /e? Live 28 and /adio!overage of the Hearing of President !ora5on !. AquinoBs Libel !ase Ni ]supportootnotesON ?ONendi O and the ?:: ruling in

/e? /equest /adio+28 !overage of the 2rial in the *andiganbayan of the Plunder !ases Against the$ormer President 9oseph ". "strada Ni ]supportootnotesON >ONendi O which rulings, they contend, violate the doctrine thatproposed restrictions on constitutional rights are to be narrowly construed and outright prohibitioncannot stand when regulation is a viable alternative.

'etitioners state that the trial o the aguindanao assacre cases has attracted intense mediacoverage due to the gruesomeness o the crime, prominence o the accused, and the number o mediapersonnel 5illed. They in orm that reporters are being ris5ed and searched or cameras, recorders, andcellular devices upon entry, and that under strict orders o the trial court against live broadcastcoverage, the number o media practitioners allowed inside the courtroom has been limited to onereporter or each media institution.

The record shows that @K*' Fice-Chairperson *ose *aime %spina, by *anuary ?, ?: : letter Ni ]

support ootnotesON 6ONendi O to *udge Aolis-)eyes, re!uested a dialogue to discuss concerns over media coverage o theproceedings o the aguindanao assacre cases. *udge Aolis-)eyes replied, however, that [mattersconcerning media coverage should be brought to the CourtPs attention through appropriate motion.\ Ni ]

support ootnotesON <ONendi O 2ence, the present petitions which assert the e=ercise o the reedom o the press, right toin ormation, right to a air and public trial, right to assembly and to petition the government or redresso grievances, right o ree access to courts, and reedom o association, sub6ect to regulations to beissued by the Court.

T8 Co# & a &*a))y GRANTS pro hac vice &*&*o % ay :o a )*? oa-;a%& o: &8& *a) ;o# & o; -* $% , subject &o &8 $#*- )* % which shall be enumerated shortly .

'uttPs #aw Ni ]support ootnotesON 9ONendi O states that [technology is dominated by two types o people+ those whounderstand what they do not manage, and those who manage what they do not understand.\ Indeed,members o this Court cannot strip their judicial robe and don the e=pertsP gown, so to spea5, in apretense to oresee and athom all serious prejudices or ris5s rom the use o technology inside thecourtroom.



" decade a ter "strada and a score a ter Aquino , the Court is once again aced with the same tas5o stri5ing that delicate balance between seemingly competing yet certainly complementary rights.

The indication o [serious ris5s\ posed by live media coverage to the accusedPs right to dueprocess, le t une=plained and une=plored in the era obtaining in Aquino and "strada, has le t a blow tothe e=ercise o press reedom and the right to public in ormation.

T8 a&*o a) :o a o#& *$8& &o&a) o8* *&*o >a% %8 o#- -, a% *& *% o>, * %*- &8;o :o &a ) ;o;oo o: a : a - % ;#)a&*o >8*;8 o %;* &* ; %&#-y * &8 P8*)* *% &&* $ ;o %, a - >8*;8 : a , *: a y, ay - a)& >*&8 y %a: $#a -% a - %a: &y &%# - *%&* $ #) % a - a;&* $ $#)a&*o % .

In this day and age, it is about time to cra t a >* 0>* %*&#a&*o that shall not compromiserights in the criminal administration o justice, sacriDce press reedom and allied rights, and inter erewith the integrity, dignity and solemnity o judicial proceedings. Compliance with regulations, notcurtailment o a right, provides a wor5able solution to the concerns raised in these administrativematters, while, at the same time, maintaining the same underlying principles upheld in the two previouscases.

The basic principle upheld in Aquino is Drm ^ [NaO trial o any 5ind or in any court is a matter oserious importance to all concerned and should not be treated as a means o entertainmentN, and tOo sotreat it deprives the court o the dignity which pertains to it and departs rom the orderly and serious!uest or truth or which our judicial proceedings are ormulated.\ The observation that [NmOassiveintrusion o representatives o the news media into the trial itsel can so alter and destroy theconstitutionally necessary atmosphere and decorum\ stands.

The Court concluded in Aquino +

Considering the prejudice it poses to the de endantEs right to due process as well as to the air andorderly administration o justice, and considering urther that the reedom o the press and theright o the people to in ormation may be served and satisDed by less distracting, degrading andprejudicial means, live radio and television coverage o court proceedings shall not be allowed.Fideo ootages o court hearings or news purposes shall be restricted and limited to shots o thecourtroom, the judicial oHcers, the parties and their counsel ta5en prior to the commencement o oHcial proceedings. @o video shots or photographs shall be permitted during the trial proper.

"ccordingly, in order to protect the partiesE right to due process, to prevent the distraction o theparticipants in the proceedings and in the last analysis, to avoid miscarriage o justice, the Court



resolved to ')32l$IT live radio and television coverage o court proceedings. Fideo ootage o court hearings or news purposes shall be limited and restricted as above indicated. Ni ]support ootnotesON ONendi O

The Court had another uni!ue opportunity in "strada to revisit the !uestion o live radio andtelevision coverage o court proceedings in a criminal case. It held that [NtOhe propriety o granting ordenying the instant petition involveNsO the weighing out o the constitutional guarantees o reedom othe press and the right to public in ormation, on the one hand, and the undamental rights o theaccused, on the other hand, along with the constitutional power o a court to control its proceedings inensuring a air and impartial trial.\ The Court disposed+

The Court is not all that unmind ul o recent technological and scientiDc advances but to chanceorthwith the li e or liberty o any person in a hasty bid to use and apply them, even be ore amplesa ety nets are provided and the concerns hereto ore e=pressed are aptly addressed, is a price toohigh to pay.

HEREFORE , the petition is DENIED.

In resolving the motion or reconsideration, the Court in "strada , by )esolution o Aeptember >,?:: , provided a glimmer o hope when it ordered the audio-visual recording o the trial ordocumentary purposes, under the ollowing conditions+

= = = 7a8 the trial shall be recorded in its entirety, e=cepting such portions thereo as the

Aandiganbayan may determine should not be held public under )ule /, _? o the )ules o Criminal 'rocedure; 7b8 cameras shall be installed inconspicuously inside the courtroom and themovement o TF crews shall be regulated consistent with the dignity and solemnity o theproceedings; 7c8 the audio-visual recordings shall be made or documentary purposes only andshall be made without comment e=cept such annotations o scenes depicted therein as may benecessary to e=plain them; 7d8 the live broadcast o the recordings be ore the Aandiganbayan shallhave rendered its decision in all the cases against the ormer 'resident shall be prohibited underpain o contempt o court and other sanctions in case o violations o the prohibition; 7e8 to ensurethat the conditions are observed, the audio-visual recording o the proceedings shall be made



under the supervision and control o the Aandiganbayan or its (ivision concerned and shall bemade pursuant to rules promulgated by it; and 7 8 simultaneously with the release o the audio-visual recordings or public broadcast, the original thereo shall be deposited in the @ationaluseum and the )ecords anagement and "rchives 3Hce or preservation and e=hibition in

accordance with law. SO ORDERED. Ni ]support ootnotesON 0ONendi O

Ni ]support ootnotesON /ONendi O

'etitioners note that the /9< case o "stes v. 2e<as Ni ]support ootnotesON?:ONendi O which Aquino and "strada heavily cited, was borne out o the dynamics o a jury system, where the considerations or the possiblein ringement o the impartiality o a jury, whose members are not necessarily schooled in the law, arediferent rom that o a judge who is versed with the rules o evidence. To petitioners, "stes also doesnot represent the most contemporary position o the Knited Atates in the wa5e o latest jurisprudence Ni ]

support ootnotesON? ONendi O and statistical Dgures revealing that as o ?:: all <: states, e=cept the (istrict o Columbia,allow television coverage with varying degrees o openness.

3ther jurisdictions welcome the idea o media coverage. "lmost all the proceedings o Knited

MingdomPs Aupreme Court are Dlmed, and sometimes broadcast. Ni ]support ootnotesON??ONendi O The International CriminalCourt broadcasts its proceedings via video streaming in the internet. Ni ]support ootnotesON?>ONendi O

3n the media coveragePs inBuence on judges, counsels and witnesses, petitioners point out that Aquino and "strada , li5e "stes , lac5 empirical evidence to support the sustained conclusion. They pointout errors o generali&ation where the conclusion has been mostly supported by studies on "mericanattitudes, as there has been no authoritative study on the particular matter dealing with ilipinos.

)especting the possible inBuence o media coverage on the impartiality o trial court judges,petitioners correctly e=plain that prejudicial publicity inso ar as it undermines the right to a air trial

must pass the K&o&a)*&y o: ;* ;# %&a ; % test, applied in People v. 2eehankee, 9r. Ni ]support ootnotesON?6ONendi O and"strada v. #esierto, Ni ]supportootnotesON?<ONendi O that the right o an accused to a air trial is not incompatible to a reepress, that pervasive publicity is not per se prejudicial to the right o an accused to a air trial, and thatthere must be allegation and proo o the impaired capacity o a judge to render a bias- ree decision.ere ear o possible undue inBuence is not tantamount to actual prejudice resulting in the deprivationo the right to a air trial.

oreover, an aggrieved party has ample legal remedies. 2e may challenge the validity o anadverse judgment arising rom a proceeding that transgressed a constitutional right. "s pointed out bypetitioners, an aggrieved party may early on move or a change o venue, or continuance until theprejudice rom publicity is abated, or dis!ualiDcation o the judge, and or closure o portions o the trialwhen necessary. The trial court may li5ewise e=ercise its power o contempt and issue gag orders.

3ne apparent circumstance that sets the aguindanao assacre cases apart rom the earliercases is the impossibility o accommodating even the parties to the cases ` the privatecomplainantsQ amilies o the victims and other witnesses ` inside the courtroom. 3n public trial,"strada basically discusses+

"n accused has a right to a public trial but it is a right that belongs to him, more than anyone else,



where his li e or liberty can be held critically in balance. " public trial aims to ensure that he isairly dealt with and would not be unjustly condemned and that his rights are not compromised insecrete conclaves o long ago. " public trial is not synonymous with publici&ed trial; it only impliesthat the court doors must be open to those who wish to come, sit in the available seats, conductthemselves with decorum and observe the trial process. In the constitutional sense, a courtroomshould have enough acilities or a reasonable number o the public to observe the proceedings,not too small as to render the openness negligible and not too large as to distract the trial

participants rom their proper unctions, who shall then be totally ree to report what they haveobserved during the proceedings. Ni ]support ootnotesON?9ONendi O 7underscoring supplied8

%ven be ore considering what is a [reasonable number o the public\ who may observe theproceedings, the peculiarity o the subject criminal cases is that the proceedings already necessarilyentail the presence o hundreds o amilies. It cannot be gainsaid that the amilies o the < victims ando the / accused have as much interest, beyond mere curiosity, to attend or monitor the proceedingsas those o the impleaded parties or trial participants. It bears noting at this juncture that the

prosecution and the de ense have listed more than ?:: witnesses each.

The impossibility o holding such judicial proceedings in a courtroom that will accommodate allthe interested parties, whether private complainants or accused, is un ortunate enough. What more ithe right itsel commands that a reasonable number o the general public be allowed to witness theproceeding as it ta5es place inside the courtroom. Technology tends to provide the only solution tobrea5 the inherent limitations o the courtroom, to satis y the imperative o a transparent, open andpublic trial.

In so allowing pro hac vice the live broadcasting by radio and television o the aguindanaoassacre cases, the Court lays down the ollowing $#*- )* % toward addressing the concernsmentioned in Aquino and "strada +

7a8 "n audio-visual recording o the aguindanao massacre cases may be made both or documentarypurposes and or transmittal to live radio and television broadcasting.



7b8 edia entities must Dle with the trial court a letter o application, mani esting that they intend tobroadcast the audio-visual recording o the proceedings and that they have the necessarytechnological e!uipment and technical plan to carry out the same, with an underta5ing that theywill aith ully comply with the guidelines and regulations and cover the entire remainingproceedings until promulgation o judgment.

@o selective or partial coverage shall be allowed. @o media entity shall be allowed tobroadcast the proceedings without an application duly approved by the trial court.

7c8 " single D=ed compact camera shall be installed inconspicuously inside the courtroom to provide a singlewide-angle ull-view o the sala o the trial court. @o panning and &ooming shall be allowed toavoid unduly highlighting or downplaying incidents in the proceedings. The camera and thenecessary e!uipment shall be operated and controlled only by a duly designated oHcial oremployee o the Aupreme Court. The camera e!uipment should not produce or beam anydistracting sound or light rays. Aignal lights or signs showing the e!uipment is operating shouldnot be visible. " limited number o microphones and the least installation o wiring, i not wirelesstechnology, must be unobtrusively located in places indicated by the trial court.

The 'ublic In ormation 3Hce and the 3Hce o the Court "dministrator shall coordinateand assist the trial court on the physical set-up o the camera and e!uipment.

7d8 The transmittal o the audio-visual recording rom inside the courtroom to the media entities shall beconducted in such a way that the least physical disturbance shall be ensured in 5eeping with thedignity and solemnity o the proceedings and the e=clusivity o the access to the media entities.

The hardware or establishing an interconnection or lin5 with the camera e!uipmentmonitoring the proceedings shall be or the account o the media entities, which should employtechnology that can 7i8 avoid the cumbersome sna5ing cables inside the courtroom, 7ii8 minimi&ethe unnecessary ingress or egress o technicians, and 7iii8 preclude undue commotion in case o technical glitches.



I the premises outside the courtroom lac5 space or the set-up o the media entitiesPacilities, the media entities shall access the audio-visual recording either via wireless technologyaccessible even rom outside the court premises or rom one common web broadcasting plat ormrom which streaming can be accessed or derived to eed the images and sounds.

"t all times, e=clusive access by the media entities to the real-time audio-visualrecording should be protected or encrypted.

7e8 The broadcasting o the proceedings or a particular day must be continuous and in its entirety, e=ceptingsuch portions thereo where Aec. ? o )ule / o the )ules o Court Ni ]support ootnotesON?ONendi O applies, andwhere the trial court e=cludes, upon motion, prospective witnesses rom the courtroom, ininstances where, inter alia , there are unresolved identiDcation issues or there are issues whichinvolve the security o the witnesses and the integrity o their testimony 7 e.g. , the dovetailing o corroborative testimonies is material, minority o the witness8.

The trial court may, with the consent o the parties, order only the pi=eli&ation o theimage o the witness or mute the audio output, or both.

7 8 To provide a aith ul and complete broadcast o the proceedings, no commercial brea5 or any other gapshall be allowed until the dayPs proceedings are adjourned, e=cept during the period o recesscalled by the trial court and during portions o the proceedings wherein the public is orderede=cluded.

7g8 To avoid overriding or superimposing the audio output rom the on-going proceedings, the proceedings

shall be broadcast without any voice-overs, e=cept brie annotations o scenes depicted therein asmay be necessary to e=plain them at the start or at the end o the scene. "ny commentary shallobserve the sub 6udice rule and be subject to the contempt power o the court;



7h8 @o repeat airing o the audio-visual recording shall be allowed until a ter the Dnality o judgment, e=ceptbrie ootages and still images derived rom or cartographic s5etches o scenes based on therecording, only or news purposes, which shall li5ewise observe the sub 6udice rule and be subjectto the contempt power o the court;

7i8 The original audio-recording shall be deposited in the @ational useum and the )ecords anagement and"rchives 3Hce or preservation and e=hibition in accordance with law.

7j8 The audio-visual recording o the proceedings shall be made under the supervision and control o the trialcourt which may issue supplementary directives, as the e=igency re!uires, including thesuspension or revocation o the grant o application by the media entities.

758 The Court shall create a special committee which shall orthwith study, design and recommendappropriate arrangements, implementing regulations, and administrative matters re erred to it bythe Court concerning the live broadcast o the proceedings pro hac vice , in accordance with theabove-outlined guidelines. The Apecial Committee shall also report and recommend on theeasibility, availability and afordability o the latest technology that would meet the herein

re!uirements. It may conduct consultations with resource persons and e=perts in the Deld o in ormation and communication technology.

7l8 "ll other present directives in the conduct o the proceedings o the trial court 7 i.e. , prohibition onrecording devices such as still cameras, tape recorders; and allowable number o mediapractitioners inside the courtroom8 shall be observed in addition to these guidelines.



Indeed, the Court cannot gloss over what advances technology has to ofer in distilling theabstract discussion o 5ey constitutional precepts into the wor5able conte=t. Technology per se hasalways been neutral. It is the use and regulation thereo that need Dne-tuning. #aw and technologycan wor5 to the advantage and urtherance o the various rights herein involved, within the contours odeDned guidelines.

HEREFORE , in light o the oregoing dis!uisition, the Court PARTIALL GRANTS PRO HACVICE the re!uest or live broadcast by television and radio o the trial court proceedings o theaguindanao assacre cases , subject to the guidelines herein outlined.

SO ORDERED.

consti2cases sec 12, 13, 14.docx

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