1. G.R. No.

L-37945 May 28, 1984

THE PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
ADRIANO CAETE and JOSE BILOG alias
BOY, defendants-appellants.
RELOVA, J.:
Charged and convicted of the crime of murder by the
then Court of First Instance of Palawan the two (2)
accused, Adriano Caete and Jose Bilog, were both
sentenced to the maximum penalty of death and to
pay jointly and severally the heirs of the deceased,
Douglas Bilog, in the sum of P12,000.00 without
subsidiary imprisonment in case of insolvency and to
pay proportional costs.
The People's version of the facts is as follows:
Accused Jose Bilog and Douglas Bilog were
brothers. They were owners of adjoining ricelands
adjacent to the Inagawan-Sub Colony at Puerto
Princess, Palawan (p. 10, tsn, Jan. 4, 1973, Anonas).
They were not in good terms and always quarrelled
because Jose resented the fact that Douglas has
received a bigger share of the lands inherited from
their parents. (pp. 12, 20, tsn., Anonas).
The ire of Jose against his brother became unbearable
that on or about April 28, 1971, he got his father's
shotgun and waylaid Douglas at the bridge leading
their house. A tragic incident was averted only when
Concepcion the wife of Douglas, informed her uncle,
Cervancia, of Jose's evil scheme. Cervancia
immediately went after Jose and succeeded in
retrieving the gun from the latter and tried to settle
their differences (p. 10, tsn, Anonas).
Through the intercession of Mr. Aniceto Gamo, a
Chief of Section in the Inagawan-Sub Colony, Jose
Bilog had allowed his farm to be worked by Nicasio
Dayao, a prisoner at the Colony (pp. 4-5, 13, tsn,
Duero). Sometime in May, 1971 while Dayao was
working in the ricefield, Jose Bilog offered him
P300.00 if he (Dayao) would kill Douglas. Dayao
asked Jose Bilog why he wanted his brother
liquidated. Jose replied that Douglas poisoned their
mother and if Douglas would not be liquidated he
(Douglas) would eventually kill all of them in the
family (p. 7, tsn., Duero). Dayao rejected the
proposal and offer of reward. He explained to Jose
that he could not kill Douglas because he has many
children to think about (p. 8, tsn., Duero).
On April 19, 1972, at about 5:00 p.m., Concepcion
Bilog saw from the window of their house in the
ricefield, Jose Bilog riding on a bicycle going
towards the ricefield. On that occasion she saw Jose
Bilog converse with two colonists (pp. 6-7, 10, tsn.,
Jan. 4, 1973, Anonas).

Almost at the same time on that day, Angel Rebong, a

prisoner of the colony was sent by Aniceto Gamo to
get some palay from Roming who lived near the
ricefield of Jose Bilog (p. 53, tsn., Duero). On the
highway, Angel Rebong met Jose Bilog who was
then riding a bicycle. Jose told him not to mention to
anybody what he might see in the ricefield (pp. 35,
49, 53, tsn., Duero). Angel however, did not see
anything unusual in the ricefield so he went directly
to the house of Roming. He left Roming's place at
about 6:00 p.m. and reported to Mr. Gamo that he
failed to get the palay. Thereafter, he returned to the
General Services Barracks in the colony's compound.
He reached his hut at about 7:00 p.m. (pp. 36-37, tsn.,
Duero).
At about 5:00 o'clock that same afternoon, Antonio
Cabig, an inmate of the Colony was on his way from
the Colony's PX to the Coconut Division (pp. 64-66,
tsn, Duero). He passed the ricefield of Jose Bilog and
saw Douglas and Jose drinking wine in the latter's
hut. They were seated in front of a table with about
five bottles of 'Cuatro Cantos' gin on it (p. 92, tsn.,
Duero). When Cabig was 3 or 4 meters from the hut,
Douglas saw him and offered him a drink. He
accepted the drink but stayed outside the hut (pp. 68,
93, tsn., Duero). Not long thereafter, two persons
arrived and joined the drinking party. Appellant
Adriano Caete also arrived and joined the group. He
sat beside Jose Bilog (pp. 90, 93, tsn., Id.).
When those around the table were already drunk,
Jose (Boy) Bilog stood up and drew from his waist a
"laring," a bladed instrument about 1-1/2 feet long.
Suddenly, Jose stabbed Douglas at the front part of
his body (pp. 75, 77, 114, tsn., Id.). Cabig witnessed
the incident, but could not tell how many stab blows
Jose Bilog delivered. He noticed that the knife
embedded in Douglas' body. At this juncture, Caete
got hold of the knife and stabbed Douglas on the
stomach (p. 144, tsn., Id.). Douglas stood up and
fought his assailants with karate blows (p. 118,
tsn., Id.). The two persons who had arrived earlier
helped Jose and Caete by hitting Douglas with a
piece of wood. When Boy Bilog caned for assistance,
a colonist, one Roming, came and helped them until
Douglas fell dead. The victim was then dumped in a
nearby canal. Caete got the 'laring' and proceeded to
the Colony's brigade with it (p. 140, tsn., Duero).
When Angel Rebong arrived in his hut, Dugguan
Abao, his hut-mate, informed him that appellant
Adriano Caete came to their hut with blooded
clothes. Caete got Angel's clothes and wore them
and left his blooded clothes (pp. 37-38, tsn., Duero).
Angel then left for the General Services Barracks
because he was to perform guard duty at 8:00 p.m.
There he saw appellant Caete wearing his black
pants and Vonnel T-Shirt. The latter told him that he
got his (Angel's) clothes because he had no clothes to
wear (pp. 39, 44, 59, tsn., Duero).

On April 27, 1972, police investigators received

information about the persons seen at the scene of the
crime prior to its commission. They took into custody
Adriano Caete and Angel Rebong and brought them
to Puerto Princess for interrogation. When they
reached Puerto Princess, Adriano Caete informed
Angel Rebong that he killed Douglas Bilog (p. 57,
tsn., Duero). Upon investigation, appellant Caete
readily admitted that he together with Jose Bilog,
Pedro Macabihag and Ramon Dealogo killed
Douglas Bilog. Caete then voluntarily gave a
written statement. (Exhibit "C"; pp. 157, 158-159,
tsn. Duero). Later, he led Sgt. Maduro to his quarters
in the Colony and surrendered the fatal knife (pp.
162, 180, tsn., Id.). On June 22, 1972 Caete gave
another statement. This time he stated that only he
and Jose Bilog had a hand in the killing of Douglas
(p. 177, tsn., Duero).
Dr. Oscar Magtang, Rural Health Physician at Puerto
Princess, Palawan conducted an autopsy on the
cadaver of Douglas Bilog. He found 26 injuries,
twenty-four (24) of which were incised and stab
wounds scattered all over the body, particularly on
the face, head, chest, abdomen, back, arms, and
fingers of both hands. There were abrasions on the
neck and lower abdomen. Death was due to severe
hemorrhage (pp. 55-58, tsn. Anonas). Dr. Magtang
made a written report, Exhibit "F" (p. 53, tsn. Id.).
According to said doctor, the most severe of these
wounds were those inflicted on the left mammary
region of the chest going vertically downward and
injuring the heart, and the stab wound on the
abdomen (pp. 60-61, tsn., Anonas).
Adela Pereyna, Chief, Record and Document Section
and Parcel Investigation, of the Iwahig Penal Colony
testified that per records in her custody Adriano
Caete was convicted by the Court of First Instance
of Cebu of robbery on September 7, 1960; that he
transferred to Davao Penal Colony for work
assignment bearing Serial No. 34831-P; that he
escaped while serving sentence on January 10, 1963,
but was captured and recommitted to prison on the
following day; that he escaped again on April 7,
1964; that on August 6, 1966, he was committed to
the Iwahig Penal Colony after having been convicted
of robbery by the Court of First Instance of Ormoc
City; that because he did not reveal his Identity, he
was included in the list of new arrivals and given
serial No. 55791-P; that at the Verification and
Identification Section, his Identity was established as
the same Adriano Caete who was previously given
Serial No. 34831-P and who escaped from the Davao
Penal Colony or, April 7, 1964; that he was
prosecuted for evasion of sentence in the. Davao
Court of First Instance with the aggravating
circumstance of recidivism; and, that his term of
sentence was due to expire on August 23, 1975 (pp.
41-43, tsn. April 16,1973, Anonas; Exh. "D", p. 109,
Rec). (pp. 4-10, Appellee's Brief).

Appellant Adriano Caete assails the decision against

him and submits that the lower court erred (1) in not
rejecting his extra-judicial confession, Exhibit "C",
notwithstanding that the case was merely concocted,
incredible and in conflict with the People's evidence;
(2) in not finding that there were at least seven (7)
possibilities or versions as to who committed the
crime and in not acquitting him on reasonable doubt;
(3) in finding that the crime was committed in
conspiracy with the attendance of evident
premeditation, price, treachery and in not finding that
Caete should have been found guilty only of
physical injuries or at most homicide.
On the other hand, appellant Jose Bilog claims that
the lower court erred (1) in giving credit to the
testimony of prosecution witness Antonio Cabig,
notwithstanding that said witness is "known to be a
confirmed degenerate and an admitted perjurer"; (2)
in disregarding his defense of alibi; and (3) in not
acquitting him on reasonable doubt.
Appellant Caete subjects that the extra-judicial
admission, Exhibit "C", should have been
disregarded, not due to violence in the taking thereof,
but on the ground that the same had been
successfully explained by him; that the contents
thereof were merely concocted and this is supported
by the evidence of the prosecution; that aside from
the irreconciliable conflict between what' is
contained in his extra-judicial confession and what
prosecution witness Antonio Cabig testified in court,
said extra-judicial confession contains statements
which are strikingly incredible; and that the
credibility of prosecution witness Cabig as to the
participation of appellant Caete in the killing of
Douglas Bilog is doubtful.
The contention is utterly without merit. The findings
of the trial court is entitled to great weight that
Caete's retraction was merely a last minute effort at
exculpation, considering that his extra-judicial
confession, Exhibit "C", given in April 1972, was
freely and voluntarily given. The fact is, there was no
evidence presented that said confession was obtained
as a result of violence, torture, intimidation or
promise of reward or leniency, nor that the
investigating officer could have been motivated to
concoct facts narrated in said confession.
Besides, even with the exclusion of said Exhibit "C",
there is the testimony of Antonio Cabig who
witnessed the incident from the time Jose Bilog
stabbed his brother on his breast up to the time
Douglas fell after receiving the thrust of Caete.
Hereunder is Cabig's testimony regarding the
horrifying incident:
Q You said that Douglas Bilog was killed, do you
know the persons who killed ...
Q Do you know how Douglas was killed?
A Yes, sir.

Q In what way was he killed'?

A Douglas was drunk and he was stabbed by Boy
Bilog.
Q Where?
WITNESS:
A He was stabbed near the hut and near the river.
COURT: (To Witness)
Q Did you see by your own eyes when that incident
happened?
A Yes, sir.
FISCAL DILIG:
Q Who was the companion of Boy Bilog when he hit
Douglas Bilog?
A Caete.
Q When you said Caete, was he the same person
whom you have just pointed to?
A Yes, sir.
xxx xxx xxx
FISCAL DILIG:
Q You said that Boy Bilog hit with this bladed
instrument marked as Exh. "B" Douglas Bilog was
Douglas Bilog hit?
A Yes, sir.
FISCAL DILIG:
Q In what part of the body of Douglas Bilog was hit?
A At the back of the body and here at the front.
Q After Boy Bilog hit his brother Douglas, do you
know what happened to the knife marked as Exh.
"B"?
A Yes, sir.
Q What happened to that weapon marked as Exh.
"B"?
A The knife dropped in the hand of Boy Bilog. After
the knife was dropped, Douglas Bilog stood up and
he was hit again.
COURT: (To witness)
Q By whom?
A He was hit again by Cenete.
FISCAL DILIG:
Q You said that Douglas Bilog was hit by Adriano
Caete. What instrument did Caete stab Douglas?
A The same knife used by Boy Bilog.
Q And in what particular part of the body of Douglas
was stabbed by Caete with the same weapon
marked as Exh. "B"?
A At the left side and on the breast.
Q And after Douglas was hit and stabbed by Caete
on the side and breast, do you know what happened
to Douglas?
A Douglas stood up and the two civilians helped in
clubbing Douglas.
Q After that, what happened?
A Douglas fell down.
Q And after Douglas Bilog had fallen down, what did
you do, if any?
A I went home already to the Coconut Section.
Q Prior to that incident, did you already personally
know Jose Bilog.
A Yes, sir.
(TSN, pp. 77-78, January 8, 1973 hearing)

Likewise, appellant Jose Bilog's alibi cannot prevail

over the positive Identification of Cabig. He points
out that on the day of the incident, April 19, 1972, he
was in his house doing household chores as his wife
was in Puerto Princess doing some marketing. On
this score, the lower court rightfully observed:
Jose Bilog's alibi has no merit. His house is but three
kilometers away from the place of the incident and he
was seen by the widow of the deceased leaving his
house on a bicycle about 4:00 o'clock that afternoon.
At 5:00 o'clock, he was met by Angel Rebong at the
highway while riding his bicycle and at 6:00 o'clock
late in the afternoon, Antonio Cabig saw him
drinking liquor with the deceased in his hut in the
banana plantation (pp. 154-155, Rec.).
The defense of alibi cannot be believed where the
distance between two barrios is only eight kilometers
and can be traversed by walking one and one-half
hour (People vs. Manangan, L-32733, Sept. 11, 1974,
59 SCRA 31). (pp. 9-10, Appellee's Brief).
Aside from the fact that courts exercise great caution
in accepting alibi because it is easily concocted, it
may be proper to repeat what one author said about
alibi as a defense: "it is a reason with a bad
reputation."
Again, We agree with the findings of the trial court
that "while Jose Bilog tried to shift the blame at
Caete, Caete too wanted the Court to believe that it
was Jose Bilog who did the heinous act. Repudiating
his confession, Caete tried to convince the Court
that he was simply offered P1,000.00 in
consideration of his admission of the crime. On
cross- examination, however, Caete slipped and
admitted that the P1,000.00 consideration was
offered for him to execute the killing. It is therefore
evident that Caete's testimony disowning the crime
is but a last minute attempt at exculpation."
The killing of Douglas Bilog was qualified by
treachery because the attack was unexpected and
sudden, and the victim had no chance to defend
himself. Likewise, the aggravating circumstance of
price was present in the commission of the crime and
this affects not only the person who received the
money or the reward but also the person who gave it.
(People vs. Talledo, 58 Phil. 539).
WHEREFORE, the judgment appealed from is
AFFIRMED but, for lack of necessary votes, the
sentence is modified in that both appellants shall each
sufferReclusion Perpetua only, and shall indemnify,
jointly and severally, the heirs of Douglas Bilog in
the sum of P30,000.00. Costs against both appellants.
SO ORDERED.

Chief Justice Warren E. Burger

The case at bar involves the clash of two classic
values - - - the need for the State to stop crimes and
preserve the peace against the right of an individual
to confront material witnesses to establish his
innocence. In balancing the two values, we shall
scrutinize and set the parameters that ought to guide
prosecution when to disclose the identity of
confidential informers.
On July 27, 1998 accused William Ong y Li and
Ching De Ming @ Robert Tiu were charged with
violation of Section 15, Article III, in relation to
Section 2, Article I, of Republic Act No. 6425,
otherwise known as The Dangerous Drugs Act of
1972, as amended. The Information[2] reads:
That on or about the 24th day of July, 1998 in Quezon
City, Philippines, the said accused, conspiring
together, confederating with and mutually helping
each other not having been authorized by law to sell,
dispense, deliver, transport or distribute any regulated
drug, did then and there willfully and unlawfully sell
or offer for sale 980.50 grams of Methyl
Amphetamine Hydrochloride, which is a
regulated drug.
CONTRARY TO LAW.
Upon arraignment, the two (2) accused, who are
Chinese nationals, pled not guilty. The records do not
show whether they had sufficient knowledge of the
English language. Their trial proceeded. In the course
of the trial, the two (2) accused were given the
services of a Chinese interpreter.

2.

PEOPLE
OF
THE
PHILIPPINES, appellee, vs.
WILLIAM
ONG y LI and CHING DE MING @
ROBERT TIU, appellants.
DECISION

PUNO, J.:
the allowance of the privilege to withhold evidence
that is demonstrably relevant in a criminal trial
would cut deeply into the guarantee of due process of
law and gravely impair the basic function of the
courts. [1]

The prosecution, through the testimony of SPO1

Rodolfo S. Gonzales, sought to establish that on July
23, 1998 at around 5:00 P.M., a confidential
informant (CI) of the Special Operations Division
(SOD), PNP Narcotics Group, reported to Chief
Inspector Albert Ignatius D. Ferro about the alleged
illicit drug activities of a certain William Ong and an
unidentified Chinese male partner. After an
evaluation of the confidential information, Chief
Inspector Ferro decided to conduct a buy-bust
operation. He constituted a team of eight (8) with
Police Inspector Medel N. Poe as team leader, SPO1
Gonzales as poseur-buyer and the rest as back-up
support.
According to SPO1 Gonzales, the CI called up
the alleged pusher, placed an order for one (1) kilo of
shabu
and
agreed
to
a P600,000.00
consideration. The CI likewise agreed to meet with
his
contact
on July
24,
1998 at 6th Street corner Gilmore
Avenue,
New
Manila, Quezon
City,
between 4:00 and 5:00
A.M. The boodle money was prepared consisting of
six (6) bundles of cut bond paper with a
marked P1,000.00 peso bill on top of each bundle.

On July 24, 2004 at 3:00 A.M., the CI received a

call from the drug dealer changing the meeting time
between 2:00 and 3:00 P.M. on the same day. The
team, together with the CI, proceeded to the meeting
place and arrived there at around 1:30 P.M. The CI
rode with SPO1 Gonzales. They parked their car
along 6th Street corner Gilmore Avenue. The rest of
the team posted themselves at their back and their
right side.
A little while, accused Ong approached their
car. The CI introduced him to SPO1 Gonzales who
told accused Ong in broken Tagalog to get in the
car. When Ong inquired about the money in payment
of the shabu, SPO1 Gonzales showed him the
slightly opened plastic bag containing the boodle
money. SPO1 Gonzales then demanded to see
the shabu. Accused Ong excused himself, went out of
the car, walked a few steps and then waved his right
hand to somebody. While accused Ong was walking
back to the car, SPO1 Gonzales and the CI saw a
green Toyota Corolla coming. The Corolla parked in
front of their car and a Chinese-looking male, later
identified as accused Ching De Ming @ Robert Tiu
alighted, approached accused Ong and handed to him
a gift-wrapped package. SPO1 Gonzales opened it
and inside was one (1) sealed plastic bag with a white
crystalline substance. After its inspection, accused
Ong demanded for its payment. SPO1 Gonzales gave
to accused Ong the boodle money placed in a W.
Brown plastic bag. Thereafter, SPO1 Gonzales
signaled his back-up team by turning on the hazard
lights of the car. SPO1 Gonzales himself arrested
accused Ong while the CI and the back-up agents
arrested accused De Ming.
The officers brought the two (2) accused to their
office where the corresponding booking sheets and
arrest report were prepared. The plastic bag
containing the white crystalline substance was
referred to the PNP Crime Laboratory for
examination. The two (2) accused were subjected to
a physical and mental examination as required. They
were found to be free from any external signs of
trauma.
Police Inspector Grace M. Eustaquio, Forensic
Chemist, PNP Crime Laboratory, testified that the
specimen she examined had a net weight of 980.50
grams and manifested positive results for methyl
amphetamine hydrochloride[3] or what is commonly
known as shabu, a regulated drug. Her testimony was
supported by her Physical Sciences Report.[4]
Appellants denied the story of the
prosecution. Accused William Ong, a Chinese citizen
from the Peoples Republic of China, claimed that he
came to the Philippines in 1997 to look for a
job. Upon the recommendation of a friend, he was
able to work in a pancit canton factory in Quezon
City. In June 1998, he stopped working at the factory
and hunted for another job. Two (2) weeks prior to
his arrest, accused Ong was introduced by his friend

Kian Ling to Ong Sin for a possible job as technician

in a bihon factory owned by Ong Sin.
On July 22, 1998, Ong Sin called up and set a
meeting with accused Ong at the Tayuman branch of
Jollibee the next day. While waiting at Jollibee,
accused Ong received a call from Ong Sin that he
could not personally meet him. Instead, his two (2)
co-workers would meet accused Ong as
instructed. Subsequently, two (2) men answering to
Ong Sins description approached accused Ong. He
joined them inside a yellow car. When they reached a
certain place, the driver reached for his cellular
phone and called up someone. After a brief
conversation, the driver handed the phone to
him. Ong Sin was on the line and informed him that
the driver would accompany him to the bihon
factory. The driver got out of the car and accused
Ong followed him. After walking two (2) blocks, the
driver picked up something from the place. They
returned to the car. Suddenly, the companion of the
driver poked a gun at him.He was arrested,
blindfolded and brought to an undisclosed
place. Several hours later, he was taken to the police
station. There he met the other accused Ching De
Ming for the first time.He maintained innocence to
the crime charged.
On his part, accused Ching De Ming testified
that he is a legitimate businessman engaged in the
RTW business. He claimed that he gets his products
from Baclaran and sells them to customers in the
cities of Naga and Daet in Bicol.
On July 23, 1998 at around 4:30 and 5:00 P.M.,
while waiting inside his car for his girlfriend and her
mother who just went in a townhouse at 8 th Street,
New Manila, Quezon City, he was approached by
persons unknown to him. They asked him what he
was doing there. One of them went to the car parked
at his back, ordered somebody inside to get out and
take a good look at him. The person pointed at him
saying maybe he is the one. He was then dragged out
of his car and brought to the other car. They took his
clutch bag. They blindfolded and brought him to a
place. After a few hours, at Camp Crame, Quezon
City, they removed his blindfold. He denied knowing
accused Ong and the charge of conspiring with him
to deliver shabu in New Manila, Quezon City.
Avelina Cardoz, the mother of his girlfriend, and
a divine healer, corroborated his story. She testified
that she requested accused De Ming to drive her to a
townhouse at 8th Street, New Manila, to cure a
patient. She declared that the officers of the Peoples
Journal publication could attest to her profession. She
asked accused De Ming to wait for her and her
daughter inside his car. When they returned to the
car, accused De Ming was nowhere to be found. They
saw him next at the Quezon City Jail.
On November 18, 1998 the trial court convicted
appellants as charged and imposed on them the
penalty of death. It likewise ordered each of them to
pay a fine of P1 million pesos.[5]

The case is with us on automatic

review. Appellants insist on their innocence. They
claim that their guilt was not proven beyond
reasonable doubt.
We agree.
I
Rule 116, Section 1 (a) of the Revised Rules of
Criminal Procedure, as amended, provides:
SECTION 1. Arraignment and plea; how made.(a) The accused must be arraigned before the court
where the complaint or information was filed or
assigned for trial. The arraignment shall be made in
open court by the judge or clerk by furnishing the
accused with a copy of the complaint or information,
reading the same in the language or dialect known to
him, and asking him whether he pleads guilty or not
guilty. The prosecution may call at the trial witnesses
other than those named in the complaint or
information. (Underscoring and emphasis supplied.)
The arraignment of appellants violates the above
rule. Appellants are Chinese nationals. Their
Certificate of Arraignment[6] states that they were
informed of the accusations against them. It does not,
however, indicate whether the Information was read
in the language or dialect known to them. It merely
states:
This 4th day of Aug., 1998, the undersigns (sic)
states:
That, in open court, and in the presence of Trial
Prosecutor Ruben Catubay, the following accused
William Ong and Ching De Ming AKA Robert Tiu
was/were called and, having been informed of the
nature of the accusation filed against
him/her/them, furnishing him/her/them a copy of
the complaint or information with the list of
witnesses, the said accused in answer to the question
of the Court, pleaded Not Guilty to the crime as
charged.
TO WHICH I CERTIFY.
Sgd.
Mary Ruth Milo-Ferrer
Branch
Clerk of Court
Sgd. William Ong
ACCUSED WILLIAM ONG
Sgd. Ching de Ming
ACCUSED CHING DE MING @ ROBERT TIU
Neither does the August 4, 1998 Order of Judge
Diosdado M. Peralta of RTC-Br. 95, Quezon City,
disclose compliance with the rule on arraignment. It
merely stated in part that [w]hen both accused
William Ong y Li and Ching De Ming @ Robert Tiu
were arraigned, assisted by counsel de parte, both
accused entered a plea of not guilty.[7]

From the records, it is clear that appellants only

knew the Chinese language. Thus, the services of a
Chinese interpreter were used in investigating
appellants. SPO1 Rodolfo S. Gonzales revealed in his
testimony, viz:[8]
Q: Now, is it not a fact that you had the
difficulty of investigating the two
accused because of communication
problem from your informant?
A: We did not encounter such problem when
we investigated them sir. We also asked
question and we have another Chinese
who was arrested who can speak
Tagalog and we used that Chinese
man to translate for us and for them
if the questions are difficult to
understand, sir.
Q: Now that Chinese interpreter that is also
an accused?
A: Yes sir.[9]
After arraignment and in the course of the trial,
the lower court had to secure the services of a certain
Richard Ng Lee as Chinese interpreter. This appears
in the Order of August 28, 1998 of Judge Peralta, viz:
Considering that the counsel of the two (2) accused
has still a lot of questions to ask on crossexamination x x x x From hereon, Mr. Richard Ng
Lee, a businessman and a part time interpreter, is
hereby designated by the Court as interpreter in
this case considering that there is no official
interpreter of the Court who is knowledgeable in
the Chinese language or any Chinese dialect
whatsoever. The appointment of Mr. Richard Ng Lee
is without the objection of counsel of the accused and
the public prosecutor and considering that the court
is convinced that he indeed possesses the
qualifications of an interpreter of a Chinese
language or any other Chinese dialect known and
spoken by the two (2) accused.[10] (Emphasis
supplied.)
What leaps from the records of the case is the
inability of appellants to fully or sufficiently
comprehend any other language than Chinese and
any of its dialect. Despite this inability, however, the
appellants were arraigned on an Information written
in the English language.
We again emphasize that the requirement that the
information should be read in a language or dialect
known to the accused is mandatory. It must be strictly
complied with as it is intended to protect the
constitutional right of the accused to be informed of
the nature and cause of the accusation against
him. The constitutional protection is part of due
process. Failure to observe the rules necessarily
nullifies the arraignment.[11]
II

More important than the invalid arraignment of

the appellants, we find that the prosecution evidence
failed to prove that appellants willfully and
unlawfully sold or offered to sellshabu.

In other words what he say is that, there was

a telephone conversation but he has no
personal knowledge. Your question then
was what happened.

Appellants conviction is based on the lone

testimony of SPO1 Gonzales. He was the designated
poseur-buyer in the team formed for the buy-bust
operation. But a careful reading of his testimony will
reveal that he was not privy to the sale
transaction that transpired between the CI and
appellant William Ong, the alleged pusher. It is
beyond contention that a contract of sale is perfected
upon a meeting of the minds of the parties on the
object and its price.[12] Not all elements of the sale
were established by the testimony of SPO1 Gonzales,
viz:

PROSECUTOR to SPO1 GONZALES

PROSECUTOR to SPO1 GONZALES

Q: After you have prepared the boodle
money and you had made the proper
marking which you presented before
this Honorable Court, what happen?
A: Out CI make a couple of call and he
contacted William Ong thru a broken
tagalog conversation.
Q: When your CI contacted with William
Ong in broken tagalog?
A: I have a conversation with William Ong
in broken tagalog the deal of one kilo
gram of shabu was initially closed.
Q: When you say closed, what do you mean
by that?
A: They agreed to the sale of the shabu.
ATTY. TRINIDAD (counsel of accused) to
the COURT
We object to the line of questioning, Your
Honor that would be hearsay.
COURT:
I think what you were asking is what
happened he said it was the CI who
talked.
PROSECUTOR to SPO1 GONZALES
Q: So after that, do you know what happen?
A: The CI informed us that the price of
that shabu which were supposed to
buy from them amounts to
600,000.00 pesos, maam.

Q: After the CI informed you that the price

of the shabu is 600,000.00 pesos?
A: We prepared this boodle money and the
6,000 by our Chief SOD.
COURT to SPO1 GONZALES
Q: After the informant told you that there
was an agreement to sell 600,000.00
pesos and that you have already
prepared the boodle money as you have
stated, what happened after that?
A: The CI told us that the transaction is
600,000.00 pesos and venue is at
6th Street, corner Gilmore Avenue,
New Manila, Quezon City, between 4
oclock to 5 oclock in the morning of
July 24, 1998, maam.
Q: So when the CI informed you that they
will meet at 6th Street, New
Manila, Quezon City, what transpired
next?
A: On or about 3 oclock in the morning
William Ong made a call to our CI
informing him that the sale of the
delivery of shabu was reset to another
time.[13]
xxxx
PROSECUTOR to SPO1 GONZALES
Q: And when you were informed that there
was a resetting of this deal?
COURT to SPO1 GONZALES
Q: How did you come to know that there
was a resetting because he has no
participation in the conversation and it
was the CI according to him and the
alleged poseur-buyer.
A: The CI told our Chief Deputy.
ATTY. TRINIDAD to the COURT
That would be hearsay, Your Honor, and that
would be a double hearsay.
COURT

Q: Where did you come to know about this

information that the amount is already
600,000.00 pesos?

Put on record that the counsel manifested

that his answer is again hearsay and
that a double hearsay evidence.

ATTY. TRINIDAD to the COURT

PROSECUTOR to SPO1 GONZALES

Already answered, Your Honor.

Q: And what did the CI do?

COURT:

A: The CI informed us that the time will

be at about 2 to 3 oclock in the
afternoon of that same day and the
place.[14]
It is abundantly clear that it was the CI who
made the initial contact, albeit only through the
telephone, with the pusher. The CI was likewise the
one who closed the deal with appellant Ong as to the
quantity of shabu to be purchased and its price. He
also set the venue and time of the meeting when
the sale would take place. The Joint Affidavit of
Arrest[15]executed by SPO1 Gonzales, PO2 Elmer N.
Sarampote and PO1 Noli Jingo G. Rivel fortifies
these facts, viz:
xxxx
That after couple of calls made by our CI, suspect
WILLIAM ONG was finally contacted on or about
9:30 in the evening of July 23, 1998 and through a
broken Tagalog conversation, a drug deal/sale was
initially closed in the agreed amount of six
hundred thousand pesos (P600,000.00) and the
agreed venue is at the corner of 6th Street and
Gilmore Avenue, New Manila, Quezon City between
4:00 and 5:00 oclock in the morning of July 24, 1998
through Kaliwaan or Abutan (Cash upon Delivery);
That said information was relayed to our Deputy
Chief, who upon learning said report, immediately
grouped and briefed the team for the said operation;
xxxx
That on or about 3:00 oclock in the morning of July
24, 1998, WILLIAM ONG made a call to our
CI informing him (CI) to reset the time of the drug
deal/sale of one (1) kilogram of SHABU and it was
scheduled again between 2:00 to 3:00 oclock in the
afternoon of same date and same place;
It is therefore understandable that in his account
of his meeting with appellant William Ong, SPO1
Gonzales made no reference to any further
discussion of the price and the quantity of the
shabu. When they met, they just proceeded with the
exchange of money and shabu, viz:
PROSECUTOR to SPO1 GONZALES
Q: And when you were there stationed at the
venue at 6th Street, New
Manila, Quezon City, what happened?
A: I and the CI parked our car at 6th Street
corner Gilmore Avenue and then we
saw William Ong emerged from
Gilmore Avenue and approached me
and our CI, maam.[16]
xxxx
Q: And when he approached you what did
you do if any?

A: Our CI introduced me to William Ong as

an interested buyer of one kilo gram of
shabu and afterwards I asked William
Ong in broken tagalog to get inside the
car.[17]
xxxx
Q: And while inside the car, what happened
next?
A: While inside the car William Ong asked
me about the payment of the stuff and I
got the paper bag and slightly
opened. So that I get the plastic bag and
show to William Ong the boodle
money.
Q: When you showed the boodle money to
William Ong what did he do if there
was any?
A: He looked at it, maam.
Q: And when he looked at it what happened
next?
A: I told him that I should look at the stuff
before I give the money.
Q: What stuff are you referring to?
A: The shabu, maam.
Q: And what did you do after expecting the
boodle money or the bag where the
boodle money was placed, if there was
any?
A: He excused himself and alighted from
our car and told me to wait for his
companion.
Q: And where you able to wait for that male
companion he is referring to?
A: He walked a distance and waved at his
companion as if somebody will come to
him.
Q: How did he do that?
A: (put on record that the witness when
answering the question he stood up and
then used his right hand in waving as if
he is calling for somebody)
Q: When William Ong waved his right hand
to his companion what happened?
A: William Ong walked towards to me and
suddenly a green Toyota appeared and
parked in front of our car.
Q: When a green Toyota corolla was parked
in front of the car, what happened next?
A: Chinese looking male person alighted
from the car and he went to William
Ong and handed to William Ong
something that was gift wrapped.[18]

xxxx
Q: When that thing was handed to William
Ong which identified in Court and
which was marked, what did William
Ong do?
A: William Ong took it from Ching De
Ming, maam.
Q: When this Exhibit was given to by
William Ong what did you do in return?
A: I opened that something which was gift
wrapped and I saw one sealed plastic
bag containing white crystalline
substance suspected to be a shabu.[19]
xxxx
Q: When you saw this Exhibit C-2
crystalline substance which was opened
according to you. What did you do?
A: The companion of William Ong
demanded to me the money and I gave
to him the boodle money.
Q: When you gave the boodle money to
him, what did he do if any these person
who secured the money?
A: He took the money inside the bag.[20]
Since only the CI had personal knowledge of
the offer to purchase shabu, the acceptance of the
offer and the consideration for the offer, we hold that
SPO1 Gonzales is, in effect,not the poseur-buyer
but merely the deliveryman. His testimony
therefore on material points of the sale of shabu is
hearsay and standing alone cannot be the basis of the
conviction of the appellants.[21]
III
We further hold that the prosecution failed to
establish its claim of entrapment.
A buy-bust operation is a form of entrapment,
which in recent years has been accepted as a valid
means of arresting violators of the Dangerous Drugs
Law.[22] It is commonly employed by police officers
as an effective way of apprehending law offenders in
the act of committing a crime. [23] In a buy-bust
operation, the idea to commit a crime originates from
the offender, without anybody inducing or prodding
him to commit the offense.[24] Its opposite is
instigation or inducement, wherein the police or its
agent lures the accused into committing the offense
in order to prosecute him.[25] Instigation is deemed
contrary to public policy and considered an
absolutory cause.[26]
To determine whether there was a valid
entrapment or whether proper procedures were
undertaken in effecting the buy-bust operation, it is
incumbent upon the courts to make sure that the
details of the operation are clearly and adequately
laid out through relevant, material and competent

evidence. For, the courts could not merely rely on but

must apply with studied restraint the presumption of
regularity in the performance of official duty by law
enforcement agents. This presumption should not by
itself prevail over the presumption of innocence and
the constitutionally protected rights of the individual.
[27]
It is the duty of courts to preserve the purity of
their own temple from the prostitution of the criminal
law through lawless enforcement.[28]Courts should
not allow themselves to be used as instruments of
abuse and injustice lest innocent persons are made to
suffer the unusually severe penalties for drug
offenses.[29]
In People v. Doria,[30] we stressed the objective
test in buy-bust operations. We ruled that in such
operations, the prosecution must present a complete
picture detailing the transaction, which must start
from the initial contact between the poseur-buyer and
the pusher, the offer to purchase, the promise or
payment of the consideration until the consummation
of the sale by the delivery of the illegal drug subject
of the sale.[31] We emphasized that the manner by
which the initial contact was made, the offer to
purchase the drug, the payment of the 'buy-bust'
money, and the delivery of the illegal drug must be
the subject of strict scrutiny by courts to insure that
law-abiding citizens are not unlawfully induced to
commit an offense.[32]
In the case at bar, the prosecution evidence
about the buy-bust operation is incomplete. The
confidential informant who had sole knowledge of
how the alleged illegal sale ofshabu started and how
it was perfected was not presented as a witness. His
testimony was given instead by SPO1 Gonzales who
had no personal knowledge of the same. On this
score, SPO1 Gonzales testimony is hearsay and
possesses no probative value unless it can be shown
that the same falls within the exception to the hearsay
rule.[33] To impart probative value to these hearsay
statements and convict the appellant solely on this
basis would be to render nugatory his
constitutional right to confront the witness against
him, in this case the informant, and to examine him
for his truthfulness.[34] As the prosecution failed to
prove all the material details of the buy-bust
operation, its claim that there was a valid entrapment
of the appellants must fail.
IV
The Court is sharply aware of the compelling
considerations why confidential informants are
usually not presented by the prosecution. One is the
need to hide their identity and preserve their
invaluable service to the police.[35] Another is the
necessity to protect them from being objects or
targets of revenge by the criminals they implicate
once they become known. All these considerations,
however, have to be balanced with the right of an
accused to a fair trial.
The ruling of the U.S. Supreme Court
in Roviaro v. U.S.[36] on informers privilege is

instructive. In said case, the principal issue

on certiorari is whether the United States District
Court committed reversible error when it allowed the
Government not to disclose the identity of an
undercover employee who had played a material
part in bringing about the possession of certain drugs
by the accused, had been present with the accused
at the occurrence of the alleged crime, and might be
a material witness to whether the accused
knowingly transported the drugs as charged.[37] The
Court, through Mr. Justice Burton, granted certiorari
in order to pass upon the propriety of disclosure of
the informers identity.
Mr. Justice Burton explained that what is usually
referred to as the informers privilege is in reality the
Governments privilege to withhold from disclosure
the identity of persons who furnish information of
violations of law to officers charged with
enforcement of that law.[38] The purpose of the
privilege is the furtherance and protection of the
public interest in effective law enforcement. The
privilege recognizes the obligation of citizens to
communicate their knowledge of the commission of
crimes to law-enforcement officials and, by
preserving their anonymity, encourages them to
perform that obligation.
It was held that the scope of the privilege is
limited by its underlying purpose. Thus, where the
disclosure of the contents of the communication will
not tend to reveal the identity of an informer, the
contents are not privileged.[39] Likewise, once the
identity of the informer has been disclosed to
those who would have cause to resent the
communication, the privilege is no longer
applicable.[40]
A further limitation on the applicability of the
privilege, which arises from the fundamental
requirements of fairness was emphasized. Where the
disclosure of an informers identity, or the contents of
his communication, is relevant and helpful to the
defense of an accused, or is essential to a fair
determination of a cause, the privilege must give
way.[41] In these situations, the trial court may require
disclosure and dismiss the action if the Government
withholds the information.[42]
In sum, there is no fixed rule with respect to
disclosure of the identity of an informer. The
problem has to be resolved on a case to case basis
and calls for balancing the state interest in protecting
people from crimes against the individuals right to
prepare his defense. The balance must be adjusted by
giving due weight to the following factors, among
others: (1) the crime charged, (2) the possible
defenses, (3) the possible significance of the
informers testimony, and (4) other relevant factors.[43]
In the case at bar, the crime charged against the
appellants is capital in character and can result in the
imposition of the death penalty. They have foisted the
defense of instigation which is in sharp contrast to
the claim of entrapment by the prosecution. The

prosecution has to prove all the material elements of

the alleged sale of shabu and the resulting buy-bust
operation. Where the testimony of the informer is
indispensable, it should be disclosed. The liberty and
the life of a person enjoy high importance in our
scale of values. It cannot be diminished except by a
value of higher significance.
V
Moreover, the mishandling and transfer of
custody of the alleged confiscated methyl
amphetamine hydrochloride or shabu further
shattered the case of the prosecution. There is no
crime of illegal sale of regulated drug when there is a
nagging doubt on whether the substance confiscated
was the same specimen examined and established to
be regulated drug.
After the arrest of the appellants, the records
show that the substance allegedly taken from them
was submitted to the PNP Crime Laboratory for
examination upon request of the Chief of the SOD
Narcotics Group, Quezon City.[44] Police Inspector
Grace M. Eustaquio, Forensic Chemist, PNP Crime
Laboratory, testified that the qualitative examination
she conducted manifested positive results for methyl
amphetamine hydrochloride with net weight of
980.50 grams.[45] This is not in dispute. The issue is
whether the substance examined was the same as that
allegedly confiscated from appellants.
The Joint Affidavit of Arrest[46] merely states that
the evidence confiscated was submitted to the PNP
Crime
Laboratory
Group
for
qualitative
examination. SPO1 Gonzales testified on direct
examination that:
Q: When you arrested them according to
you, what other steps did you take if
any?
A: We brought them to our office and we
requested
the
crime
laboratory Camp Crame to test the
suspected shabu that we recovered from
both of them.[47]
On cross-examination, the defense only got this
statement from SPO1 Gonzales regarding the
evidence allegedly confiscated:
Q: And you immediately brought him to
your office at Camp Aguinaldo?
A: After we gathered the evidences we
turned them over to our office, sir.[48]
Clearly, there was no reference to the person
who submitted it to the PNP Crime Laboratory for
examination. It is the Memorandum-Request for
Laboratory Examination[49] which indicates that a
certain SPO4 Castro submitted the specimen for
examination. However, the rest of the records of the
case failed to show the role of SPO4 Castro in the
buy-bust operation, if any. In the Joint Affidavit of
Arrest, the only participants in the operation were

enumerated as SPO1 Gonzales as the poseur-buyer,

Police Inspector Medel M. Poe as the team leader
with PO2 Elmer N. Sarampote and PO1 Noli Jingo
G. Rivel as back-up support.[50] Other members of the
team who acted as perimeter security were not
identified. In fact, when SPO1 Gonzales was asked
during the trial as to their identities, he was only able
to name another member of the team:
Q: When you say team, who compose the
team?
A: I and more or less eight (8) person,
maam.
Q: Can you name the member of the team?
A: Our team led by Inspector Medel Poe, I
myself, PO2 Elmer Sarampote, PO1
Noli Jingo G. Rivel, SPO3 Ronaldo
Sayson, and I can not remember the
others, maam.[51]
These are questions which cannot be met with
a lockjaw. Since SPO4 Castro appears not to be a
part of the buy-bust team, how and when did
he[52] get hold of the specimen examined by Police
Inspector Eustaquio? Who entrusted the substance to
him and requested him to submit it for
examination? For how long was he in possession of
the evidence before he turned it over to the PNP
Crime Laboratory? Who else had access to the
specimen from the time it was allegedly taken from
appellants when arrested? These questions should be
answered satisfactorily to determine whether the
integrity of the evidence was compromised in any
way. Otherwise, the prosecution cannot maintain that
it was able to prove the guilt of the appellants beyond
reasonable doubt.
VI
Finally, the denials and proffered explanations of
appellants assume significance in light of the
insufficiency of evidence of the prosecution.
Appellant Ong testified that he was arrested
on July 23, 1998 when he was scheduled to meet
with a certain Ong Sin for a possible job as
technician in a bihon factory. On his part, appellant
De Ming claimed that when he was arrested on July
23, 1998, he was in the area waiting for his girlfriend
and her mother who just went inside a townhouse
at 8th Street,
New
Manila, Quezon
City. His
girlfriends mother, Avelina Cardoz, confirmed his
explanation. The prosecution tells a different story,
the uncorroborated story of SPO1 Gonzales that their
team entrapped the appellants in a buy-bust operation
on July 24, 1998. Our minds rest uneasy on the lone
testimony of SPO1 Gonzales.
WHEREFORE, the Decision of the court a quo
is REVERSED and SET ASIDE. Appellants
WILLIAM ONG y LI and CHING DE MING @
ROBERT TIU, are ACQUITTED of the crime of
violation of Section 15, Article III, in relation to

Section 2, Article I of R.A. No. 6425, otherwise

known as The Dangerous Drugs Act of 1972, as
amended, and are ordered immediately released from
custody unless held for some other lawful cause.
The Director of Prisons is DIRECTED to
implement this decision immediately and to inform
this Court within five (5) days from receipt of this
decision of the date the appellants are actually
released from confinement. Costs de officio.
SO ORDERED.

(204) grams of white crystalline substance known as

Shabu containing methamphetamine hydrochloride, a
regulated drug, without the corresponding license or
prescription thereof.
Contrary to law.[2]
Upon arraignment, appellant, assisted by
counsel, pleaded not guilty to the offense charged.
[3]
Subsequently, at the pre-trial conference on August
10, 1999, the parties stipulated that (1) the subject
Search Warrant is valid; and (2) the Forensic Chemist
conducted only a qualitative examination on the
subject specimen.[4]
The prosecution presented the following
witnesses: (1) Police Inspector Edwin Zata, Forensic
Chemical Officer of the Philippine National Police
(PNP) Crime Laboratory; (2) PO2 Gerardo Abulencia
(PO2 Abulencia); (3) SPO1 Edgardo G. Fernandez
(SPO1 Fernandez); and (4) SPO1 Ver M. Serquea
(SPO1 Ver Serquea) whose testimonies sought to
establish the following facts:
On April 28, 1999, SPO1 Fernandez, SPO1
Serquea and a confidential informant conducted a test
buy operation at the residence of appellant at 1480
General Luna Street, Ermita, Manila during which
they purchased from him P1,500.00 worth of
methamphetamine hydrochloride or shabu.[5] The
police officers did not immediately arrest him,
however. Instead, they applied for a Search Warrant
for appellants residence from the Regional Trial
Court (RTC) of Pasay City[6] based on their firm
belief that there was a large quantity of illegal drugs
in his house.[7]
3. PEOPLE OF THE PHILIPPINES, appellee,
vs. BENNY GO, appellant.
DECISION
CARPIO-MORALES, J.:
On direct appeal before this Court is the
Decision of the Regional Trial Court of Manila,
Branch 41, in Criminal Case No. 99-174439 finding
appellant Benny Go guilty of violating Section 16,
Article III in relation to Section 2 (e-2), Article I of
Republic Act No. 6425,[1] as amended, and
sentencing him to suffer the penalty of reclusion
perpetua and to pay a fine ofP1,000,000.00.
The Information filed against appellant charged
as follows:
That on or about June 14, 1999, in the City of
Manila, Philippines, the said accused without being
authorized by law to possess or use any regulated
drug, did then and there willfully, unlawfully and
knowingly have in his possession and under his
custody and control one (1) knot tied transparent
plastic bag containing TWO HUNDRED FOUR

On June 14, 1999, a raiding team composed of

SPO1 Fernandez and SPO1 Serquea, together with
PO2 Abulencia, PO3 Noel Adtu and PO2 Gerardo
Jimenez,[8] proceeded to appellants above-said
residence armed with Search Warrant No. 990038[9] issued by Br. 109 of the RTC of Pasay City
commanding them to make an immediate search
anytime of the day or night of appellants residence
and
to
seize
and
take
possession
of
METAMPHETAMINE
HYDROCHLORIDE
(Shabu), weighing scale, other drug paraphernalias
and proceeds of the above crime.
Soon after the police officers arrived at
appellants residence at around 6:00 in the evening,
[10]
they, to enable them to gain entry to the twostorey house, sideswept (sinagi) a little appellants
Toyota Corolla GLI car which was parked outside.
[11]
Jack Go, appellants son and the only one present
at the house at the time, thereupon opened the door of
the house and the policemen at once introduced
themselves, informed him that they had a warrant for
the search of the premises, and promptly handcuffed
him to a chair. SPO1 Fernandez, SPO1 Serquea and
PO2 Abulencia entered the house, while PO3 Adtu
and PO2 Jimenez remained outside. [12]

On instruction of SPO1 Fernandez, SPO1

Serquea left to summon barangay officials to witness
the search. SPO1 Serquea returned five minutes later
with Barangay
Kagawads Gaspar
Lazaro
(Kagawad Lazaro)
and
Emmanuel
Manalo
(Kagawad Manalo) who were advised by SPO1
Fernandez to be witnesses to the search and to
afterwards sign the inventory receipt and affidavit of
orderly search.
As
instructed,
the
two barangay
kagawads proceeded to the upper floor of appellants
house with SPO1 Serquea and PO2 Abulencia.
[13]
While SPO1 Fernandez, who remained downstairs
in the sala,[14] instructed the handcuffed Jack Go to
witness the search, the latter refused since there will
be no more left in the sala of the house anyway there
is a barangay official.[15]
In the course of the search of the premises which
took place from 6:00 to 11:00 in the evening,
[16]
Kagawad Lazaro and PO2 Abulencia recovered
one knot tied transparent plastic bag containing white
crystalline substance[17] from the drawer of a cabinet.
Also seized from the residence of appellant were
the following: (a) one plastic bag containing
yellowish substance[18] found by SPO1 Serquea;
[19]
(b) a weighing scale discovered by SPO1
Fernandez; (c) assorted documents; (d) passports; (e)
bank books; (f) checks; (g) a typewriter; (h) a check
writer; (i) several dry seals and (j) stamp pads; [20] (k)
Chinese and Philippine currency;[21] (l) and appellants
Toyota Corolla GLI[22] car (the car).
The plastic bag containing the white crystalline
substance was marked by SPO1 Fernandez as EGFA-1, while the plastic bag with the yellowish
substance was marked as EGF-A-2.[23]
With the exception of the car, all the seized items
were brought to the dining table on the ground floor
of appellants house for inventory.[24]
In the meantime, appellants wife Shi Xiu Ong
and his friends Samson Go and Peter Co arrived one
after the other at the house.[25] Appellant himself
arrived at 9:30 in the evening when the search was
almost through.[26]
After the inventory had been taken, SPO1
Fernandez prepared a handwritten Inventory
Receipt[27] and a document captioned Affidavit of
Orderly Search,[28] the contents of which he read to
appellant. On instruction of SPO1 Fernandez, Jack
Go also explained the contents of the documents to
appellant
who
then
signed
them
as
did kagawads Manalo and Lazaro and Jack Go as
witnesses.[29]
The police officers then brought appellant, his
wife, son and friends, along with the seized items, to
Camp Bagong Diwa, Bicutan, Taguig, Metro Manila
for verification and investigation.

Appellant was detained while the others were

eventually released. [30] The arresting officers jointly
prepared an Affidavit of Arrest dated June 15,
1999[31] which, among other things, contained an
enumeration of the seized items identical to that in
the handwritten Inventory Receipt. And SPO1
Fernandez prepared a Return of Search Warrant 990038 dated June 18, 1999 and a referral paper
1st Indorsement[32] with the same enumeration of
seized items.
Also on June 15, 1999, SPO1 Serquea brought
the plastic bag containing the white crystalline
substance (Exhibit A) and the plastic bag containing
the yellowish substance (Exhibit B) to the PNP
Crime Laboratory[33] together with a request for
laboratory
examination.[34] Upon
examination,
Exhibit A was found to contain 204 grams of white
crystalline substance containing methamphetamine
hydrochloride, a regulated drug.[35] Exhibit B, on the
other hand, was found negative for any prohibited
and/or regulated drug.[36]
Meanwhile, the seized documents, passports, dry
seals and stamp pads were brought to the Bureau of
Immigration and Deportation,[37] while the bank
books were forwarded to the corresponding banks for
verification.[38]
The prosecution presented in evidence the
Yamato weighing scale,[39] claimed to have been
recovered by SPO1 Fernandez from the top of
appellants refrigerator,[40] although it was not among
those listed in the handwritten Inventory Receipt,
Affidavit of Arrest or Return of the Search Warrant.
[41]
Also presented by the prosecution, as a hostile
witness, to corroborate in part the foregoing facts
was Kagawad Lazaro. He claimed, however, that the
first page of the handwritten Inventory Receipt
submitted in evidence had been substituted with
another, asserting that he and the other witnesses
affixed their signatures on the left-hand margin of the
first page of the handwritten Inventory Receipt which
they were asked to sign whereas that submitted in
court did not bear their signatures.[42]
Kagawad Lazaro further claimed that the first
entry on the first page of the Inventory Receipt,
whereon he and his co-witnesses affixed their
signatures, reading Chinese Medicine had been
replaced with undetermined quantity of white
crystalline granules;[43] that what was recovered from
the room of Jack Go by PO2 Abulencia was Exhibit
B, the plastic bag containing the yellowish powder,
and not Exhibit A, the plastic bag containing the
suspected shabu; and that Exhibit A was not even
among the items seized and inventoried.[44]
The defense, which adopted the testimony
of Kagawad Lazaro, presented appellant, his son Jack
Go, and Kagawad Manalo whose version of the facts
of the case follows:
In November 1998, while appellant was walking
along Gen. Luna Street, he was accosted by SPO1

Serquea and another police officer who accused him

of manufacturing shabu and divested him of money
amounting to more than P5,000.00. He was later
released as the policemen could not charge him with
anything.[45]
On July 14, 1999 at around 5:30 in the
afternoon, Jack Go opened the door of their house
after hearing somebody shout that the car had been
bumped. Five armed policemen then entered the
house, one of whom handcuffed him while two went
up to the upper floor of the house and searched for
about thirty (30) minutes. [46]
At past 6:00 p.m., as the two kagawads entered
the house which was already in disarray, SPO1
Fernandez formed two groups to conduct the search
at the second floor: (1) that of PO2 Abulencia,
with Kagawad Lazaro to serve as witness, and (2)
that of SPO1 Serquea, with Kagawad Manalo to
serve as witness.[47]
PO2 Abulencia, together with Kagawad Lazaro,
searched the room of Jack Go. SPO1 Serquea,
accompanied by Kagawad Manalo, searched the
study room where he seized documents, passports
and assorted papers.
SPO1 Serquea and Kagawad Manalo then
proceeded to the room of appellant followed by PO2
Abulencia and Kagawad Lazaro. From the room of
appellant, the policemen seized documents,
passports, bankbooks and money.[48]
After the search, the policemen and barangay
kagawads went down with three boxes containing
passports, money and assorted Chinese medicine.[49]
When appellants wife arrived at around 7:30
p.m.,[50] SPO1 Fernandez ordered her to open the safe
(kaha de yero) inside appellants room where the
police officers seized money, passports, bankbooks,
Chinese currency and pieces of jewelry.[51]
The seized items were placed on appellants table
on the first floor of the house where they were
inventoried by SPO1 Fernandez[52] during which
the barangay kagawads did not see either Exhibit A,
the plastic bag containing the suspected shabu, or the
weighing scale.[53]
After SPO1 Fernandez prepared a two-page
Inventory Receipt and Affidavit of Orderly Search,
he asked Jack Go to sign the receipt. While Jack Go
initially refused, he eventually did sign both
documents without having read them completely
after he was hit by the policemen. The two barangay
kagawads also signed both pages of the Inventory
Receipt as witnesses.[54]
When appellant arrived at around 8:30 p.m., he
was handcuffed and likewise made to sign the
Inventory Receipt without having been able to read
its contents.[55] Jack Go was prevented from
explaining its contents to him.[56]

The first page of the handwritten Inventory

Receipt presented in court, which includes an
undetermined quantity of white crystalline granules
placed inside a transparent plastic envelope as among
those seized from the residence of appellant, does not
bear the signatures of appellant, the kagawads and
Jack Go, hence, it is not the same first page of the
handwritten Inventory Report on which they affixed
their signatures.[57] In fact the policemen did not leave
a copy of this Inventory Receipt with either appellant
or the barangay kagawads.[58]
The policemen continued to search appellants
residence until around 11:00 p.m. when they brought
appellant, Jack Go, Shi Xiu Ong, Samson Go and
Peter Co, together with the seized items, to Bicutan.
[59]

On the way to Bicutan, PO2 Abulencia, who

boarded the same vehicle as appellant, told the latter
that the policemen wanted P10,000,000.00 from him
or he would be charged with possession of illegal
drugs. The amount demanded was later reduced
to P5,000,000.00, then to P2,000,000.00, and finally
to P500,000.00. Appellant refused, however, to heed
the policemens demands since he did not commit any
crime.[60]
Finding for the prosecution, the trial court
rendered the appealed Decision on June 7, 2000, the
dispositive portion of which reads:
WHEREFORE, judgment is hereby ordered rendered
finding the accused Benny Go guilty of the offense
charged in the information and sentencing him to
suffer the penalty of reclusion perpetua and a fine of
One Million Pesos (P1,000,000.00).
The subject shabu is hereby ordered forfeited in favor
of the government and the Clerk of Court is hereby
directed to deliver and/or cause the delivery of the
said shabu to the Dangerous Drugs Board for proper
disposition, upon the finality of this Decision.
SO ORDERED.[61]
His Motion for Reconsideration[62] of the
decision having been denied by Order of July 24,
2000,[63] appellant lodged the present appeal. In his
Brief,[64] he assigns the following errors:
FIRST ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN ACCORDING
THE POLICE OFFICERS THE PRESUMPTION
OF REGULARITY IN THE PERFORMANCE
OF DUTY IN IMPLEMENTING THE SEARCH
WARRANT BASED ON THEIR TESTIMONIES,
THERE BEING CONVINCING PROOFS TO THE
CONTRARY.
SECOND ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED IN HOLDING

THAT 204 GRAMS OF SHABU WAS
RECOVERED FROM THE HOUSE OF
ACCUSED-APPELLANT ON JUNE 14, 1999
BASED ON THE TESTIMONY OF PO1
GERARDO ABULENCIA AND THE
SUPPORTING INVENTORY RECEIPT, BOTH OF
WHICH WERE COMPLETELY CONTRADICTED
BY THE PROSECUTION WITNESS BARANGAY
KAGAWAD GASPAR LAZARO AS WELL AS BY
DEFENSE WITNESSES.
THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT ERRED IN RENDERING
JUDGMENT FINDING ACCUSEDAPPELLANT GUILTY OF ILLEGAL
POSSESSION OF TWO HUNDRED FOUR (204)
GRAMS OF SHABU AS CHARGED IN THE
INFORMATION AND SENTENCING HIM TO
SUFFER THE (sic) PENALTY OF RECLUSION
PERPETUA AND A FINE OF ONE MILLION
PESOS (P1,000,000.00), INSTEAD OF
ACQUITTING ACCUSED-APPELLANT FOR
FAILURE OF THE PROSECUTION TO PROVE
HIS GUILT BEYOND REASONABLE DOUBT.
[65]
(Emphasis supplied)
During the pendency of the appeal, appellant
filed a verified Motion for Return of Personal
Documents, Vehicle and Paraphernalia dated
September 10, 2001[66] praying for the release of the
following seized properties:
a. several pcs. transparent plastic envelopes
b. one (1) unit Toyota Corolla GLI with PN
UTT 658
c. Cash amounting to Fifty Two Thousand
Seven Hundred Sixty Pesos
(P52,760.00) in different
denominations
d. Twenty-Five Thousand Chinese Yuan
(CY25,000.00)
e. Sixty-Seven (67) pieces of Chinese
passports
f. Twenty-Eight (28) pieces of assorted
bankbooks
g. Two Hundred Eighty Five (285) pieces of
assorted checks
h. Fifty-Three (53) pcs. rubber stamp and
related paraphernalia
i. One (1) piece Underwood typewriter with
SN 9861952

j. One (1) piece check writer

k. Two (2) pieces of dry seal
m. Five (5) boxes of assorted documents
n. Three (3) bags of assorted documents[67]
This Court is thus called upon to determine (1)
whether appellants guilt has been proven beyond
reasonable doubt; and (2) whether the items
enumerated in appellants Motion for Return of
Personal Documents, Vehicle and Paraphernalia,
which items are allegedly not among those
particularly described in Search Warrant No. 990038, should be returned to him.These issues shall be
resolved in seriatim.
Illegal Possession of 204 Grams of Shabu
As appellant questions the legality of the search
of his residence, the actions of the police officers, as
agents of the State, must be carefully considered in
light of appellants right against unreasonable
searches and seizures guaranteed by Sections 2 and 3,
Article III of the Constitution.[68]
What constitutes a reasonable or unreasonable
search or seizure is a purely judicial question
determinable from a consideration of the attendant
circumstances including the purpose of the search,
the presence or absence of probable cause, the
manner in which the search and seizure was made,
the place or thing searched, and the character of the
articles procured.[69]
Since no presumption of regularity may be
invoked by an officer to justify an encroachment of
rights secured by the Constitution,[70] courts must
cautiously weigh the evidence before them. As early
as in the 1937 case of People v. Veloso,[71] this Court
held:
A search warrant must conform strictly to the
requirements of the constitutional and statutory
provisions under which it is issued. Otherwise, it is
void. The proceedings upon search warrants, it has
rightly been held, must be absolutely legal, for there
is not a description of process known to law, the
execution of which is more distressing to the
citizen. Perhaps there is none which excites such
intense feeling in consequence of its humiliating and
degrading effect. The warrant will always be
construed strictly without, however, going the full
length of requiring technical accuracy. No
presumptions of regularity are to be invoked in
aid of the process when an officer undertakes to
justify under it.[72] (Emphasis supplied; citations
omitted)
Indeed, a strict interpretation of the
constitutional, statutory and procedural rules
authorizing search and seizure is required, and strict
compliance therewith is demanded because:

x x x Of all the rights of a citizen, few are of greater

importance or more essential to his peace and
happiness than the right of personal security, and that
involves the exemption of his private affairs, books,
and papers from the inspection and scrutiny of
others. While the power to search and seize is
necessary to the public welfare, still it must be
exercised and the law enforced without transgressing
the constitutional rights of citizens, for the
enforcement of no statute is of sufficient importance
to justify indifference to the basic principles of
government.[73]
In arriving at the appealed decision, the trial
court placed greater weight on the testimony of the
police officers to whom it accorded the presumption
of regularity in the performance of duty, viz:
Coming to the first issue raised, the Court gives
credence to the testimonies of the police officers
and accords them the presumption of regularity in
the performance of their duty. The Court has
observed the demeanor of the witnesses and finds
the prosecution witnesses more credible than the
defense witnesses. x x x
On the other hand, there is no showing that the
police officers had ill motive when they applied
for and secured the Search Warrant, raided the
house of the accused and arrested him. Accused is
a Chinese national who appeared to have no quarrel
with the arresting police officers and thus the police
officers had no reason to fabricate or trump up
charges against him. Hence, there appears to be no
reason the police officers should not be accorded
the presumption of regularity in the performance
of their duty. As held by the Supreme Court, (L)aw
enforcers are presumed to have regularly performed
their official duty, in the absence of the evidence to
the contrary. x x x We see no valid obstacle to the
application of the ruling in People vs. Capulong, (160
SCRA 533 {1988}) that credence is accorded to the
testimonies of the prosecution witnesses who are
law enforcers for it is presumed that they have
regularly performed their duty in the absence of
convincing proof to the contrary.The appellant has
not shown that the prosecution witnesses were
motivated by any improper motive other than that of
accomplishing their mission. (People of the
Philippines, Plaintiff-appellee, vs. Said Sariol Y
Muhamading, accused-appellant, 174 SCRA 238).
[74]
(Emphasis supplied)
At the same time, the trial court based its finding
that the search of appellants residence was proper
and valid on the so-called Affidavit of Orderly
Search.
On the second issue raised, the validity of the
Search Warrant is clearly shown by the Affidavit
of Orderly Search signed by the accused and his
son Jack Go and his witnesses Salvador Manalo

and Gaspar Lazaro. Such Affidavit of Orderly

Search coupled with the testimonies of the police
officers have clearly established the propriety and
validity of the search.[75] (Emphasis supplied)
The rule that a trial courts findings are accorded
the highest degree of respect, it being in a position to
observe the demeanor and manner of testifying of the
witnesses,[76] is not absolute and does not apply when
a careful review of the records and a meticulous
evaluation of the evidence reveal vital facts and
circumstances which the trial court overlooked or
misapprehended and which if taken into account
would alter the result of the case.[77]
In the case at bar, an examination of the
testimonies of the police officers brings to light
several irregularities in the manner by which the
search of appellants residence was conducted.
By PO2 Abulencias own account, in order to
enter the premises to be searched, the police officers
deliberately side-swiped appellants car which was
parked alongside the road, instead of following the
regular knock and announce procedure as outlined in
Section 7 (formerly Section 6), Rule 126 of the Rules
of Court.[78]
Q Mr. Witness, how did you enter the house
of Benny Go?
A Its really heard (sic) to enter the
house. Before the door, there was a still
(sic) supporting the door and they will
not allow us to enter because they dont
know us. Then, in order that we could
enter the house, we side swept
(sinagi) a little the vehicle that was
parked in front of their house. And
their neighbor knocked at the house
of the subject and thats the time that
we were able to enter.[79] (Emphasis
supplied)
Since the police officers had not yet notified the
occupant of the residence of their intention and
authority to conduct a search and absent a showing
that they had any reasonable cause to believe that
prior notice of service of the warrant would endanger
its successful implementation, the deliberate
sideswiping of appellants car was unreasonable and
unjustified.
Also by PO2 Abulencias own account, upon
entry to appellants residence, he immediately
handcuffed Jack Go to a chair. Justifying his action,
PO2 Abulencia explained that not only was he
unfamiliar with Jack Go and unsure of how the latter
would react, but it was a standard operating
procedure:
Pros. Rebagay:
Now, what happened on June 14, 1999 at
6:00 p.m. when you were armed with

the Search Warrant issued by Judge

Lilia Lopez?
A We entered inside the house of the subject
and we were able to see (nadatnan
naming) Jack Go, the son of Benny Go,
sir.
xxx
Q And what was the reaction of Jack Go, if
any?
A We introduced ourselves as police officers
and we have a Search Warrant to
conduct a search to the above subject
place and also we handcuffed Jack
Go to the chair, sir.
Q Why did you do that, Mr. witness?
A Hindi naming kakilala iyong mga tao,
sir kaya ganoon ang ginawa namin
para hindi kami maano, eh hindi
naming kabisado iyong ugali, sir.
Pros. Rebagay:
And is that an (sic) standard operating
procedure Mr. witness, when you are
serving a search warrant?
A Yes, sir.[80] (Emphasis supplied)
There is no showing, however, of any action or
provocation by Jack Go when the policemen entered
appellants residence. Considering the degree of
intimidation, alarm and fear produced in one
suddenly confronted under similar circumstances, the
forcible restraint of Jack Go all the more was
unjustified as was his continued restraint even
after Barangay Kagawads Lazaro and Manalo had
arrived to justify his forcible restraint.
While Search Warrant No. 99-99-0038
authorized the immediate search of appellants
residence
to
seize
METAMPHETAMINE
HYDROCHLORIDE (Shabu), weighing scale, other
drug paraphernalias and proceeds of the above crime,
the policemen, by SPO1 Fernandezs admission,
seized numerous other items, which are clearly
unrelated to illegal drugs or illegal drug
paraphernalia:
Q In the presence of the barangay officials,
what are those items which you seized
or your raiding team seized, if any?
A With the permission of the Honorable
Court, Your Honor, can I take a look at
my notes.
Court
Proceed.
Witness
Thank you very much.

A Seized or confiscated form the said

residence are: (1) undetermined
quantity of white crystalline granules
placed inside the transparent plastic
envelope, (2) undetermined quantity of
yellowish powder placed inside the
transparent plastic envelope; (3) several
pieces of transparent plastic envelopes;
(4) one unit Toyota Corolla GLI with
Plate No. UPT-658; (5) P52,760.00 in
different denominations; (6) 25,000.00
Chinese Yuan; (7) 67 pieces of Chinese
passports; (8) 28 pieces of assorted
bank book; (9) 285 pieces of assorted
checks; (10) 53 pieces rubber stamps
and related paraphernalia; (11) one
piece Underwood typewriter with Serial
No. 9861952; (12) one piece
checkwriter; (13) two pieces dry seals;
(14) 5 boxes of assorted documents;
(15) 3 bags of assorted documents; and
I will add another one Your Honor, a
weighing scale.[81]
While an inventory of the seized items was
prepared, also by SPO1 Fernandezs admission, it did
not contain a detailed list of all the items seized,
particularly the voluminous documents:
Q Why is it that you did not make a detailed
inventory
or
receipt
of
the
passports? Why did you not give any
detailed receipt or inventory on the
passports.
A There were lots of documents during
the time on the table, voluminous
documents that I was not able to
make a listing of the said passports.
Q And it was only this October 8, 1999 or
four months after that you made a
detailed receipt of those seized items,
am I right?
A Yes, sir.
xxx
Q Is it your standard operating procedure
that when there are voluminous
seized items you will not (sic) longer
made (sic) an inventory report, am I
right?
A Its not an SOP.
Q Why did you not make a detailed
inventory or receipt?
A As
Ive
said
earlier,
its
voluminous. [82] (Emphasis supplied)
In Asian Surety And Insurance Co., Inc. v.
Herrera,[83] this Court stressed the necessity for
a detailed receipt of the items seized in order to

adequately safeguard the constitutional rights of the

person searched:
Moreover, as contended by petitioner, respondents
in like manner transgressed Section 10 of Rule
126 of the Rules for failure to give a detailed
receipt of the things seized. Going over the
receipts(Annexes B B-1, B-2, B-3 and B-4 of the
Petition) issued, We found the following: one
bordereau of reinsurance, 8 fire registers, 1 marine
register, four annual statements, folders described
only as Bundle gm-1 red folders; bundle 17-22 big
carton folders; folders of various sizes,
etc., without stating therein the nature and kind of
documents contained in the folders of which there
were about a thousand of them that were
seized. In the seizure of two carloads of documents
and other papers, the possibility that the
respondents took away private papers of the
petitioner, in violation of his constitutional rights,
is not remote, for the NBI agents virtually had a
field day with the broad and unlimited search warrant
issued by respondent Judge as their passport.
[84]
(Emphasis and underscoring supplied)
After the inventory had been prepared, PO2
Abulencia presented it to appellant for his
signature[85] without any showing that appellant was
informed of his right not to sign such receipt and to
the assistance of counsel. Neither was he warned that
the same could be used as evidence against him.
Faced with similar circumstances, this Court
in People v. Gesmundo[86]stated:
It is true that the police were able to get an admission
from the accused-appellant that marijuana was found
in her possession but said admission embodied in a
document entitled PAGPATUNAY previously
prepared by the police, is inadmissible in evidence
against the accused-appellant for having been
obtained in violation of her rights as a person
under custodial investigation for the commission
of an offense. The records show that the accusedappellant was not informed of her right not to sign
the document; neither was she informed of her
right to the assistance of counsel and the fact that
the document may be used as evidence against
her.[87] (Emphasis and underscoring supplied,
citations omitted)
In People v. Policarpio,[88] this Court held that
such practice of inducing suspects to sign receipts for
property allegedly confiscated from their possession
is unusual and violative of the constitutional right to
remain silent, viz:
What the records show is that appellant was informed
of his constitutional right to be silent and that he may
refuse to give a statement which may be used against
him, that is why he refused to give a written
statement unless it is made in the presence of his
lawyer as shown by the paper he signed to this

effect. However, he was made to acknowledge that

the six (6) small plastic bags of dried marijuana
leaves were confiscated from him by signing a
receipt and to sign a receipt for the P20.00 bill as
purchase price of the dried marijuana leaves he sold
to Pat. Mangila.
Obviously the appellant was the victim of a clever
ruse to make him sign these alleged receipts which in
effect are extra-judicial confessions of the
commission of the offense. Indeed it is unusual for
appellant to be made to sign receipts for what
were taken from him. It is the police officers who
confiscated the same who should have signed such
receipts. No doubt this is a violation of the
constitutional right of appellant to remain silent
whereby he was made to admit the commission of
the offense without informing him of his
right. Such a confession obtained in violation of the
Constitution is inadmissible in evidence.
[89]
(Emphasis supplied)
The Inventory Receipt signed by appellant is
thus not only inadmissible for being violative of
appellants custodial right to remain silent; it is also
an indicium of the irregularity in the manner by
which the raiding team conducted the search of
appellants residence.
At the same time, it is unclear whether appellant
was furnished a copy of the Inventory Receipt as
mandated by Sec. 11, Rule 126 of the Rules of Court.
[90]

Q Now, while you were making an

inventory of that, am I right, that you
did not give a copy to Benny Go, am I
right?
A I gave them a xerox copy. I remember I
gave them a xerox copy.
Q Is there any proof that they received an
inventory report?
A Nothing, sir.[91]
Moreover, an examination of Exhibit Z, the
Return of Search Warrant No. 99-0038 submitted by
SPO1 Fernandez to Br. 109 of the RTC of Pasay City
was not verified under oath,[92] as required by Section
12 (a) (formerly Section 12), Rule 126 of the Rules
of Court.[93]
The delivery of the items seized to the court
which issued the warrant together with a true and
accurate inventory thereof, duly verified under oath,
is mandatory in order to preclude the substitution of
said items by interested parties.[94] Under Section 12
of Rule 126,[95] the judge which issued the search
warrant is mandated to ensure compliance with the
requirements for (1) the issuance of a detailed receipt
for the property received, (2) delivery of the seized
property to the court, together with (3) a verified true

inventory of the items seized. Any violation of the

foregoing constitutes contempt of court.
Given the foregoing deviations from the normal
and prescribed manner of conducting a search, as
disclosed by the members of the raiding team
themselves, the reliance by the trial court on the
disputable presumption that the police officers
regularly performed their official duty was evidently
misplaced.
The Affidavit of Orderly Search is not of any
help in indicating the regularity of the search. Not
having been executed under oath, it is not actually an
affidavit, but a pre-prepared form which the raiding
team brought with them. It was filled up after the
search by team leader SPO1 Fernandez who then
instructed appellant to sign it as he did instruct Jack
Go, KagawadManalo and Kagawad Lazaro to sign as
witnesses.
More importantly, since the Affidavit of Orderly
Search purports to have been executed by appellant,
the same cannot establish the propriety and validity
of the search of his residence for he was admittedly
not present when the search took place, he having
arrived only when it was almost through.
Q And while your officers and the barangay
kagawad were searching the house Mr.
Benny Go is not yet present in that
house, am I right?
A Yes, sir.
Q And you made to sign Benny Go in the
inventory receipt when the search was
already over, am I right?
A He was already present when I was
making the inventory. He arrived at
around 9:30.
Q Yes, and the search was already finished,
am I right?
A Almost through.[96]
In fine, since appellant did not witness the search
of his residence, his alleged Affidavit of Orderly
Search, prepared without the aid of counsel and by
the very police officers who searched his residence
and eventually arrested him, provides no proof of the
regularity and propriety of the search in question.
On the contrary, from the account of the police
officers, their search of appellants residence failed to
comply with the mandatory provisions of Section 8
(formerly Section 7), Rule 126 of the Rules of
Court, viz:
SEC. 8. Search of house, room, or premises, to be
made in presence of two witnesses. No search of a
house, room, or any other premise shall be made
except in the presence of the lawful occupant thereof
or any member of his family or in the absence of the
latter, two witnesses of sufficient age and

discretion residing in the same

locality. (Underscoring supplied)
As pointed out earlier, the members of the
raiding team categorically admitted that the search of
the upper floor, which allegedly resulted in the
recovery of the plastic bag containing theshabu, did
not take place in the presence of either the lawful
occupant of the premises, i.e. appellant (who was
out), or his son Jack Go (who was handcuffed to a
chair on the ground floor).Such a procedure, whereby
the witnesses prescribed by law are prevented from
actually observing and monitoring the search of the
premises, violates both the spirit and letter of the law:
Furthermore, the claim of the accused-appellant that
the marijuana was planted is strengthened by the
manner in which the search was conducted by the
police authorities. The accused-appellant was
seated at the sala together with Sgt. Yte when they
heard someone in the kitchen uttered ito
na. Apparently, the search of the accused-appellants
house was conducted in violation of Section 7, Rule
126 of the Rules of Court which specifically provides
that no search of a house, room or any other
premise shall be made except in the presence of
the lawful occupant thereof or any member of his
family or in the absence of the latter, in the
presence of two (2) witnesses of sufficient age and
discretion residing in the same locality. This
requirement is mandatory to ensure regularity in
the execution of the search warrant. Violation of
said rule is in fact punishable under Article 130 of the
Revised Penal Code.
As we have ruled in Eduardo Quintero vs. The
National Bureau of Investigation, et al. a procedure,
wherein members of a raiding party can roam
around the raided premises unaccompanied by
any witness, as the only witnesses available as
prescribed by law are made to witness a search
conducted by the other members of the raiding
party in another part of the house, is violative of
both the spirit and letter of the law.[97] (Emphasis
and underscoring supplied)
That the raiding party summoned two barangay
kagawads to witness the search at the second floor is
of no moment. The Rules of Court clearly and
explicitly establishes a hierarchy among the
witnesses in whose presence the search of the
premises must be conducted. Thus, Section 8, Rule
126 provides that the search should be witnessed by
two witnesses of sufficient age and discretion
residing in the same locality only in the absence of
either the lawful occupant of the premises or any
member of his family. Thus, the search of appellants
residence clearly should have been witnessed by his
son Jack Go who was present at the time. The police
officers were without discretion to substitute their
choice of witnesses for those prescribed by the law.

The claim of SPO1 Fernandez and PO2

Abulencia that Jack Go voluntarily waived his right
to witness the search, allegedly because there would
be
no
one
left
in
the
sala
and
anywaybarangay officials were present, cannot be
accepted. To be valid, a waiver must be made
voluntarily,
knowingly
and
intelligently.
[98]
Furthermore, the presumption is always against
the waiver of a constitutionally protected right.[99]
While Jack Go was present from the time the
raiding team entered the premises until after the
search was completed, he was, however, handcuffed
to a chair in the sala. [100] All alone and confronted by
five police officers who had deprived him of his
liberty, he cannot thus be considered to have
voluntarily, knowingly and intelligently waived his
right to witness the search of the house. Consent
given
under
such
intimidating,
coercive
circumstances is no consent within the purview of the
constitutional guaranty.[101]
The search conducted by the police officers of
appellants residence is essentially no different from
that in People v. Del Rosario[102] where this Court
observed:
We thus entertain serious doubts that the shabu
contained in a small canister was actually seized
or confiscated at the residence of accusedappellant. In consequence, the manner the police
officers conducted the subsequent and muchdelayed search is highly irregular. Upon barging
into the residence of accused-appellant, the police
officers found him lying down and they
immediately arrested and detained him in the
living room while they searched the other parts of
the house. Although they fetched two persons to
witness the search, the witnesses were called in
only after the policemen had already entered
accused-appellants residence (pp. 22-23, tsn,
December 11, 1991), and, therefore, the policemen
had more than ample time to plant the
shabu. Corollary to the Constitutional precept that,
in all criminal prosecutions, the accused shall be
presumed innocent until the contrary is proved (Sec.
14 (2), Article III, Constitution of the Republic of the
Philippines) is the rule that in order to convict an
accused the circumstances of the case must exclude
all and each and every hypothesis consistent with his
innocence (People vs. Tanchoco, 76 Phil. 463
[1946]; People vs. Constante, 12 SCRA 653
[1964]; People vs. Jara, 144 SCRA 516 [1986]). The
facts of the case do not rule out the hypothesis that
accused-appellant is innocent.[103] (Emphasis
supplied)
The raiding teams departure from the procedure
mandated by Section 8, Rule 126 of the Rules of
Court, taken together with the numerous other
irregularities attending the search of appellants
residence, tainted the search with the vice of
unreasonableness, thus compelling this Court to

apply the exclusionary rule and declare the seized

articles inadmissible in evidence. This must
necessarily be so since it is this Courts solemn duty
to be ever watchful for the constitutional rights of the
people, and against any stealthy encroachments
thereon.[104]In the oft-quoted language of Judge
Learned Hand:
As we understand it, the reason for the exclusion of
evidence competent as such, which has been
unlawfully acquired, is that exclusion is the only
practical way of enforcing the constitutional
privilege. In earlier times the action of trespass
against the offending official may have been
protection enough; but that is true no longer. Only in
case the prosecution which itself controls the
seizing officials, knows that it cannot profit by
their wrong, will that wrong be repressed.
[105]
(Emphasis supplied)
In all prosecutions for violation of The
Dangerous Drugs Act, the existence of the dangerous
drug is a condition sine qua non for conviction since
the dangerous drug is the very corpus delicti of the
crime.[106] With the exclusion of Exhibit A, the plastic
bag containing the shabu allegedly recovered from
appellants residence by the raiding team, the decision
of the trial court must necessarily be reversed and
appellant acquitted.
What is more, a thorough evaluation of the
testimonies and evidence given before the trial court
fails to provide the moral certainty necessary to
sustain the conviction of appellant.
In particular, Barangay Kagawads Lazaro and
Manalo, the two witnesses to the search chosen by
the police officers in substitution of Jack Go, both
categorically testified under oath that no shabu was
recovered from appellants residence by the
police. Thus, Kagawad Lazaro testified that the
plastic bag containing white crystalline granules,
later found positive forshabu, was not recovered from
the room of Jack Go:
Atty. Reyes:
You were shown a while ago by the
prosecution of (sic) an Inventory
Receipt allegedly prepared by Officer
Fernandez which includes the list of the
items seized from the premises of
Benny Go, now, you said that theres no
white crystalline granules included in
that list which you signed during the
inventory?
A Yes, sir.
Q Can you recall what was the first item
included in that list which you signed in
the first page?
A Chinese medicine, sir.
Q Now, you also testified that you were with
Officer Abulencia when you conducted
the search inside the room of Jack Go,

now, did you recover anything from the

room of Jack Go?
A PO2 Abulencia recovered one small
plastic in the drawer of Jack Go and
Naphthalene balls, sir.
xxx
Atty. Reyes:
If that small plastic will be shown to you,
will you be able to identify it?
A Yes, sir.
Atty. Reyes:
I have here a plastic which contained
yellowish powder. Could you go over
this and tell us if this was the one
recovered from the room of Jack Go?
A This is the one, sir.
Q I have here another plastic containing
white crystalline substance marked
by the prosecution as Exh. A. Will
you tell us if this is also recovered
from the room of Jack Go?
A No, this was not recovered from the
room of Jack Go, sir.
Q During the preparation of the
inventory of the seized items, was this
also included?
A I did not see that, sir.[107] (Emphasis
supplied)
Similarly, Kagawad Manalo testified that neither
the plastic bag of shabu nor the weighing scale was
among the seized items inventoried by the raiding
team:
Q You said that you were present during the
time when SPO1 Fernandez was
preparing the inventory of all the items
taken from the premises of Benny Go,
can you recall what are these items?
A Yes sir, assorted Chinese medicines,
assorted documents, papers, passports,
stamp pad, bankbooks and checks and it
was placed in five (5) boxes and three
(3) ladies bag.
Q What about a weighing scale? Is there
a weighing scale, Mr. Witness?
A I did not see any weighing scale, sir.
Q How about drugs or shabu contained in
a plastic pack?
A I did not see any also.[108] (Emphasis
supplied)
On rebuttal, SPO1 Fernandez alleged that the
two barangay kagawads were lying when they
claimed that no shabu was recovered from appellants
residence, and implied that they had been asked to
falsify their testimonies in court:
Pros. Rebagay:
Mr. witness, when Salvador Manalo testified
before this Honorable Court when he
was confronted with Exh. B which is
the inventory receipt the said witness
denied that the first page of Exh. B"
was genuine on the fact that his

signature and likewise [that of] his cocolleague did not appear on the first
page of the said inventory receipt, what
can you say to that statement made by
Salvador Manalo?
A Well, it has not been our practice to let the
witness sign on the first page of the 2page inventory receipt and with regards
to the said inventory receipt that he
signed on June 4, it is the same
inventory receipt that I prepared, sir.
xxx
Q Likewise, Mr. witness, the said witness
Salvador Manalo also denied that the
shabu which is the subject of this case
has never been recovered by them,
what can you say to that?
A Well, its a lie, sir.
Q Why do you say that?
A Because when the illegal drug was
found by PO2 Abulencia, he was
accompanied by Gaspar Lazaro at
that time. Then he called my
attention and he also called the
attention of SPO2 Serquea as well as
the attention of Mr. Salvador
Manalo. When I went upstairs, they
were already inside the said room so
the five of us saw the illegal drugs, sir.
xxx
Pros. Rebagay:
Mr. witness, when Salvador Manalo testified
here on cross-examination, he
mentioned that after the search of the
house of Benny Go, a certain
investigator, a policeman pretended that
he is making a follow-up with respect to
the search made by you and your team,
will you please tell us if immediately
after the incident or after the
investigation conducted by the City
Prosecutors Office when you had an
occasion to meet Salvador Manalo after
that?
A Yes, sir.
Q And what happened to that meeting
with Salvador Manalo after the
preliminary investigation?
Witness:
Because during the preliminary
investigation, we were surprised why
our witness has taken side, it is on the
side of the accused Benny Go so I
decided to pay him a visit that day
after that confrontation on June 23
and I asked him what happened,
tinanong ko siya kung ano ang
nangyari bakit mukhang nakampi na
siya roon sa kabila. Ang sagot niya sa
akin ang sabi sa amin ni Atty. Galing

kakausapin ka rin niya. That is the

exact words.
Atty. Reyes:
We will object to that for being
hearsay. May we move that the latter
portion be stricken off the record.
Court:
Let it remain
Pros. Rebagay:
And will you please tell us exactly when
this incident occur (sic), Mr. witness?
A That was after June 23, sir.
Q Where?
A At his store in A. Linao Street, Paco, sir.
Q And what was your response after you
heard that answer from Salvador
Manalo, if any, Mr. witness?
Witness:
Siyempre nagtaka ako, bakit ganoon ibig
sabihin implied baka nagkaaregluhan na, iyan ang iniisip ko, sir.
[109]
(Emphasis supplied)
Regrettably, no further evidence, aside from the
foregoing allegations and suspicions of SPO1
Fernandez, was ever presented to substantiate the
claim that the two kagawads had deliberately
falsified their testimonies. On the contrary, it appears
that the police officers did not actively pursue their
complaint for obstruction of justice against the
two kagawads with the Department of Justice.
Moreover, to completely discount the testimonies
of kagawads Lazaro and Manalo would be
tantamount to having no witnesses to the search of
appellants residence at all except the police officers
themselves, a situation clearly contrary to the tenor
and spirit of Section 8 of Rule 126.
The prosecutions attempt to introduce the
weighing scale, supposedly seized during the search,
only casts more doubt on its case. Said weighing
scale was conspicuously absent from the enumeration
of seized items in the handwritten Inventory Receipt,
the Return of the Search Warrant and the Affidavit of
Arrest prepared by the police officers. SPO1
Fernandezs claim that the omission was an honest
mistake, to wit:
Pros. Rebagay
Q Mr. Witness, a while ago you added
another item which was not included in
the inventory list and this was the
weighing scale. Please tell us, why is it
only now that you are adding it to the
list of those items that you seized?
A Well, with all honesty Your Honor, I
cannot offer any alibi except to say that
I committed an honest mistake when I
did not include that weighing scale in
the inventory receipts.[110]
does not inspire credence. Neither does SPO1
Serqueas explanation:

Q What was the search warrant all about? It

commands you to search and seize what
items?
A Regarding drugs, drug paraphernalias and
proceeds of the crime, sir.
Atty. Reyes:
What else?
A Weighing scale, sir.
Q Weighing scale is included in the search
warrant. So the warrant specifically
commands you to seize drugs, drug
paraphernalias and weighing scale?
A Yes, sir.
Q And you read this Affidavit of Arrest
before you signed this. Did you notice
that the weighing scale is not included
here?
A Yes, sir. Now I noticed.
Q No, during the time that you signed this?
A No, sir.
Q You did not notice that?
A No, sir.
Q As well as the time when Officer
Fernandez was preparing this Inventory,
you did not call his attention that there
are some items missing in that
Inventory?
A I did not call his attention. Honestly
speaking (unfinished)
xxx
A Honestly speaking, we confiscated so
many evidence including papers, boxes,
voluminous quantity of evidence
recovered and only one officer is
conducting the Inventory. We cannot
conduct Inventory two at a time or three
at a time, only one. Because maybe,
you see, hes only one. Maybe he did not
list it because of that so many evidence
confiscated.
Atty. Reyes:
But the weighing scale is not a small item, is
that correct? Its a big item?
A Yes, sir.
Q Do you want to tell us that you missed
that item?
A I was not the one who missed it, sir.
Q How about your Affidavit of Arrest?
A Officer Fernandez prepared that Affidavit,
sir.
Q So you are not the one who prepared
this? You merely signed it?
A I signed it in their presence, sir.[111]
The foregoing explanations are improbable and
far from persuasive. Considering that a weighing
scale was among the items particularly described in
Search Warrant No. 99-0038, it would be expected
that the police officers would be actively searching
for it and, if found, they would take care to include it
in the inventory and the return of the search
warrant. But while numerous seals, stamps, checks
and documents not described in the search warrant

were seized and carefully inventoried by the raiding

team, none of the five police officers bothered to
point out that the weighing scale had not been
included in the inventory.
The implausibility of the story put forward by
the police officers leads to no other conclusion than
that the weighing scale was introduced as an
afterthought in order to bolster the case against
appellant.
With the persistence of nagging doubts
surrounding the alleged discovery and seizure of
the shabu, it is evident that the prosecution has failed
to discharge its burden of proof and overcome the
constitutional presumption of innocence. It is thus
not only the accuseds right to be freed; it is, even
more, this Courts constitutional duty to acquit
him. [112] Apropos is the ruling in People v.
Aminnudin,[113] viz:
The Court strongly supports the campaign of the
government against drug addiction and commends
the efforts of our law enforcement officers against
those who would inflict this malediction upon our
people, especially the susceptible youth. But as
demanding as this campaign may be, it cannot be
more so than the compulsions of the Bill of Rights
for the protection of liberty of every individual in the
realm, including the basest of criminals. The
Constitution covers with the mantle of its protection
the innocent and the guilty alike against any manner
of high-handedness from the authorities, however
praiseworthy their intentions.
Those who are supposed to enforce the law are not
justified in disregarding the right of the individual in
the name of order. Order is too high a price for the
loss of liberty. As Justice Holmes, again, said I think
it is less evil that some criminals should escape than
that the government should play an ignoble part. It is
simply not allowed in the free society to violate a law
to enforce another, especially if the law violated is
the Constitution itself. [114]
Return of Seized Property Not Described in the
Search Warrant
Turning now to the Motion for Return of
Personal Documents, Vehicle and Paraphernalia, the
general rule is that only the personal properties
particularly described in the search warrant may be
seized by the authorities. Thus, in Tambasen v.
People,[115] this Court held:
Moreover, by their seizure of articles not described in
the search warrant, the police acted beyond the
parameters of their authority under the search
warrant. Section 2, Article III of the 1987
Constitution requires that a search warrant should
particularly describe the things to be seized. The
evident purpose and intent of the requirement is
to limit the things to be seized to those, and only

those, particularly described in the search

warrant to leave the officers of the law with no
discretion regarding what articles they should
seize, to the end that unreasonable searches and
seizures may not be made and that abuses may not be
committed (Corro v. Lising, 137 SCRA 541, 547
[1985]; Bache & Co. [Phil.], Inc. v. Ruiz, 37 SCRA
823 [1971]; Uy Kheytin v. Villareal, 42 Phil. 886
[1920]).[116](Emphasis supplied)
There are, however, several well-recognized
exceptions to the foregoing rule. Thus, evidence
obtained through a warrantless search and seizure
may be admissible under the following
circumstances: (1) search incident to a lawful arrest;
(2) search of a moving motor vehicle; (3) search in
violation of customs laws; (4) seizure of evidence in
plain view; and (5) when the accused himself waives
his right against unreasonable searches and seizures.
[117]

To be valid, therefore, the seizure of the items

enumerated in appellants Motion for Return of
Personal Documents, Vehicle and Paraphernalia must
fall within the ambit of Search Warrant No. 99-0038
or under any of the foregoing recognized exceptions
to the search warrant requirement.
In this regard, the raiding team sought to justify
the seizure of the car, the Fifty Two Thousand Seven
Hundred Sixty Pesos (P52,760.00) in different
denominations, and the Twenty Five Thousand
Chinese Yuan (CY25,000.00) as either proceeds of
the offense or means of committing an offense within
the purview of the warrant. Thus PO2 Abulencia
testified:
Q And how about the money, Mr. witness?
Why did you confiscate the money?
A Its considered as proceed of the crime, sir.
Q How about the vehicle, Mr. witness? Why
did you took (sic) custody of the vehicle
when it was not listed in the search
warrant?
A This is part and parcel of the evidence,
sir. Because its being used in
transporting drugs, sir.[118]
Similarly, with respect to the car, SPO1
Fernandez stated:
Q This vehicle, Toyota Corolla GLI with
Plate No. PNU-TT-658, where was it
during the time that you. . . (unfinished)
A It was parked in front of the house of
Benny Go.
Q And you seized it?
A Yes, sir.
Q Why?
A Because during the surveillance operation
we saw some known pusher riding in
that car?
Q Who are these drug pushers?
A One of those guys is Mr. Peter Co, also a
subject of our investigation.

Q Which (sic) you released after the arrest,

after he was invited for investigation in
your office on June 14, 1999?
A Yes, sir.[119]

clear narration of the factual circumstances leading to

their discovery. PO2 Abulencia could not even
accurately describe how the raiding team came across
these items:

The
foregoing
rationalizations
are
unacceptable. Admittedly, neither the money nor the
car was particularly described in the search
warrant. In seizing the said items then, the police
officers were exercising their own discretion and
determining for themselves which items in appellants
residence they believed were proceeds of the crime
or means of committing the offense. This is
absolutely impermissible. It bears reiterating that the
purpose of the constitutional requirement that the
articles to be seized be particularly described in the
warrant is to limit the things to be seized to those,
and only those, particularly described in the search
warrant to leave the officers of the law with no
discretion regarding what articles they should seize.
A search warrant is not a sweeping authority
empowering a raiding party to undertake a fishing
expedition to seize and confiscate any and all kinds
of evidence or articles relating to a crime.[120]

Q This Box A marked as Exhibit G, in what

part of the room did you recover this?

At the same time, the raiding team characterized

the seizure of the assorted documents, passports,
bankbooks, checks, check writer, typewriter, dry
seals and stamp pads as seizure of evidence in plain
view. [121]
Under the plain view doctrine, objects falling in
the plain view of an officer who has a right to be in
the position to have that view are subject to seizure
and may be presented as evidence.[122] This Court had
the opportunity to summarize the rules governing
plain view searches in the recent case of People v.
Doria, supra, to wit:
The plain view doctrine applies when the following
requisites concur: (a) the law enforcement officer in
search of the evidence has a prior justification for an
intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in
plain view is inadvertent; (c) it is immediately
apparent to the officer that the item he observes may
be evidence of a crime, contraband or otherwise
subject to seizure. The law enforcement officer must
lawfully make an initial intrusion or properly be in a
position from which he can particularly view the
area. In the course of such lawful intrusion, he came
inadvertently across a piece of evidence
incriminating the accused. The object must be open
to eye and hand and its discovery inadvertent.
(Underscoring supplied; citations omitted)[123]
Measured against the foregoing standards, it is
readily apparent that the seizure of the passports,
bankbooks, checks, typewriter, check writer, dry
seals and stamp pads and other assorted documents
does not fall within the plain view exception. The
assertions of the police officers that said objects were
inadvertently seized within their plain view are mere
legal conclusions which are not supported by any

A We recovered all the evidence within our

plain view, sir. The evidence were
scattered in his house. I cannot
remember whether Box A or Box B, but
all the evidence were within our plain
view thats why we confiscated them,
sir.
Q What do you mean by plain view?
A Nakikita namin, sir. Yung kitang-kita
namin.
Q Where in the premises of Benny Go did
you see all these documents?
A Ground floor and upstairs but mostly in
the ground floor, on the table and on the
floor, sir.
Atty. Reyes:
This Box A marked as Exh. G contains what
documents again?
A Can I see my notes, sir?
Atty. Reyes:
Go ahead.
A Box A contains different bundle of pieces
of document, NBI and BI clearances,
Application of Chinese National,
different papers, sir.
Q Can you remember where in particular
did you recover these documents?
A I cannot remember, sir.
Q All of these documents were recovered
primarily on the ground floor and on the
second floor?
A Yes, sir.
Q Where in particular at the second floor,
there are three to four rooms there?
A Sir, nandoon sa mesa lahat iyan eh don sa
taas rin may mesa din doon at saka
doon naming nakuha ang ibang mga
dokumento.
Q Is (sic) that room belongs (sic) to Jack
Go?
A I dont know, sir, but all these (sic)
evidence were recovered from the
house of Benny Go.[124]
SPO1 Fernandezs account of how he came
across the dry seals, rubber stamps and papers is just
as opaque:
Q For how long have you been inside the
house of Benny Go when you noticed
these dry seals?
A I think more than an hour, I dont exactly
remember the time.
Q But during the time you have not yet
noticed the documents which you

brought to this Court, what call (sic)

your attention was these dry seals first?
A Well, actually the dry seals and the rubber
stamps were all placed atop the table
and as well as the documents because
the box where the documents were
placed are half opened. They are
opened actually thats why I saw them.
Q So, you first saw the rubber stamps and
the dry seals, is that correct? Because
they are atop the table?
A Yes, sir.
Q And then later on you also saw the
documents?
A Yes, sir its beside the table.
Q Contained in a box half opened?
A Yes, sir.
Q Which did you touch first, the rubber
stamps, the dry seals or the documents?
A I did not touch anything, I only
inventoried that when the searching
team were through with what they are
doing. Now, all the evidence were
placed atop the dining table, located
also at the sala of the house or at the
dining area. Then, thats when I asked
some of my co-members to place all
those document and the other
confiscated items atop the table also.[125]
The foregoing testimonies are clearly evasive
and do not establish how the police officers became
aware of the seized items which were allegedly
within their plain view.
Finally, it appears from the testimony of SPO1
Fernandez that the supposed illegal character of the
items claimed to have been seized within the plain
view of the policemen was not readily and
immediately apparent. Rather, the suspicions of the
policemen appear to have been aroused by the
presence of the numerous passports and immigration
documents which they discovered in the course of
their search. After they confirmed that appellant was
not operating a travel agency, they concluded that his
possession of said documents and passports was
illegal even though they could not identify the
alleged law supposedly violated.[126]
To be sure, the policemen also filed a complaint
against appellant for alleged possession of
instruments or implements intended for the
commission of falsification under paragraph 2 of
Article 176 of the Revised Penal Code on the basis of
dry seals and rubber stamps also found in appellants
residence.[127]
However, the illegal character of said dry seals
and stamp pads cannot be said to have been
immediately apparent. For SPO1 Fernandez had to
first make an impression of the dry seal on paper
before he could determine that it purported to be the
seal of the Bureau of Immigration and
Deportation. [128] The counterfeit nature of the seals

and stamps was in fact not established until after they

had been turned over to the Chinese embassy and
Bureau of Immigration and Deportation for
verification. It is, therefore, incredible that SPO1
Fernandez could make such determination from a
plain view of the items from his vantage point in the
sala.
In sum, the circumstances attendant to the case at
bar do not warrant the application of the plain view
doctrine to justify the seizure and retention of the
questioned seized items. The things belonging to
appellant not specifically mentioned in the warrants,
like those not particularly described, must thus be
ordered returned to him.[129]
Be that as it may, considering that the two (2)
dry seals and eight (8) of the rubber stamps have
been certified to be counterfeit by the Bureau of
Immigration and Deportation,[130] they may not be
returned and are hereby declared confiscated in favor
of the State to be disposed of according to law.
[131]
Moreover, the various bankbooks and passports
not belonging to appellant may not be ordered
returned in the instant proceedings. The legality of a
seizure can be contested only by the party whose
rights have been impaired thereby, and the objection
to an unlawful search and seizure is purely personal
and cannot be availed of by third parties.[132]
WHEREFORE, the decision of the Regional
Trial Court of Manila, Branch 41, convicting
appellant Benny Go of violation of Section 16,
Article III in relation to Section 2 (e-2) Article I of
Republic Act No. 6425, as amended, is REVERSED
and SET ASIDE.
Appellant Benny Go is ACQUITTED of the
crime charged and is hereby ordered immediately
RELEASED from confinement, unless he is lawfully
held in custody for another cause.
The Director of the Bureau of Corrections is
ORDERED to forthwith IMPLEMENT this Decision
and to INFORM this Court, within ten (10) days from
receipt hereof, of the date appellant was actually
released from confinement.
Appellants Motion For Return of Personal
Documents, Vehicle and Paraphernalia is GRANTED
IN PART, and the trial court is hereby ordered to
return to him those items seized from the subject
premises which belong to him as listed in said
Motion.
The subject shabu is ORDERED forfeited in
favor of the State and the trial court is hereby
directed to deliver and/or cause its delivery to the
Dangerous Drugs Board for proper disposition.
The two (2) dry seals and eight (8) of the rubber
stamps certified to be counterfeit by the Bureau of
Immigration and Deportation are likewise
ORDERED forfeited in favor of the State for proper
disposition.

SO ORDERED.

RA 6425 by the Regional Trial Court of Manila,

Branch 9, in Criminal Case No. 95-142514.
The facts as narrated by the trial court are as
follows:

4. PEOPLE OF THE PHILIPPINES, appellee,

vs.
DANILO
SIMBAHON
y
QUIATZON, appellant.
DECISION
YNARES-SANTIAGO, J.:
On April 22, 1995, the Regional Trial Court of
Manila, Branch 23, issued Search Warrant No. 95100,[1] commanding the search in the premises of 771
Roxas Street, Sampaloc, Manila, owned by appellant
Danilo Simbahon y Quiatzon, for alleged violation of
Republic Act No. 6425, otherwise known as the
Dangerous Drugs Act of 1972, as amended, and
Presidential Decree No. 1866, penalizing the illegal
possession of firearms.
The search led to the prosecution and conviction
of appellant for violation of Section 8, Article III of

Stripped of their immaterialities, the prosecutions

evidence tends to establish that about 3:00 oclock in
the early morning of April 23, 1995, police
operatives, together with the chairman of the
barangay which had jurisdiction over the place, and a
member of media, served Search Warrant No. 95100, Exhibit F, issued by Hon. Judge William Bayhon
on April 22, 1995, upon Danilo Simbahon, Maricar
Morgia, and Charito Mangulabnan at their residence
at No. 771 Roxas Street, Sampaloc, Manila, that
although at first they were met with slight resistance,
the team nevertheless gained entry into the house
and, rounding up all the occupants found therein,
herded them to the sala. Thereafter, they began
conducting a search of all the rooms in accordance
with the search warrant; that in the room occupied by
live-in partners Danilo Simbahon and Charito
Mangulabnan, the police officers found under the bed
a brick of dried flowering tops suspected to be
marijuana, weighing 856.8 grams, wrapped in a
newspaper and placed inside a plastic (Exhibit C) and
a black bullet pouch containing six (6) live
ammunitions, while in the room occupied by Maricar
Morgia, the operative recovered a green plastic pencil
case containing nine (9) pieces of small transparent
sachets with white crystalline substance suspected to
be shabu (Exhibit B-1) and five (5) pieces of .38
caliber live ammunitions. When lastly the living
room was searched, the policemen found therein a
red and black synthetic case. Inside the case were
three (3) pieces of small transparent plastic sachets
containing suspected shabu (Exhibit B-2), some
sniffing paraphernalias such as improvised burner,
tooter (Exhibit B-6), scissors (Exhibit B-8), eight (8)
strips of aluminum foil (Exhibit B-5), plastic sachets
with residue (Exhibit B-3), and empty plastic sachets
(Exhibit B-4). After the search, an inventory receipt
(Exhibit G) of the items seized from the house of the
suspects was prepared and, together with an affidavit
of orderly search (Exhibit H), was signed by Danilo
Simbahon; that the three accused were then arrested
and brought to the precinct for investigation. The
ammunitions recovered were sent to the Firearms and
Explosive Unit, Camp Crame, Quezon City, to
determine their identities and on September 22, 1995
and August 6, 1996, certifications were issued by said
office to the effect that accused Maricar Morgia and
Danilo Simbahon were not licensed/registered
firearm/ammunitions holders of any kind and
caliber. The other evidence recovered were brought
to the National Bureau of Investigation for laboratory
examination and were found to be positive
for shabuand marijuana as evidenced by Exhibit E.
For his part, Danilo Simbahon denied the allegations
against him and gave his version of the incident as
follows:

That in the early morning of April 23, 1995, he was

sleeping, together with his wife and children, in one
of the rooms in their house located at No. 771 Roxas
Street, Sampaloc, Manila, when some male persons
who introduced themselves as police officers but
were not in uniform forcibly pushed open the door of
their house and just barged in; that all of them were
herded by the police officers to the sala from their
room but he and his wife, Charito, were not aware if
something was indeed taken from the other rooms;
that thereafter they were all brought, together with
another female companion, to the headquarters and
he (Simbahon) was investigated but despite his
request, the investigation was not reduced into
writing. Simbahon denied that a leather bag
containing the evidence marked as Exhibits B-1 to B11 and a belt bag with six (6) live ammunitions were
found under their bed claiming that they have no bed
in their room as they were sleeping only on the
floor. He admitted, however, that they were shown a
document or paper by the police officers but the same
was never handed to him inspite of his request and
that one of the policemen also showed them a taped
package saying that it was recovered from the room
of Maricar Morgia but the contents of the taped
package were never shown to them despite
demands. He likewise stated that the only reason he
was charged by the police was he refused to accede
to their demand of P20,000.00 in exchange for his
release.[2]
Separate informations were filed against Danilo
Simbahon, Charito Mangulabnan, and Maricar
Morgia for violation of RA 6425, as amended, and
PD 1866, as amended, before the Regional Trial
Court of Manila, Branch 9, docketed as Criminal
Cases Nos. 95-142512 to 95-142515.
The three accused were arraigned on June 2,
1995 and respectively pleaded not guilty. Thereafter,
upon motion of the prosecution, the charges against
Charito Mangulabnan were dismissed on the ground
that she had no participation in the crimes charged
against her.[3] The cases were then consolidated and
jointly tried against Danilo Simbahon and Maricar
Morgia.After trial, the court a quo rendered a
decision, the dispositive portion of which states:
WHEREFORE, for the failure of the prosecution to
prove the guilt of the accused Maricar Morgia y
Mangulabnan on evidence beyond reasonable doubt,
both in Criminal Case No. 95-142512 and in
Criminal Case No. 95-142513, she is hereby
ACQUITTED of the charges against her in the above
mentioned criminal cases. The warrant of arrest
issued against her dated November 15, 1995 is
hereby ordered recalled.
Likewise, for failure also of the prosecution to prove
the guilt of accused Danilo Simbahon y Quiatzon
beyond reasonable doubt, said accused is hereby
ACQUITTED of the charge against him in Criminal
Case No. 95-142515.

However, the Court is convinced that there is proof

beyond reasonable doubt that accused Danilo
Simbahon y Quiatzon committed the crime charged
against him in Criminal Case No. 95-142514 thereby
finding him guilty thereof and hereby sentences him
to suffer the penalty of Reclusion Perpetua and to
pay a fine of Five Hundred Thousand Pesos
(P500,000.00) and to pay the cost.
xxxxxxxxx
SO ORDERED.[4]
In view of the imposition of the penalty
of reclusion perpetua, appellant interposed this direct
appeal raising the following issues:
I
WHETHER OR NOT THE LOWER COURT
ERRED IN RULING THAT THE PROSECUTION
PROVED BEYOND REASONABLE DOUBT
THAT APPELLANT COMMITTED A VIOLATION
OF SECTION 8 OF REPUBLIC ACT NO. 6425
(1972).
II
WHETHER OR NOT THE LOWER COURT
ERRED IN RULING THAT SEARCH WARRANT
NO. 95-100 WAS VALID.
III
WHETHER OR NOT THE LOWER COURT
COMMITTED GRAVE ABUSE OF DISCRETION
IN FAILING TO SUSPEND THE APPELLANTS
ARRAIGNMENT AFTER GRANTING A
REINVESTIGATION.
IV
WHETHER OR NOT THE PUBLIC ATTORNEY
WAS GROSSLY NEGLIGENT IN FAILING TO
CHALLENGE THE VALIDITY OF THE SEARCH
CONDUCTED PRIOR TO THE ARRAIGNMENT
OF THE APPELLANT.
Appellant contends that the prosecution failed to
prove that he was caught in flagrante delicto in
possession of the brick of marijuana flowering
tops. He cites the testimony of SPO2 Nelson Estuaria
that he never admitted ownership or possession of the
seized items, particularly the marijuana, and that the
same could belong to any one of the occupants of the
house that was searched.[5]
On the other hand, the Solicitor General argues
that the positive testimony of SPO2 Nelson Estuaria
that marijuana was found inside the room of accusedappellant prevails over his mere denial.[6]

In all prosecutions for violation of The

Dangerous Drugs Act, the existence of the dangerous
drug is condition sine qua non for conviction. The
dangerous drug is the very corpus delictiof the crime.
[7]

We find that the prosecutions evidence on the

identification of the marijuana allegedly seized from
appellant is demonstrably weak, unreliable and
unconvincing. The prosecution failed to identify that
the marijuana presented in court was the very same
marijuana allegedly seized from appellant.[8] Such
failure to identify the corpus delicti of the crime
charged against the appellant or to establish the chain
of custody cannot but inure to the detriment of the
prosecutions case.[9] SPO2 Nelson Estuaria testified
in this wise:
FISCAL SULIDUM:
Q What happened after you have searched
the room of Danilo Simbahon?
Witness
A I found several specimens, maam.
FISCAL SULIDUM:
Q I am showing to you a brick of flowering
tops dried leaves of marijuana, will you
please tell this Honorable Court what is
the relation of this brick of marijuana to
the marijuana which you recovered
from the room of Danilo Simbahon?
Witness
A This is the same brick of marijuana,
maam.
FISCAL SULIDUM:
Q How do you know that this marijuana was
recovered from the room of Danilo
Simbahon?
Witness
A It was marked by the investigator, maam.
COURT:
Q How about you, did you put your own
marking in order to identify that this
was recovered from the room of Danilo
Simbahon?
Witness
A None, Your Honor. I did not put my
marking.

The prosecutions failure to explain why the

markings were no longer on the bricks of marijuana
leaves is certainly damaging to its case. The
prosecution must ensure that the item presented in
court is the very same item seized from an accused in
order to discourage tampering with the evidence. Its
failure to do so, therefore, raised serious doubt as to
appellants guilt.
Considering that in criminal cases, proof beyond
reasonable doubt is necessary to establish the guilt of
an accused, similarly, unwavering exactitude in the
identification of the corpus delicti is necessary. Every
fact necessary to constitute the crime must be
established by proof beyond reasonable doubt.[11]
More importantly, this case should be dismissed
on the ground of manifest violations of the
constitutional right of the accused against illegal
search and seizure. While appellant may be deemed
to have waived his right to question the legality of the
search warrant and the admissibility of the evidence
seized for failure to raise his objections at the
opportune time,[12]however, the record shows serious
defects in the search warrant itself which render the
same null and void.[13]
As a general rule, factual findings of the trial
court are entitled to respect absent any indication that
it overlooked certain facts or circumstances of weight
and influence which, if considered, would alter the
result of the case.[14] In this case, we find that the trial
court overlooked defects in Search Warrant No. 95100, to wit:[15]
TO ANY PEACE OFFICER:
G R E E T I N G S:
It appearing to the satisfaction of the undersigned
after examining under oath SPO1 Bayani Corpuz
Agulan and his witness, that there are reasonable
grounds to believe that a violation of Section 15 and
16, Article III of RA 6425, as amended, and violation
of PD 1866 has been committed or is about to be
committed and there are good and sufficient reasons
to believe that DANILO SIMBAJON @ Danny
Pilay, CHARITO MANGULABNAN @ Chato
and MARICAR MORGIA @ Caycay has in his
possession the following: (Emphasis provided)
Undetermined amount of methamphetamine
Hydrochloride or Shabu, regulated drugs;

COURT:

Packaging/sniffing paraphernalia such as weighing

scale, plastic sachet/bags, tooters, aluminum foils,
burner, scissor and knife;

Q Where is the marking that were marked

by the investigator?

.38 caliber revolver unlicensed firearm

Witness
A I could not find the marking, Your Honor.
[10]

You are hereby commanded to make an immediate

search anytime of the day or night of the premises
including the ground floor, the second floor and in all

floors and rooms therein above-mentioned and

forthwith seize and take possession of the abovementioned properties subject of the offense and bring
to this Court said properties and persons to be dealt
with as the law direct. You are further directed to
submit return with in (10) days from today.
GIVEN UNDER MY HAND AND SEAL OF THIS
COURT, this 20th day of April, 1995 in Manila,
Philippines.(sgd.) WILLIAM M.
BAYHONExecutive Judge
The caption as well as the body of Search
Warrant No. 95-100 show that it was issued for more
than one offense for violation of RA 6425 and for
violation of PD 1866. In Tambasen v. People, et al., it
was held:

seized items be justified under the plain view

doctrine, for the bricks of marijuana in this case were
found not inadvertently or in plain view. Rather, they
were found after a meticulous search under the bed,
wrapped in a newspaper and inside a plastic
bag. In People v. Musa,[21] the marijuana recovered by
NARCOM agents was declared inadmissible because
the said drugs were contained in a plastic bag which
bore no indication of its contents.
WHEREFORE, in view of the foregoing, the
decision of the trial court is REVERSED and SET
ASIDE. Appellant Danilo Simbahon y Quiatzon is
ACQUITTED of the crime charged against him. He
is ordered immediately released unless he is being
held for some other valid or lawful cause.
Costs de oficio.
SO ORDERED.

On its face, the search warrant violates Section 3,

Rule 123 of the Revised Rules of Court, which
prohibits the issuance of a search warrant for more
than one specific offense. The caption of Search
Warrant No. 365 reflects the violation of two special
laws: P.D. No. 1866 for illegal possession of
firearms, ammunitions and explosives; and R.A. No.
1700, the Anti-Subversive Law. Search Warrant No.
365 was therefore a scatter-shot warrant and totally
null and void.[16]
Likewise, the warrant failed to describe the place
to be searched with sufficient particularity. The rule
is that a description of a place to be searched is
sufficient if the officer with the warrant can, with
reasonable effort, ascertain and identify the place
intended.[17] The constitutional requirement is a
description which particularly points to a definitely
ascertainable place, so as to exclude all others. In the
case at bar, only the application for search
warrant[18] contained the address of the place to be
searched. The search warrant issued by the court
merely referred to appellants residence as premises,
without specifying its address. The Constitution and
the Rules of Court limit the place to be searched only
to those described in the warrant. [19]The absence of a
particular description in the search warrant renders
the same void.
Finally, the seized marijuana was not mentioned
in the search warrant issued for the search of
appellants house. The seizure by the police officers
conducting the search of articles not described in the
search warrant was beyond the parameters of their
authority under the search warrant. Article III,
Section 2 of the 1987 Constitution requires that a
search warrant should particularly describe the things
to be seized. The evident purpose and intent of the
requirement is to limit the things to be seized to
those, and only those, particularly described in the
search warrant, to leave the officers of the law with
no discretion regarding what articles they should
seize, to the end that unreasonable searches and
seizures may not be made and that abuses may not be
committed.[20] Neither can the admissibility of such

5.

MICROSOFT
CORPORATION
and
LOTUS
DEVELOPMENT
CORPORATION, petitioners, vs.
MAXICORP, INC., respondent.
DECISION

CARPIO, J.:
The Case
This petition for review on certiorari[1] seeks to
reverse the Court of Appeals Decision[2] dated 23
December 1998 and its Resolution dated 29
November 1999 in CA-G.R. SP No. 44777. The
Court of Appeals reversed the Order[3] of the
Regional Trial Court, Branch 23, Manila (RTC),
denying respondent Maxicorp, Inc.s (Maxicorp)
motion to quash the search warrant that the RTC
issued against Maxicorp. Petitioners are the private
complainants against Maxicorp for copyright
infringement under Section 29 of Presidential Decree
No. 49 (Section 29 of PD 49)[4] and for unfair
competition under Article 189 of the Revised Penal
Code (RPC).[5]
Antecedent Facts

On 25 July 1996, National Bureau of

Investigation (NBI) Agent Dominador Samiano, Jr.
(NBI Agent Samiano) filed several applications for
search warrants in the RTC against Maxicorp for
alleged violation of Section 29 of PD 49 and Article
189 of the RPC. After conducting a preliminary
examination of the applicant and his witnesses, Judge
William M. Bayhon issued Search Warrants Nos. 96451, 96-452, 96-453 and 96-454, all dated 25 July
1996, against Maxicorp.
Armed with the search warrants, NBI agents
conducted on 25 July 1996 a search of Maxicorps
premises and seized property fitting the description
stated in the search warrants.
On 2 September 1996, Maxicorp filed a motion
to quash the search warrants alleging that there was
no probable cause for their issuance and that the
warrants are in the form of general warrants. The
RTC denied Maxicorps motion on 22 January 1997.
The RTC also denied Maxicorps motion for
reconsideration.
The RTC found probable cause to issue the
search warrants after examining NBI Agent Samiano,
John Benedict Sacriz (Sacriz), and computer
technician Felixberto Pante (Pante). The three
testified on what they discovered during their
respective visits to Maxicorp. NBI Agent Samiano
also presented certifications from petitioners that
they have not authorized Maxicorp to perform the
witnessed activities using petitioners products.
On 24 July 1997, Maxicorp filed a petition for
certiorari with the Court of Appeals seeking to set
aside the RTCs order. On 23 December 1998, the
Court of Appeals reversed the RTCs order denying
Maxicorps motion to quash the search warrants.
Petitioners moved for reconsideration. The Court of
Appeals denied petitioners motion on 29 November
1999.
The Court of Appeals held that NBI Agent
Samiano failed to present during the preliminary
examination conclusive evidence that Maxicorp
produced or sold the counterfeit products. The Court
of Appeals pointed out that the sales receipt NBI
Agent Samiano presented as evidence that he bought
the products from Maxicorp was in the name of a
certain Joel Diaz.
Hence, this petition.
The Issues
Petitioners seek a reversal and raise the
following issues for resolution:
1. WHETHER THE PETITION RAISES
QUESTIONS OF LAW;
2. . WHETHER PETITIONERS HAVE LEGAL
PERSONALITY TO FILE THE PETITION;
3. 3. WHETHER THERE WAS PROBABLE
CAUSE TO ISSUE THE SEARCH WARRANTS;

4. 4. WHETHER THE SEARCH WARRANTS

ARE GENERAL WARRANTS.
The Ruling of the Court
The petition has merit.
On Whether the Petition Raises Questions of
Law
Maxicorp assails this petition as defective since
it failed to raise questions of law. Maxicorp insists
that the arguments petitioners presented are questions
of fact, which this Court should not consider in a
Rule 45 petition for review. Petitioners counter that
all the issues they presented in this petition involve
questions of law. Petitioners point out that the facts
are not in dispute.
A petition for review under Rule 45 of the Rules
of Court should cover questions of law.[6] Questions
of fact are not reviewable. As a rule, the findings of
fact of the Court of Appeals are final and conclusive
and this Court will not review them on appeal,
[7]
subject to exceptions as when the findings of the
appellate court conflict with the findings of the trial
court.[8]
The distinction between questions of law and
questions of fact is settled. A question of law exists
when the doubt or difference centers on what the law
is on a certain state of facts. A question of fact exists
if the doubt centers on the truth or falsity of the
alleged facts. Though this delineation seems simple,
determining the true nature and extent of the
distinction is sometimes problematic. For example, it
is incorrect to presume that all cases where the facts
are not in dispute automatically involve purely
questions of law.
There is a question of law if the issue raised is
capable of being resolved without need of reviewing
the probative value of the evidence.[9] The resolution
of the issue must rest solely on what the law provides
on the given set of circumstances. Once it is clear
that the issue invites a review of the evidence
presented, the question posed is one of fact.[10] If the
query requires a re-evaluation of the credibility of
witnesses, or the existence or relevance of
surrounding circumstances and their relation to each
other, the issue in that query is factual. [11] Our ruling
inPaterno v. Paterno[12] is illustrative on this point:
Such questions as whether certain items of evidence
should be accorded probative value or weight, or
rejected as feeble or spurious, or whether or not the
proofs on one side or the other are clear and
convincing and adequate to establish a proposition in
issue, are without doubt questions of fact. Whether or
not the body of proofs presented by a party, weighed
and analyzed in relation to contrary evidence
submitted by adverse party, may be said to be strong,
clear and convincing; whether or not certain
documents presented by one side should be accorded
full faith and credit in the face of protests as to their

spurious character by the other side; whether or not

inconsistencies in the body of proofs of a party are of
such gravity as to justify refusing to give said proofs
weight all these are issues of fact.
It is true that Maxicorp did not contest the facts
alleged by petitioners. But this situation does not
automatically transform all issues raised in the
petition into questions of law. The issues must meet
the tests outlined in Paterno.
Of the three main issues raised in this petition
the legal personality of the petitioners, the nature of
the warrants issued and the presence of probable
cause only the first two qualify as questions of law.
The pivotal issue of whether there was probable
cause to issue the search warrants is a question of
fact. At first glance, this issue appears to involve a
question of law since it does not concern itself with
the truth or falsity of certain facts. Still, the
resolution of this issue would require this Court to
inquire into the probative value of the evidence
presented before the RTC. For a question to be one of
law, it must not involve an examination of the
probative value of the evidence presented by the
litigants or any of them.[13]
Yet, this is precisely what the petitioners ask us
to do by raising arguments requiring an examination
of the TSNs and the documentary evidence presented
during the search warrant proceedings. In short,
petitioners would have us substitute our own
judgment to that of the RTC and the Court of Appeals
by conducting our own evaluation of the evidence.
This is exactly the situation which Section 1, Rule 45
of the Rules of Court prohibits by requiring the
petition to raise only questions of law. This Court is
not a trier of facts. It is not the function of this court
to analyze or weigh evidence.[14] When we give due
course to such situations, it is solely by way of
exception. Such exceptions apply only in the
presence of extremely meritorious circumstances.[15]
Indeed, this case falls under one of the
exceptions because the findings of the Court of
Appeals conflict with the findings of the RTC.
[16]
Since petitioners properly raised the conflicting
findings of the lower courts, it is proper for this
Court to resolve such contradiction.
On Whether Petitioners have the Legal Personality
to File this Petition
Maxicorp argues that petitioners have no legal
personality to file this petition since the proper party
to do so in a criminal case is the Office of the
Solicitor General as representative of the People of
the Philippines. Maxicorp states the general rule but
the exception governs this case.[17] We ruled
in Columbia Pictures Entertainment, Inc. v. Court
of Appeals[18] that the petitioner-complainant in a
petition for review under Rule 45 could argue its case
before this Court in lieu of the Solicitor General if
there is grave error committed by the lower court or

lack of due process. This avoids a situation where a

complainant who actively participated in the
prosecution of a case would suddenly find itself
powerless to pursue a remedy due to circumstances
beyond its control. The circumstances in Columbia
Pictures Entertainment are sufficiently similar to the
present case to warrant the application of this
doctrine.
On Whether there was Probable Cause to Issue the
Search Warrants
Petitioners argue that the Court of Appeals erred
in reversing the RTC based on the fact that the sales
receipt was not in the name of NBI Agent Samiano.
Petitioners point out that the Court of Appeals
disregarded the overwhelming evidence that the RTC
considered in determining the existence of probable
cause. Maxicorp counters that the Court of Appeals
did not err in reversing the RTC. Maxicorp maintains
that the entire preliminary examination that the RTC
conducted was defective.
The Court of Appeals based its reversal on two
factual findings of the RTC. First, the fact that the
sales receipt presented by NBI Agent Samiano as
proof that he bought counterfeit goods from
Maxicorp was in the name of a certain Joel Diaz.
Second, the fact that petitioners other witness, John
Benedict Sacriz, admitted that he did not buy
counterfeit goods from Maxicorp.
We rule that the Court of Appeals erred in
reversing the RTCs findings.
Probable cause means such reasons, supported
by facts and circumstances as will warrant a cautious
man in the belief that his action and the means taken
in prosecuting it are legally just and proper.[19] Thus,
probable cause for a search warrant requires such
facts and circumstances that would lead a reasonably
prudent man to believe that an offense has been
committed and the objects sought in connection with
that offense are in the place to be searched.[20]
The judge determining probable cause must do
so only after personally examining under oath the
complainant and his witnesses. The oath required
must refer to the truth of the facts within
the personal knowledge of the petitioner or his
witnesses, because the purpose thereof is to convince
the committing magistrate, not the individual making
the affidavit and seeking the issuance of the warrant,
of the existence of probable cause.[21] The applicant
must have personal knowledge of the circumstances.
Reliable
information
is
insufficient.[22] Mere
affidavits are not enough, and the judge must depose
in writing the complainant and his witnesses.[23]
The Court of Appeals reversal of the findings of
the RTC centers on the fact that the two witnesses for
petitioners during the preliminary examination failed
to prove conclusively that they bought counterfeit
software from Maxicorp. The Court of Appeals ruled
that this amounted to a failure to prove the existence

of a connection between the offense charged and the

place searched.
The offense charged against Maxicorp is
copyright infringement under Section 29 of PD 49
and unfair competition under Article 189 of the RPC.
To support these charges, petitioners presented the
testimonies of NBI Agent Samiano, computer
technician Pante, and Sacriz, a civilian. The offenses
that petitioners charged Maxicorp contemplate
several overt acts. The sale of counterfeit products is
but one of these acts. Both NBI Agent Samiano and
Sacriz related to the RTC how they personally saw
Maxicorp commit acts of infringement and unfair
competition.
During the preliminary examination, the RTC
subjected the testimonies of the witnesses to the
requisite examination. NBI Agent Samiano testified
that he saw Maxicorp display and offer for sale
counterfeit software in its premises. He also saw how
the counterfeit software were produced and packaged
within Maxicorps premises. NBI Agent Samiano
categorically stated that he was certain the products
were counterfeit because Maxicorp sold them to its
customers without giving the accompanying
ownership manuals, license agreements and
certificates of authenticity.
Sacriz testified that during his visits to
Maxicorp, he witnessed several instances when
Maxicorp installed petitioners software into
computers it had assembled. Sacriz also testified that
he saw the sale of petitioners software within
Maxicorps premises. Petitioners never authorized
Maxicorp to install or sell their software.
The testimonies of these two witnesses, coupled
with the object and documentary evidence they
presented, are sufficient to establish the existence of
probable cause. From what they have witnessed,
there is reason to believe that Maxicorp engaged in
copyright infringement and unfair competition to the
prejudice of petitioners. Both NBI Agent Samiano
and Sacriz were clear and insistent that the
counterfeit software were not only displayed and sold
within Maxicorps premises, they were also produced,
packaged and in some cases, installed there.
The determination of probable cause does not
call for the application of rules and standards of
proof that a judgment of conviction requires after
trial on the merits. As implied by the words
themselves, probable cause is concerned with
probability, not absolute or even moral certainty. The
prosecution need not present at this stage proof
beyond reasonable doubt. The standards of judgment
are those of a reasonably prudent man,[24] not the
exacting calibrations of a judge after a full-blown
trial.
No law or rule states that probable cause
requires a specific kind of evidence. No formula or
fixed rule for its determination exists.[25] Probable
cause is determined in the light of conditions

obtaining in a given situation.[26] Thus, it was

improper for the Court of Appeals to reverse the
RTCs findings simply because the sales receipt
evidencing NBI Agent Samianos purchase of
counterfeit goods is not in his name.
For purposes of determining probable cause, the
sales receipt is not the only proof that the sale of
petitioners software occurred. During the search
warrant application proceedings, NBI Agent Samiano
presented to the judge the computer unit that he
purchased from Maxicorp, in which computer unit
Maxicorp had pre-installed petitioners software.
[27]
Sacriz, who was present when NBI Agent
Samiano purchased the computer unit, affirmed that
NBI Agent Samiano purchased the computer unit.
[28]
Pante, the computer technician, demonstrated to
the judge the presence of petitioners software on the
same computer unit.[29] There was a comparison
between petitioners genuine software and Maxicorps
software pre-installed in the computer unit that NBI
Agent Sambiano purchased.[30] Even if we disregard
the sales receipt issued in the name of Joel Diaz,
which petitioners explained was the alias NBI Agent
Samiano used in the operation, there still remains
more than sufficient evidence to establish probable
cause for the issuance of the search warrants.
This also applies to the Court of Appeals ruling
on Sacrizs testimony. The fact that Sacriz did not
actually purchase counterfeit software from
Maxicorp does not eliminate the existence of
probable cause. Copyright infringement and unfair
competition are not limited to the act of selling
counterfeit goods. They cover a whole range of acts,
from copying, assembling, packaging to marketing,
including the mere offering for sale of the counterfeit
goods. The clear and firm testimonies of petitioners
witnesses on such other acts stand untarnished. The
Constitution and the Rules of Court only require that
the judge examine personally and thoroughly the
applicant for the warrant and his witnesses to
determine probable cause. The RTC complied
adequately with the requirement of the Constitution
and the Rules of Court.
Probable cause is dependent largely on the
opinion and findings of the judge who conducted the
examination and who had the opportunity to question
the applicant and his witnesses.[31] For this reason, the
findings of the judge deserve great weight. The
reviewing court should overturn such findings only
upon proof that the judge disregarded the facts before
him or ignored the clear dictates of reason.
[32]
Nothing in the records of the preliminary
examination proceedings reveal any impropriety on
the part of the judge in this case. As one can readily
see, here the judge examined thoroughly the
applicant and his witnesses. To demand a higher
degree of proof is unnecessary and untimely. The
prosecution would be placed in a compromising
situation if it were required to present all its evidence
at such preliminary stage. Proof beyond reasonable
doubt is best left for trial.

On Whether the Search Warrants are in the Nature

of General Warrants
A search warrant must state particularly the
place to be searched and the objects to be seized. The
evident purpose for this requirement is to limit the
articles to be seized only to those particularly
described in the search warrant. This is a protection
against potential abuse. It is necessary to leave the
officers of the law with no discretion regarding what
articles they shall seize, to the end that no
unreasonable searches and seizures be committed.[33]
In addition, under Section 4, Rule 126 of the
Rules of Criminal Procedure, a search warrant shall
issue in connection with one specific offense. The
articles described must bear a direct relation to the
offense for which the warrant is issued. [34] Thus, this
rule requires that the warrant must state that the
articles subject of the search and seizure are used or
intended for use in the commission of a specific
offense.
Maxicorp argues that the warrants issued against
it are too broad in scope and lack the specificity
required with respect to the objects to be seized.
After examining the wording of the warrants issued,
the Court of Appeals ruled in favor of Maxicorp and
reversed the RTCs Order thus:
Under the foregoing language, almost any item in the
petitioners store can be seized on the ground that it is
used or intended to be used in the illegal or
unauthorized copying or reproduction of the private
respondents software and their manuals.[35]
The Court of Appeals based its reversal on its
perceived infirmity of paragraph (e) of the search
warrants the RTC issued. The appellate court found
that similarly worded warrants, all of which
noticeably employ the phrase used or intended to be
used, were previously held void by this Court.[36] The
disputed text of the search warrants in this case
states:
a) Complete or partially complete reproductions or
copies of Microsoft software bearing the Microsoft
copyrights
and/or
trademarks
owned
by
MICROSOFT CORPORATION contained in CDROMs, diskettes and hard disks;
b) Complete or partially complete reproductions or
copies of Microsoft instruction manuals and/or
literature bearing the Microsoft copyrights and/or
trademarks owned by MICROSOFT
CORPORATION;
c) Sundry items such as labels, boxes, prints,
packages, wrappers, receptacles, advertisements and
other paraphernalia bearing the copyrights and/or
trademarks owned by MICROSOFT
CORPORATION;

d) Sales invoices, delivery receipts, official receipts,

ledgers, journals, purchase orders and all other books
of accounts and documents used in the recording of
the reproduction and/or assembly, distribution and
sales, and other transactions in connection with fake
or counterfeit products bearing the Microsoft
copyrights and/or trademarks owned by
MICROSOFT CORPORATION;
e) Computer hardware, including central
processing units including hard disks, CD-ROM
drives, keyboards, monitor screens and diskettes,
photocopying machines and other equipment or
paraphernalia used or intended to be used in the
illegal and unauthorized copying or reproduction
of Microsoft software and their manuals, or which
contain, display or otherwise exhibit, without the
authority of MICROSOFT CORPORATION, any
and all Microsoft trademarks and copyrights; and
f) Documents relating to any passwords or protocols
in order to access all computer hard drives, data bases
and other information storage devices containing
unauthorized Microsoft software.[37](Emphasis
supplied)
It is only required that a search warrant be
specific as far as the circumstances will ordinarily
allow.[38] The description of the property to be seized
need not be technically accurate or precise. The
nature of the description should vary according to
whether the identity of the property or its character is
a matter of concern.[39] Measured against this
standard we find that paragraph (e) is not a general
warrant. The articles to be seized were not only
sufficiently identified physically, they were also
specifically identified by stating their relation to the
offense charged. Paragraph (e) specifically refers to
those articles used or intended for use in the illegal
and unauthorized copying of petitioners software.
This language meets the test of specificity.[40]
The cases cited by the Court of Appeals are
inapplicable. In those cases, the Court found the
warrants too broad because of particular
circumstances, not because of the mere use of the
phrase used or intended to be used. In Columbia
Pictures, Inc. v. Flores, the warrants ordering the
seizure of television sets, video cassette recorders,
rewinders and tape cleaners x x x were found too
broad since the defendant there was a licensed
distributor of video tapes.[41] The mere presence of
counterfeit video tapes in the defendants store does
not mean that the machines were used to produce the
counterfeit tapes. The situation in this case is
different. Maxicorp is not a licensed distributor of
petitioners. In Bache & Co. (Phil.), Inc., et al. v.
Judge Ruiz, et al., the Court voided the warrants
because they authorized the seizure of records
pertaining to all business transactions of the
defendant.[42] And in 20th Century Fox Film Corp. v.
Court of Appeals, the Court quashed the warrant
because it merely gave a list of articles to be seized,

aggravated by the fact that such appliances are

generally connected with the legitimate business of
renting out betamax tapes.[43]
However, we find paragraph (c) of the search
warrants lacking in particularity. Paragraph (c) states:
c) Sundry items such as labels, boxes, prints,
packages, wrappers, receptacles,
advertisements and other paraphernalia
bearing the copyrights and/or trademarks
owned by MICROSOFT CORPORATION;
The scope of this description is all-embracing since it
covers property used for personal or other purposes
not related to copyright infringement or unfair
competition. Moreover, the description covers
property that Maxicorp may have bought legitimately
from Microsoft or its licensed distributors. Paragraph
(c) simply calls for the seizure of all items bearing
the Microsoft logo, whether legitimately possessed or
not. Neither does it limit the seizure to products used
in copyright infringement or unfair competition.
Still, no provision of law exists which requires
that a warrant, partially defective in specifying some
items sought to be seized yet particular with respect
to the other items, should be nullified as a whole. A
partially defective warrant remains valid as to the
items specifically described in the warrant.[44] A
search warrant is severable, the items not sufficiently
described may be cut off without destroying the
whole warrant.[45] The exclusionary rule found in
Section 3(2) of Article III of the Constitution renders
inadmissible in any proceeding all evidence obtained
through unreasonable searches and seizure. Thus, all
items seized under paragraph (c) of the search
warrants, not falling under paragraphs a, b, d, e or f,
should be returned to Maxicorp.
WHEREFORE, we PARTIALLY GRANT the
instant petition. The Decision of the Court of Appeals
dated 23 December 1998 and its Resolution dated 29
November 1999 in CA-G.R. SP No. 44777 are
REVERSED and SET ASIDE except with respect to
articles seized under paragraph (c) of Search
Warrants Nos. 96-451, 96-452, 96-453 and 96-454.
All articles seized under paragraph (c) of the search
warrants, not falling under paragraphs a, b, d, e or f,
are ordered returned to Maxicorp, Inc. immediately.
SO ORDERED.

Before the Court is a petition for review

on certiorari of the Decision[1] of the Court of
Appeals (CA) in CA-G.R. SP No. 51759 granting the
petition for certiorari of Cesar O. delos Reyes and
nullifying Search Warrant No. 98-905 issued on June
18, 1998 by Judge Manuela F. Lorenzo of the
Regional Trial Court (RTC) of Manila, Branch 43.
The Antecedents
On June 18, 1998, SPO3 Benjamin Nuguid of
the Western Police District applied for a search
warrant with the RTC of Manila, Branch 43, against
Cesar Reyes alias Cesar Itlog. In support of his
application, Nuguid submitted his affidavit and that
of Alexis Tan, a housewife. Nuguid and Tan also
testified in support of the application. After the court
conducted examination of the said witnesses, it
issued on even date Search Warrant No. 98-905
authorizing the search of the house allegedly under
the possession and custody of one Cesar
Reyesalias Cesar Itlog, at No. 2600 Oroquieta Street,
Sta. Cruz, Manila, worded as follows:
SEARCH WARRANT
TO ANY PEACE OFFICER:
GREETINGS:
Upon sufficient showing of probable cause, after
determination personally made by the undersigned on
examination under oath of the applicant and his
witness, by means of searching questions and
answers, that respondent Cesar Reyes alias Cesar
Itlog has in his possession, custody and control at the
house and premises at 2600 Oroquieta St., Sta. Cruz,
Manila, the following items:
a) undetermined amount of
methamphetamine hydrochloride; and
b) drug paraphernalia
in violation of Republic Act No. 6425 as amended;
You are hereby commanded to make an immediate
search at anytime of the day or night of the house and
premises above-mentioned and forthwith seize and
take possession of the above-cited items and to bring
said items to the undersigned to be dealt with as the
law require. Further, you are required to submit the
return within ten (10) days from today.
GIVEN UNDER MY HAND AND SEAL this
18th day of June 1998 at the City of
Manila.MANUELA F. LORENZOJ u d g e[2]

6.

PEOPLE
OF
THE
PHILIPPINES, petitioner, vs. CESAR O.
DELOS REYES, respondent.
DECISION

The policemen conducted a search not only of

the house at No. 2600 Oroquieta Street, Sta Cruz,
Manila, which turned out to be the house of
respondent Cesar delos Reyes, but also of the car and
motorcycle owned by the latter, bearing Plate Nos.

UBS 463 and TA 8077, respectively. The car and the

motorcycle happened to be parked near the house.
As per the receipt of the property signed by
Nuguid, the search of the house, the car and the
motorcycle yielded the following:
That in the course of orderly search at the premises
of Cesar Reyes alias Cesar Itlog, inside his room at
the ground floor was a steel vault and when forced
open it yields 13 transparent plastic bags containing
[an] undetermined amount of white crystalline
substance suspected to be Methamphetamine
Hydrochloride or Shabu, three (3) weighing scales
Tamita broad, drugs paraphernalia and 38 pcs. of
Valium-10, also found atop his drawer; a .9mm Smith
& Wesson pistol, Model 39mm with SN-A643638
with magazines loaded with ammo, one (1) loaded
magazine of 9mm and 36 rounds of .25 cal.
ammunition inside his drawer, one (1) plastic
transparent bag containing white crystalline
substance suspected to be Methamphetamine
Hydrochloride or Shabu and three (3) 12-gauge
shotgun ammo. His personal car, a black VITARA
bearing plate No. UBS 463 parked beside his house
was also search[ed] in the presence of [a] Bgy.
Kagawad and found inside tucked beneath the drivers
seat are three (3) sealed transparent plastic bags
containing white crystalline substance wrapped in a
mail envelope suspected to be Methamphetamine
Hydrochloride or Shabu and in his sport Honda
Motorcycle 900cc with plate No. TA 8077 also yields
one (1) transparent plastic sachet containing white
crystalline substance suspected to be
Methamphetamine Hydrochloride or Shabu at the
motorbike back compartment.[3]
According to the Certification prepared by the
NBI Forensic Chemistry Division, the crystalline
substances contained in the transparent plastic bags
which were seized in the respondents house, car and
motorcycle tested positive for methamphetamine
hydrochloride.[4]
Thereafter, two Informations were filed with the
RTC of Manila, Branch 41, against the respondent
for violation of Republic Act No. 6425, as amended
by Rep. Act No. 8294, docketed as Criminal Cases
Nos. 98-165628 and 98-165629, viz:
That on or about June 18, 1998, in the City of
Manila, Philippines, the said accused without being
authorized by law to possess or use any regulated
drug, did then and there willfully, unlawfully and
knowingly have in his possession and under his
custody and control eighteen (18) transparent plastic
bags (small and big) with [a] total net weight of eight
hundred eighty-six point eight (886.8) grams of white
crystalline substance known as shabu containing
methamphetamine hydrochloride, a regulate drug,
without the corresponding license or prescription
thereof.

Contrary to law.[5]
That on or about June 18, 1998, in the City of
Manila, Philippines, said accused did then and there
willfully, unlawfully and feloniously have in his
possession and under his custody and control of one
(1) .9mm Smith & Wesson pistol, Model 39 with
Serial Number-A643638 with two magazines loaded
with ammunitions, 36 rounds of .25 caliber
ammunition, three (3) 12-gauge shotgun
ammunitions, without first having secured from the
proper authorities the necessary license therefor.
Contrary to law.[6]
The respondent filed a motion to quash the
informations on the following grounds: (a) as shown
by their testimony before the trial court, applicant
Nuguid and his witness Tan had no personal
knowledge of the factual allegations in their
affidavits which were appended to the application for
a search warrant; (b) the factual allegations contained
in the said affidavits and their testimonies do not
support a finding of probable cause for violation of
Rep. Act No. 6425, as amended; and (c) Nuguid and
Tan did not personally know the respondent as well
as the latters house because first, Tan identified the
illicit drug seller as Cesar Reyes alias Cesar Itlog
while the respondents name is Cesar delos Reyes;
and, second, the said witnesses described the house
as consisting of a two-storey structure with one
bedroom located at Oroquieta Street, Sta. Cruz,
Manila.
On August 11, 1998, the trial court issued an
Order denying the respondents motion. The court
also denied his motion for reconsideration of said
order.
The respondent forthwith filed a petition for
certiorari against Nuguid and the Public Prosecutor
therein in the CA, alleging, inter alia, that the
questions propounded by RTC Judge Manuela F.
Lorenzo on Nuguid and Tan were leading and not
searching. He also alleged that Judge Lorenzo
delegated the examination of Tan to Nuguid, and
allowed the latter to question her. He, likewise,
reiterated that Tan and Nuguid did not know him
personally because they identified him as Cesar
Reyes when his full name was Cesar delos Reyes.
Furthermore, contrary to the claim of Tan and Nuguid
that his house was a two-storey edifice located at
Oroquieta Street, Sta. Cruz, Manila, said house was
only a one-storey structure located at No. 2600
Oroquieta Street, Sta. Cruz, Manila.
The respondent also assailed the search of his
house, car and motorcycle on the ground that he was
not there when the search was conducted and that no
barangay officials were present as required by
Section 7, Rule 126 of the 1997 Rules of Criminal
Procedure.

On October 15, 1999, the CA rendered a

Decision granting the petition and nullifying the
search warrant. The decretal portion reads:
WHEREFORE, all the foregoing considered, the
petition is GRANTED. The questioned Order dated
January 11, 1999 as well as Search Warrant No. 98905 dated June 18, 1998 are both hereby
ANNULLED and SET ASIDE. Consequently, let a
Writ of Prohibition be issued permanently enjoining
respondents from using in evidence the articles
seized by virtue of Search Warrant No. 98-905 in
Criminal Case Nos. 98-165628 and 98-165629. The
seized articles obtained by virtue of Search Warrant
98-905 consisting of regulated drug, guns and
ammunitions, are hereby ORDERED delivered and
turned over to the proper authorities concerned for
disposition in accordance with law.
No costs. SO ORDERED.[7]
The appellate court ruled that (a) the RTC
delegated its duty to determine probable cause to the
applicant; (b) the application for a search warrant
was based on hearsay evidence; and (c) the
application for the search warrant issued was filed
more than four (4) weeks from the alleged time the
offense took place; hence, was considered stale.
After the denial of its motion for reconsideration
of the said decision, the People of the Philippines
filed the instant petition for review of the decision,
alleging that
THE COURT OF APPEALS [EIGHTH DIVISION]
GRAVELY ERRED IN DECLARING SEARCH
WARRANT NO. 98-905 NULL AND VOID
DESPITE (i) THE UNMISTAKABLE MANNER
BY WHICH THE INVESTIGATING JUDGE
CONDUCTED A PERSONAL EXAMINATION OF
THE APPLICANT AND HIS WITNESS; (ii) THE
SEARCHING QUESTIONS PROPOUNDED AND
ANSWERS OBTAINED; AND (iii) THE
PERSONAL KNOWLEDGE OF THE APPLICANT
AND HIS WITNESS OF THE FACTS THAT
INEVITABLY JUSTIFIES THE ISSUANCE OF
THE SEARCH WARRANT.[8]
The petitioner avers that Judge Lorenzo did not
delegate the determination of probable cause to
Nuguid before issuing the subject warrant. While she
allowed Nuguid to propound questions on Alexis
Tan, the same consisted of only three preliminary
questions, and, as such, was inconsequential. The
petitioner also asserts that the leading questions
propounded by Judge Lorenzo on Tan does not
detract from the fact that searching questions were
also propounded on the witnesses, and that based on
the entirety of such propounded questions and the
latters answers, there was probable cause for the
issuance of a search warrant. The petitioner
maintains that Tan had personal knowledge of the
respondents delictual acts which were in violation of

Rep. Act No. 6425, as amended. Moreover, as

gleaned from the affidavits of Tan and Nuguid and
their collective testimonies before the RTC, the
respondents house was sufficiently described and
identified, which description Nuguid was able to
confirm through his surveillance of the house, the
place where the crime was committed.
The petitioner further contends that although
there was an interregnum of six (6) months from the
time the commission of the crime came to the
knowledge of Tan up to the filing of the application
of the search warrant by Nuguid, the same did not
obscure the finding of probable cause made by Judge
Lorenzo.
The Court gave due course to the petition and
required the parties to submit their respective
memoranda.[9]
After a comprehensive and well-studied review
of the Rollo and the records of the Court of Appeals,
we resolve to deny the petition.
The Petition Was Filed Out of Time
The Office of the Solicitor General (OSG)
admitted in the petition at bar that it received a copy
of the assailed decision of the CA on October 21,
1999. Under Section 2, Rule 45 of the Rules of
Court, the OSG had until November 5, 1999 within
which to file its petition for review on certiorari.
However, it did so only on November 25, 1999, long
after the period therefor had lapsed. We reject as
totally unacceptable the pretext of Solicitor Ma.
Theresa Dolores C. Gomez-Estoesta that, because of
heavy pressure of work,[10] the actual filing of the
motion to file the petition at bar prepared on
November 3, 1999, was accidentally slighted. The
Solicitor is mandated to insure that her motion for
extension was filed within the period therefor.
[11]
Volume of work is a lame excuse. [12] She cannot
escape the adverse effects of her forgetfulness.
Even if we gloss over the gross negligence of the
OSG and resolve the petition on its merits, we find
the same to be barren of merit.
A search warrant must (a) be based on probable
cause; (b) contain a particular description of the place
to be searched; and (c) must describe the items or
property to be seized.[13]Probable cause comprehends
such facts and circumstances as will induce a
cautious man to rely upon and act in pursuance
thereof.[14]
It bears stressing that the requirement of
particularity is related to the probable cause
requirement in that, at least, under severe
circumstances, the lack of a more specific description
will make it apparent that there has not been a
sufficient showing to the Judge that the described
items are to be found in a particular place. Probable
cause must first focus on a specific location. If the
applicant or official is unable to state with sufficient
precision the place to be searched and why he

reasonably believes that contraband or evidence of

criminal activity will be found therein, it is highly
doubtful that he possesses probable cause for a
warrant.[15]
In issuing a search warrant, the Judge must
strictly comply with the requirements of the
Constitution and the statutory provisions.[16]
A search warrant shall not issue except upon
probable cause to be determined personally by the
Judge after examination under oath or affirmation of
the complainant and the witnesses he may produce.
[17]
Before issuing a search warrant, the Judge must
personally examine, in the form of searching
questions and answers, in writing and under oath, the
complainant and his witnesses he may produce, on
facts personally known to them.[18]
The mandate of the Judge is for him to conduct a
full and searching examination of the complainant
and the witnesses he may produce. In the absence of
a rule to the contrary, the determination of probable
cause cannot be delegated by the Judge, in part, or in
whole, regardless of the qualifications of the person
on whom reliance is placed. It is not permissible for
the Judge to share the required determination with
another.[19]
The searching questions propounded to the
applicant and the witnesses must depend on a large
extent upon the discretion of the Judge. Although
there is no hard-and-fast rule as to how a Judge may
conduct his examination, it is axiomatic that the said
examination must be probing and exhaustive and not
merely routinary, general, peripheral or perfunctory.
[20]
He must make his own inquiry on the intent and
factual and legal justifications for a search warrant.
The questions should not merely be repetitious of the
averments not stated in the affidavits/deposition of
the applicant and the witnesses.[21] If the Judge fails
to determine probable cause by personally examining
the applicant and his witnesses in the form of
searching questions before issuing a search warrant,
it constitutes grave abuse of discretion.[22]
A search warrant proceeding is independent of
any criminal case. It is ex parte and non-adversarial.
[23]
Hence, the Judge acting on an application for a
search warrant is not bound to apply strictly the rules
of evidence. As ruled in Brinegar v. United States:[24]
The inappropriateness of applying the rules of
evidence as a criterion to determine probable cause is
apparent in the case of an application for a warrant
before a magistrate, the context in which the issue of
probable cause most frequently arises. The ordinary
rules of evidence are generally not applied in ex
parte proceedings, partly because there is no
opponent to invoke them, partly because the Judges
determination is usually discretionary, partly because
it is seldom that, but mainly because the system of
evidence rules was devised for the special control of
trials by jury.

The Judge is not proscribed, at all times, from

propounding leading questions on the applicant and
the witnesses he may produce. Indeed, the Judge is
allowed to propound leading questions if, for
instance, the witness is a child or is suffering from
mental illness, or if the questions are preliminary or
clarificatory, or when there is difficulty in getting
direct and intelligent answers from the witness who is
ignorant.
But it can hardly be justifiably claimed that, by
propounding leading questions only on the
complainant and the witnesses he may produce, the
Judge thereby conducts probing and exhaustive
examination. After all, a leading question is one
which suggests to the witness the answer which the
examining party desires.[25] By propounding leading
questions, the Judge thereby puts the words or
answers in the mind of the witness to be echoed back.
[26]

It bears stressing that the determination of the

existence of probable cause must be made by a
detached and neutral Judge.[27] If he resorts to
propounding leading questions to the applicant and
his witnesses to determine probable cause, the Judge
may be perceived as being partial, or even in cahoots
with the officers engaged in the often competitive
enterprise of ferreting out crime.[28]
A search warrant is not thereby rendered invalid;
nor is a finding of probable cause proscribed merely
because the Judge propounded leading questions on
the applicant and the witnesses he produces. The
entirety of the questions propounded by the court and
the answers thereto must be considered and
calibrated by the Judge.
The Judge Allowed the
Applicant Nuguid to Examine
Tan, His Witness, and Failed
to Propound Searching Questions
The transcript of the stenographic notes taken
when Nuguid and Tan testified is quoted, in toto,
infra:
COURT
Who is the applicant here?
SPO3 NUGUID:
I am the applicant, Your Honor.
(Swearing the applicant) COURT:
Please stand.
COURT:
Q You are applying for a search warrant.
A Yes, Your Honor.
Q Where is this place to be searched?

A At no. 2006 Oroquieta St., Sta. Cruz,

Manila, Your Honor.
Q Is there any person there whom you
would want to search?
A Yes, Your Honor.
Q Who?
A In the name of Cesar Reyes, Your
Honor, alias Cesar Itlog.
Q Why, what is it he is keeping in his
custody?
A Undetermined quantities of suspected
methamphetamine hydrochloride also
known as Shabu.
Q How do you know that such things exist
in his place?

A A plain housewife, Your Honor.

COURT:
(to SPO3 Nuguid)
You want to ask her questions on record?
SPO3 NUGUID:
Your Honor, she has her statement
COURT:
Yes, but for the record, you may ask her.
SPO3 NUGUID:
Yes, Your Honor.
Q Do you personally know one Cesar
Reyes alias Cesar Itlog?
A Yes, Sir.

A Thru my witness, Your Honor, we were

able to test-buy and examine the
contents in a plastic sachet.

Q How long have you known Cesar Reyes?

Q Why, what did your witness do, if any?

Q How did you come to know him?

A I asked my witness to buy from Cesar

Reyes alias Cesar Itlog and she was
able to buy the subject shabu.

A I was introduced to him by a friend, Sir.

Q How did you know that your witness was

able to buy from Cesar Reyes and not
from other source?
A She told me and according to her she got
it from Cesar Reyes.

A Maybe around 6 months ago.

COURT:
Q What was the purpose of introducing you
to him by your friend?
A It started when I was separated from my
husband when my friend taught me how
to use shabu, Your Honor.

A Alexis Tan, Your Honor.

Q When you were separated from your

husband, what has it something to do
with introducing you to Cesar Reyes?

Q Where is she?

A Thru influence, Your Honor.

A She is the one, Your Honor. (Witness

pointing to a lady who answered when
asked of her name as Alexis Tan).

Q What connection does it have?

Q Who is this witness you are referring to?

COURT:
Alright, I will ask her.
(Swearing Ms. Tan)
Q Do you swear to tell the truth and nothing
but the whole truth?
A Yes, I do.
Q Please state your name, age and other
personal circumstances.
A ALEXIS TAN, 34 years old, married,
jobless and with address c/o WBD Drug
Enforcement Section, U.N. Ave.,
Manila.

A They know each other, Your Honor. My

friend knows that Cesar Reyes is selling
shabu, Your Honor.
Q Did you really find out if Cesar
Reyes alias Cesar Itlog is selling
shabu?
A Yes, Your Honor.
Q How?
A At first, I was accompanied by my friend,
but later I went there on my own alone.
Q You mean, this Cesar Reyes is really in
the business if (sic) selling shabu?
A Yes, Your Honor.

Q What is your occupation?

Q Knowing his prohibited ((sic) activity,

does he also sell to any other people?

A None for the moment, Your Honor.

A Those known to him, Maam.

Q What was your occupation, if any, before?

Q You consider yourself as very well known

to him?

A Yes, Your Honor.

Q Have you also seen him in [the] company
of that friend of yours who introduced
you to him?
A Yes, Maam for many times.
Q And you have been going to this place of
Cesar Reyes several times also.
A Yes, Your Honor, I bought shabu from
him.
Q How did he sell it to you?
A I will call him first through the phone
before I go to him.
Q You make an appointment with him first?
A Yes, Your Honor.
Q Where is this place?
A At Oroquieta Street, Sta. Cruz, Manila,
Your Honor.
Q Everytime you go and buy shabu from
him, is it always ready for sale to you?
A Yes, Your Honor.
Q You mean he has always in his custody
and does not run out of stock?
A There was one time when I called him if
he could sell one for me he told me
through the phone to call back after an
hour because he will be getting it from
other source.
Q Did you call him back after an hour?
A Yes, Your Honor, and he told me to come
over to his place.
Q How much quantity (sic) did you buy
from him?

A Because he also talked [to] callers on the

phone. During the time I bought shabu
from him, he also talked to somebody
on the phone.
Q That is only. . .
Q Since when did you start buying shabu
from him?
A Between December 1997 and January
1998, Your Honor.
Q The shabu you had been buying from him,
do you use it or sell it to some other
person?
A No, Your Honor, I do not sell it.
Q You use it?
A Yes, Your Honor.
Q You know the house of Cesar Reyes after
confirmation, in what particular part of
the house does Cesar Reyes entertain
you?
A In [the] living room, Your Honor.
Q When you go to his house, you usually go
and see him in that (sic) living room
and not elsewhere before he comes out
from that house?
A Normally, Your Honor, when I go to his
house, he would open the door for me
and would say come in then ask me
how much. If, for example, I would say
3 grams, he would just go to his room
and comes out with the item.
Q In other words, everytime you go to his
place to buy shabu she (sic) is there
ready to entertain you?
A Yes, Your Honor.

Q I am referring to the quantity.

Q Is it not that he is still busy conversing

with other people when he comes out
from his room?

A 3 grams, Your Honor, he does not sell

lower than 3 grams, Your Honor, it
must be 3 grams and above.

A When I go to his house, he is there ready

to open for me (sic) he knows I am
coming.

Q You have not yet bought from him only

one gram?

Q That is always the case, he is ready to

open the door for you?

A No, Your Honor, not less than 3 grams.

A There was also a time that his maid

opened the door for me.

A For P3,000.00, Your Honor.

Q During the time you bought shabu from

Cesar Reyes, were you the only
customer?
A He entertains customer (sic) one at a time,
Your Honor, but he has several
customers.
Q How do you know that he has several
customers?

Q Aside from the maid, did you see other

people inside that house?
A His family- his wife and a baby then he
would usually let them stay away from
the living room or just get inside the
room.
Q What kind of a house does Cesar Reyes
have?

A A two-story (sic) house, Your Honor.

A Yes, Your Honor.

Q Not an apartment?

Q Did you notice if his house has several

rooms?

A No, Your Honor.

Q A single detach (sic) house?
A Yes, Your Honor.
Q Is there any guard on (sic) the main gate
of the house?
A None, Maam, it is just an ordinary house.
Q There are no people you usually see when
you go there?
A There are some members of the family
but usually he let (sic) them stay away
from the living room.
Q Was there an occasion when somebody
arrives when you see him?
A None, Your Honor.
Q So, this is a one-on-one affair.
A Yes, Your Honor.
Q How do you know that these things are
stored in his house?

A There is one room on the ground floor,

Maam, but sometimes he also goes
upstairs and comes down with the
shabu item. Most of the time of the
transaction just on the ground floor.
Q Is there a partition in that particular room?
A It is just a single room, Maam.
Q Did you not notice if there are other
people in that room in the ground floor?
A I did not notice but there was one time
when I saw a child but he let that child
stay away from the visitor.
Q You mean this room where you saw him
come out serve as storeroom of shabu?
A Yes, Maam.
Q Did he tell you about it?
A Yes, Maam.
Q Why did he tell you?

A Everytime I bought shabu from him, he

would get the money from me and then
get inside his room to get a sachet of
shabu and give it to me.

A Because when he entertained me, he left

me for the moment and I said where do
you go and he said I will get inside that
room to get the shabu.

Q Are you sure that these things (shabu) are

stocked in his house permanently or
maybe they are just brought there from
somewhere because he knows you are
coming to buy and get it?

Q So, since you were requested by the

police officer to purchase shabu from
Cesar Reyes, how many times?

A There was once when I called him by

phone and he asked me "how much and
I told him I will buy for (sic) P4,000.00
worth of shabu and he said you just
proceed to my place by 2 oclock in the
afternoon, I will have to get it from
other source.
Q He got it from other source for you?
A According to him, if it is by
large (sic) quantity and he will just
repack it in his house.
Q He himself told you?
A Yes, Your Honor, but he does not reveal
from whom.
Q You have no idea?
A No, Your Honor.
Q You did not ask him?
A No, Your Honor.
Q You used to transact business on the
ground floor of his house?

A That was the only time, Your Honor.

COURT: (to SPO3 NUGUID)
Q Did you make surveillance in that place?
A Yes, Your Honor, we made a surveillance
after the test-buy.
Q What did you do?
A During the surveillance, we brought
several witnesses.
Q Did you notice people going there to the
house of Cesar Reyes?
A Yes, Your Honor.
Q And what have you observed?
A Some customers are even using cars.
Q You do not know if those people were
visitors or not?
A We are not sure if those people are visitors
of Cesar Reyes because we have no
contact inside his house.
COURT: (to Ms. TAN) -

Q When did you buy shabu from Cesar

Reyes?
A June 13, 1998, Your Honor.
Q This Cesar Reyes at the time did not have
any idea that you were there being sent
by the police officers?
A No, Your Honor.
Q Did you really go to his place and
successfully bought the shabu from
Cesar Reyes?
A Yes, Your Honor.[29]
The questions propounded on Nuguid by Judge
Lorenzo were not searching and probing, but merely
superficial and perfunctory. The records show that in
his application for a search warrant, Nuguid
described the place to be searched as the house
located at No. 2600 Oroquieta Street, Sta. Cruz,
Manila, under the name of Cesar Reyes alias Cesar
Itlog. However, the Judge ignored this inconsistency
and did not bother to inquire from Nuguid why he
applied for a search warrant of the premises at No.
2600 Oroquieta Street, Sta. Cruz, Manila, when the
house where Tan had apparently purchased shabu
from the respondent was located at No. 2006
Oroquieta Street, Sta. Cruz, Manila.
Nuguid declared that he and the police officers
conducted a test-buy on June 13, 1998, using Tan as
the buyer for said purpose. The ordinary procedure
for a test-buy is for the police officers to monitor and
observe, at a distance, the sale of illicit drugs by the
suspect to the buyer. In this case, when the Judge
asked Nuguid how Tan was able to buy shabu from
the respondent, Nuguid reported that Tan told him
that he got shabu from Cesar Reyes, implying that he
did not witness the test-buy; however, Nuguid also
declared that he was at a distance when the test-buy
was conducted.
The Judge also failed to ask Nuguid the
circumstances upon which he and the other police
officers came to know how Tan was able to purchase
shabu from the respondent. Inexplicably, Nuguid
conducted a search of the house of the respondent
only after the test-buy and not before then. However,
the Judge failed to inquire why the application for a
search warrant was made only on June 18, 1998, or
after the lapse of five days from the time the test-buy
was conducted on June 13, 1998. The Judge also
failed to ask Nuguid why no surveillance was made
before the test-buy and whether any report on the
surveillance operations conducted on the respondents
house after the test-buy was submitted.
Even a cursory reading of the transcript will
show that most of the questions propounded on Tan
by the Judge were leading questions, and that those
which were not leading were merely based on or
related to the answers earlier given to the leading
questions. By asking such leading questions, the

Judge thereby supplied the answers to her questions.

Although Tan testified that she used to buy at least
three (3) grams for P3,000.00 from the respondent
during the period of December 1997 to January 1998,
the Judge did not even bother to inquire from Tan, a
plain housewife who was separated from her
husband, how she could afford to purchase shabu
for P3,000.00 on several occasions during the period
of December 1997 to January 1998.
Indeed, there was an interregnum of more than
four (4) months from the time Tan purchased shabu
from the respondent up to the time when the test-buy
was supposedly made. However, the Judge was not
even curious as to why Tan failed to purchase shabu
from the respondent for such a long period of time,
considering that from her testimony, Tan made it
plain that she was a regular user of shabu. The Judge
should have asked Tan why she did not buy shabu
from the respondent for more than four months.
The Judge even failed to inquire from Tan when
and under what circumstances Nuguid was able to
meet with her to discuss how she would be utilized
for the test-buy. The curiosity of the Judge was not
even aroused when, in answer to her question on the
location of the house of Cesar Reyes, Tan replied that
it was located at Oroquieta Street, Sta. Cruz, Manila,
without specifying the house number. At the very
least, it behooved the Judge to require Tan to specify
the house number if only to test her credibility. And
yet, immediately after propounding the questions on
Tan and Nuguid, the Judge announced that she was
issuing the search warrant.
A June 13, 1998, Your Honor.
Q This Cesar Reyes at the time did not have
any idea that you were there being sent
by the police officers?
A No, Your Honor.
Q Did you really go to his place and
successfully bought the shabu from
Cesar Reyes?
A Yes, Your Honor.
COURT
(to SPO3 NUGUID)
Q During the time that Alexis Tan was being
sent there to buy shabu from Cesar
Reyes, where were you then?
A We were at a distance, Your Honor.
COURT:
Do you have something to add questions
from her?
SPO3 NUGUID:
No more at the moment, Your Honor.
COURT: That will be all for now and the
Court will issue the Search Warrant.[30]

The Judge allowed and even egged on Nuguid to

examine Tan and elicit facts and circumstances from
her relating to the alleged purchase of shabu from the
respondent. What is so worrisome is that Nuguid,
besides being the applicant, was the same police
officer who asked Tan to buy shabu from the
respondent and the one who, along with other
officers, arrested the respondent. That Nuguid
propounded comparatively fewer questions on Tan is
beside the point. By allowing Nuguid himself to
examine Tan, the Judge thereby compromised her
impartiality.
We echo, once again, the oft-cited caveat of the
Court:
It has been said that of all the rights of a citizen, few
are of greater importance or more essential to his
peace and happiness than the right of personal
security, and that involves the exemption of his
private affairs, books, and papers from inspection and
scrutiny of others. While the power to search and
seize is necessary to the public welfare, still it must
be exercised and the law enforced without
transgressing the constitutional rights of the citizens,
for the enforcement of no statute is of sufficient
importance to justify indifference to the basic
principles of government.
Thus, in issuing a search warrant, the Judge must
strictly comply with the requirements of the
Constitution and the statutory provisions. A liberal
construction should be given in favor of the
individual to prevent stealthy encroachment upon, or
gradual depreciation of the rights secured by the
Constitution. No presumption of regularity is to be
invoked in aid of the process when an officer
undertakes to justify it.[31]IN LIGHT OF ALL THE
FOREGOING, the petition is DENIED.SO
ORDERED.
7.

G.R. No. 109232 December 29, 1995

PEOPLE OF THE PHILIPPINES, plaintiffappellee,

vs.
ANG CHUN KIT also known as "ROMY
ANG," accused-appellant.

BELLOSILLO, J.:
ANG CHUN KIT, a Chinese national and reputed to
be a member of a Hong Kong-based drug syndicate
operating in Metro Manila, was collared by
NARCOM operatives in a buy-bust operation after
he sold to an undercover agent for P400,000.00 a kilo
of methamphetamine hydrochloride known as shabu.
His car also yielded more of the regulated drug
neatly tucked in a Kleenex box.

On 8 November 1991, at three o'clock in the

afternoon, a Confidential Informer (CI) reported to
Chief Investigator Avelino I. Razon that he (CI) had
arranged a transaction with a drug dealer interested in
selling a kilo of shabu for P400,000.00 and agreed to
consummate the sale at seven o'clock that evening at
the lobby of the Cardinal Santos Medical Center.
Chief Investigator Razon immediately organized a
buy-bust team composed of Chief Inspector Rolando
Magno as team leader, SPO3 Lolita Bugarin, SPO2
Cesar Jacobo as poseur-buyer, SPO2 Albert San Jose,
and SPO2 Domingo Rubi. Forty (40) bundles of
genuine and counterfeit P100-bills were prepared
with each bundle supposed to contain P10,000.00. To
camouflage the counterfeit bills genuine P100-bills
were placed on the top and bottom of ten (10)
bundles.
At five o'clock in the afternoon the team went to the
Cardinal Santos Medical Center. The CI and SPO2
Jacobo who was carrying the plastic bag of money
proceeded to the lobby of the hospital while the
others moved around to avoid detection. At fifteen
minutes past seven the accused arrived in a gray
Toyota Corolla with Plate No. TBC-958. He was met
at the lobby by the CI who introduced SPO2 Jacobo
to him as the person interested to buyshabu. After
allowing the accused a quick look at the bundles of
money, SPO2 Jacobo and the CI followed him to the
parking lot where the latter took out from the trunk of
his car a blue SM Shoemart plastic bag and handed it
to SPO2 Jacobo. After ascertaining that the bag
contained approximately one (1) kilo of shabu, SPO2
Jacobo handed the boodle money to the accused.
Then SPO2 Jacobo casually lit a cigarette to signal to
the other NARCOM operatives to move in and effect
the arrest. The other members of the team closed in,
placed the accused under arrest and seized the money
from him. They also searched his vehicle and found
on the dashboard of his car three (3) packets more of
crystalline substance in a Kleenex box.
SPO3 San Jose brought the regulated drug recovered
from the accused to the PC Crime Laboratory where
after a qualitative examination the forensic chemist
confirmed the substance found in the SM Shoemart
bag and in the Kleenex box to be shabu and weighing
983.27 grams and 293.70 grams, respectively:
The accused refuted the charges. He tried to explain
his presence at the Cardinal Santos Medical Center
thus: In the early evening of 8 November 1991 as he
was preparing to have dinner with some friends in
Greenhills, San Juan, he received a telephone call
from his friend Johnny Sy asking if he could ride
with him to Greenhills to visit a sick friend at the
Cardinal Santos Medical Center. Since he (accused)
was able to borrow the car and the driver of his
cousin Roman Ong, he acceded to Johnny. He passed
for him and his friend Anthony Co and brought them
to the medical center. Johnny and Anthony alighted
in front of the lobby. He proceeded to the parking lot

with the driver and answered the call of nature. Then

he lit a stick of cigarette. However some twenty (20)
to thirty (30) minutes later, plainclothesmen with
guns drawn, Johnny and Anthony in tow, suddenly
appeared from nowhere and arrested him and Uy
without informing them the reason for their arrest.
He together with Uy, Sy and Co was then brought to
Camp Crame where he was mauled, detained and
interrogated without the assistance of counsel. His
repeated requests to make a telephone call to his
relatives and counsel were denied.
Loreto Jacobe, the security guard on 12-hour duty at
the hospital starting seven o'clock that evening,
testified that from the time he took his post that night
until he left there was no untoward incident at the
hospital lobby or in its vicinity as reflected in the
logbook. His statements were corroborated by his
supervisor Vicente Praga. The accused concludes that
if there was indeed an unusual incident at the lobby,
e.g., sale of regulated drugs, then the security guards
on duty would have noted it in their logbook.
On 14 August 1992 the Regional Trial Court of
Pasig, Br. 155, 1 giving credence to the testimonies of
the prosecution witnesses, found appellant Ang Chun
Kit also known as "Romy Ang" guilty of selling
shabu in violation of Sec. 15, Art. III, R.A. No. 6425,
as amended, sentenced him to life imprisonment and
ordered him to pay a fine of P30,000.00. Hence this
appeal.
The accused maintains his innocence and faults the
trial court in not holding that the crime could not
have been committed under the circumstances
narrated by the arresting officers and that the alleged
buy-bust operation was a frame-up and the evidence
merely planted. He argues that the prosecution was
not able to prove his guilt beyond reasonable doubt
since every piece of evidence presented against him
is tainted with constitutional infirmities.
We are not impressed. The crux of this appeal hinges
on the credibility of witnesses. In People v. Co 2 we
said that "[i]t is doctrinally entrenched that the
evaluation of the testimonies of witnesses by the trial
court is received on appeal with the highest respect
because such court has the direct opportunity to
observe the witnesses on the stand and determine if
they are telling the truth or not." Corollarily,
in People v. Ballagan 3 we ruled that "[i]n a long line
of decisions this Court has consistently held that the
findings of facts of a trial judge who has seen the
witnesses testify and who has observed their
demeanor and conduct while on the witness stand
should not be disturbed on appeal unless certain facts
of substance and value have been overlooked which,
if considered, may affect the outcome of the case.
When the issue is one of credibility of witnesses the
appellate courts will generally not disturb the trial
court's findings." In the case before us we do not see
any fact of substance and value which may have been

overlooked by the trial court. Consequently, we defer

to its holding that ". . . indeed the prohibited drugs in
question were confiscated from the accused Ang
Chun Kit alias "Romy Ang" when he sold the drugs
to poseur-buyer SPO2 Cesar Jacobo." 4
Moreover, we do not believe that Police Officers
Jacobo, Rubi and San Jose, all public officials who
enjoy the presumption of regularity in the
performance of official duty, will enmesh themselves
in falsehood and implicate the accused unless they
have been impelled by an evil or ulterior motive. But
neither the accused nor the record offers any. As
correctly observed by the trial court, "[o]f the
thousands, nay, millions of people in Metro Manila,
why would the police officers single out the accused
to be the object of a frame-up." 5 While the accused
maintains that he is a victim of a frame-up, which is
the usual defense put up by persons accused of being
drug pushers, 6 he failed to substantiate his claim. It is
settled that where there is no evidence to indicate that
a prosecution witness was actuated by improper
motive the presumption is that he was not so actuated
and that he would not prevaricate and cause
damnation to one who brought him no harm or
injury; hence his testimony is entitled to full faith and
credit. 7
The accused underscores what he perceived to be a
flip-flopping stance of poseur-buyer SPO2 Jacobo. In
one instance Jacobo said that he saw the shabu at the
hospital lobby contrary to the version of the
prosecution witnesses that the prohibited substance
was taken from the trunk of the car after the accused,
the poseur-buyer and the CI emerged from the
hospital lobby. The defense would lay emphasis on
the seeming discrepancy between the statements of
SPO2 San Jose that they did not apply ultraviolet
powder on the marked money as that was being done
by the PC Crime Laboratory, and that of SPO2
Jacobo that the marked money was not treated with
ultraviolet powder since they ran out of it.
We do not consider the supposed inconsistencies
substantial or of such nature as to cast serious doubt
on the credibility of the prosecution witnesses. On
the contrary they appear to be more of honest lapses
which do not impair the intrinsic credibility of their
testimonies. Thus when later asked by the trial court
with regard to the marked money SPO2 Jacobo
clarified that after he showed the boodle to the
accused the latter immediately left for his car
COURT.
Q: Where did you show the money?
WITNESS.
A: At the lobby of the Cardinal Santos, sir.

Q: After showing the boodle money what did the

accused do?
A: He then proceeded to his car, sir. 8
It is elementary in the rule of evidence that
inconsistencies in the testimonies of prosecution
witnesses with respect to minor details and collateral
matters do not affect the substance of their
declaration nor the veracity or weight of their
testimony. 9 Such minor inconsistencies even serve to
strengthen the credibility of the prosecution
witnesses as they erase any suspicion of a rehearsed
testimony and thus can be considered a badge of
truth rather than of falsehood. Consequently we
consider innocuous whatever discrepancies there
were in the testimonies of the government agents.
For sure the alleged inconsistencies do not detract
from the established fact that the accused was caught
inflagrante delicto as a result of a buy-bust operation
since the arresting agents were able to give an
otherwise clear and convincing account of the
circumstances leading to the arrest of the accused.
And, in every prosecution for illegal sale of
dangerous drugs what is material and indispensable
is the submission of proof that the sale of illicit drug
took place between the seller and the poseur-buyer.
The accused submits that "it is beyond human
comprehension how such a big transaction, illegal at
that, could be perfected . . . in front of the watchful
eyes of so many people." 10
We can comprehend. From the testimony of the
prosecution witnesses, which we find credible, the
exchange was casual and swift: the accused was
introduced to the poseur-buyer by the CI; he was
shown the money; he passed on the prohibited drug
to the poseur-buyer. There was no verification of the
identity of the buyer. Neither was the money counted
nor tests conducted to determine the quality and
quantity of the regulated drug. There was no need.
The accused knew the CI who introduced the poseurbuyer to him. There was rapport at once. Thus the
transaction which was consummated in the parking
lot of the hospital is no different from an ordinary
drug-pushing informal, casual, daring and swift
where the peddlers at times operate in the open
and in the presence of other people, e.g., in a billiard
hall, 11 in front of a store, 12 along a street at 1:45
p.m., 13 in front of a house, 14 which does not
necessarily discourage them from plying their trade
as these may even serve to camouflage their illicit
trade. 15 As we have said, there was nothing absurd in
such a scenario. The selling of regulated or
prohibited drugs to complete strangers, openly and in
public places, has become a common occurrence, a
sad fact which this Court has taken notice of and
attributed to the growing casualness of drug pushers
in the pursuit of their clandestine activity, as if it

were a perfectly legitimate operation involving no

particular caution or qualm of conscience. 16 Drug
pushers have become increasingly daring in the
operation of their trade and have not hesitated to act
openly, almost casually, even in scornful violation of
the law, in selling the illegimate merchandise to any
and all buyers. 17
The accused then harps on the testimonies of his
witnesses, the security guards on duty, that "there
was nothing untoward that happened at the hospital
lobby or premises." 18 If we were to believe these
security guards in their version then all the more
should we discredit the accused himself who narrated
that while he was at the parking lot of the hospital
several armed men and women with drawn guns
suddenly swooped down on him, pointed their
weapons at him, ordered him to raise his hands in the
air and then arrested him for no apparent reason.
Certainly, if these security guards were conscientious
in the performance of their duties, as how the accused
would like them to appear, then they should have
noticed and noted in their logbook the arrest of the
accused in the hospital parking lot which was just a
few meters away from the lobby. Accordingly, we
cannot give full faith to the testimonies of defense
witnesses Jacobe and Praga.
The defense also asks the Court to reject the story of
the prosecution that the shabu was contained in one
plastic bag instead of several small plastic bags as
how drug dealers would normally pack the prohibited
drug for easy concealment. We cannot yield. While
the swiftness with which the transaction was
undertaken is reminiscent of small-time drugpushing, what is involved in the case at bench is not a
measly sum of money and a small quantity of drugs
that could be packed in tea bags but a wholesale deal
involving P400,000.00 and a kilo of shabu.
The defense then faults the prosecution for its failure
to present the marked money and urges the Court to
applyPeople v. Distrito 19 where in acquitting the
accused we said that "[n]o marked money was seized
from (him) as none passed from the alleged buyers to
the alleged sellers." But the reliance on People v.
Distrito is misplaced. We have ruled often enough
that the absence of marked money used in buy-bust
operations does not create a hiatus in the evidence for
the prosecution. 20 Parenthetically, if the defense only
read People v. Distrito carefully it would have
realized that in that case there was really no exchange
of money as even the policemen admitted that they
arrested the suspect before an actual buy-bust
operation could be effected, unlike in the case at
bench where there was an actual exchange of illegal
merchandise for money.
The accused also takes to task the absence of a blotter
report before the buy-bust operation and the
supposed failure of the apprehending officers to seal
the plastic bag of shabu upon its seizure. These are

trivialities which do not abate the fact that the

accused was arrested after he unlawfully sold
methamphetamine hydrochloride to NARCOM
agents. Suffice it to say that a prior blotter report and
the sealing of the plastic bag of shabu are not
indispensable nor required in buy-bust operations.
The defense argues that the shabu found inside the
car is inadmissible in evidence as it was procured
through an illegal search and seizure, the same
having been found inside the car and not in the
person of the accused who was outside the car. But
the search inside the car was an incident of a lawful
arrest. It must be remembered that the accused was
with a driver who was inside the car. Upon the arrest
of the accused, the arresting agents also had to
neutralize the driver inside the car who could be
presumed at that instance to be acting together and in
conspiracy with the accused. For a weapon could
have easily been concealed in the dashboard of the
vehicle which was very well within the reach of the
driver at that time. Corollarily, in People
v. Figueroa we reiterated that "[t]he warrantless
search and seizure, as an incident to a suspect's
lawful arrest, may extend beyond the person of the
one arrested to include the premises or surroundings
under his immediate control." 21 Thus whether the
accused gave his consent to the search of the car
which the arresting agents say he did, but which he
denies, is immaterial.
We however agree with the accused that his signature
on the receipt or lists of items confiscated from him
is inadmissible in evidence as there is no showing
that he was then assisted by counsel. In People
v. Mauyao we said that "conformance to these
documents are declarations against interest and tacit
admissions of the crime charged, since merely
unexplained possession of prohibited drugs is
punished by law. They have been obtained in
violation of his right as a person under custodial
investigation for the commission of an offense, there
being nothing in the records to show that he was
assisted by counsel." 22 With regard to the Booking
Sheet and Arrest Report, we already said in People
v. Morico that "when an arrested person signs a
Booking Sheet and Arrest Report at a police station
he does not admit the commission of an offense nor
confess to any incriminating circumstance. The
Booking Sheet is merely a statement of the accused's
being booked and of the date which accompanies the
fact of an arrest. It is a police report and may be
useful in charges of arbitrary detention against the
police themselves. It is not an extra-judicial
statement and cannot be the basis of a judgment of
conviction." 23
But as in the cases of Mauyao and Morico, accused
Ang Chun Kit's conformity to the questioned
documents has not been a factor in his conviction
since his guilt has been adequately established by the
detailed and unshaken testimonies of the officers who

apprehended him. Hence even disregarding the

questioned documents we still find the accused guilty
beyond reasonable doubt of the crime charged.
Interestingly, we find it difficult to believe the
version of the accused. He did not even present
Johnny Sy or Anthony Co to substantiate his story,
much less did he reveal the name of the patient they
were to visit in the hospital. Besides it appears that
there was no reason for the accused to wait for
Johnny Sy and Anthony Co in the parking lot as they
did not have any prior agreement to meet there. On
the contrary the accused still had to attend a dinner
somewhere and should not have waited any longer.
WHEREFORE, the Decision of the trial court finding
accused-appellant Ang Chun Kit also known as
"Romy Ang" guilty beyond reasonable doubt of
selling methamphetamine hydrochloride in violation
of Sec. 15, Art. III, R.A. 6425, as amended,
sentencing him to life imprisonment and ordering
him to pay a fine of P30,000.00 is AFFIRMED.
Costs against accused-appellant.
SO ORDERED.

8. SONNY
ZARRAGA Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
TINGA, J.:
This Petition for Review on Certiorari 1 seeks the
reversal of the Decision 2 of the Court of Appeals in
CA-G.R. CR No. 22289 which affirmed with
modification the Decision3 of the Regional Trial
Court of Calamba, Laguna, Branch 36, convicting the
accused of violation of Republic Act No. 6425 (RA
6425), as amended.
The facts are as follows:
On December 28, 1995, Sonny Zarraga (Zarraga) and
Alvin Jose (Jose)4 were charged with violation of
Sec. 21(b), Art. IV in relation to Sec. 29, Art. III of
RA 6425, otherwise known as The Dangerous Drugs
Act of 1972, as amended, in an Information 5 which
reads:
That on or about November 14, 1995, in the
municipality of [C]alamba, [P]rovince of Laguna,
and within the jurisdiction of this Honorable Court,
the above-named accused, conspiring, confederating
and mutually helping one another, not being licensed
or authorized by law, did then and there willfully,
unlawfully and feloniously sell and deliver to other

person
METHAMPHETAMINE
HYDROCHOLORIDE (or Shabu) weighing 98.40
grams, a regulated drug, and in violation of the
aforestated law.
CONTRARY TO LAW.
The two accused were arraigned on March 28, 1996.
Both pleaded not guilty. Trial forthwith proceeded.
The prosecution sought to establish that at around
9:30 in the morning of November 14, 1995, an
informant known as Noy Canlas, together with
former Narcom officer, P/Sr. Inspector Recomono,
informed P/Supt. Joseph R. Castro (Castro) of the 4th
Narcotics Regional Field Unit that a group of big
time drug pushers from Greenhills will deliver and
sell 100 grams of shabu at a price of P1,000.00 per
gram or a total of P100,000.00 at the Chowking
Restaurant located in Brgy. Real, Calamba, Laguna.
The delivery would be made before lunchtime.
Castro formed a team composed of himself as team
leader, SPO1 Bonifacio Guevarra (Guevarra) as
poseur buyer, and SPO2 William Manglo (Manglo)
and SPO2 Wilfredo Luna (Luna) as back-up to carry
out a buy-bust operation. Guevarra was provided
with marked money consisting of a P1,000.00-bill
and 99 pieces of boodle money (money bundle).
Castro, Manglo and Luna proceeded to the restaurant
on board a Mitsubishi Lancer, while Guevarra and
the informant rode an L-300 van. They arrived at
Chowking at 11:00 oclock in the morning, parked
their vehicles facing each other, and ensured that
their positions gave them a commanding view of the
people going in and out of the restaurant.
At around 4:00 oclock in the afternoon, a silver gray
Toyota Corolla with Plate No. UBV-389 arrived. The
informant waived at the cars driver, Zarraga, to park
near Guevarras van. Zarraga obliged, parking about
three (3) meters from the van. The informant then
moved towards Zarraga and called Guevarra. When
Guevarra approached, Zarraga asked him if he could
afford to buy 100 grams of shabu. Guevarra replied
in the affirmative. Zarraga then asked his companion,
Jose, to bring out the shabu. Jose brought out the
shabu, wrapped in plastic and white paper, and
handed it over to Zarraga who gave it to Guevarra.
The latter, in turn, gave the money bundle to Zarraga.
Guevarra then scratched his head, a pre-arranged
signal that the transaction has been consummated.
Immediately, Manglo and Luna approached and
introduced themselves as Narcom operatives and
arrested Zarraga and Jose. The money bundle was
recovered from Zarraga. Guevarra handed the shabu
to Manglo who, in turn, gave it to Luna. Castro
brought Zarraga and Jose to Camp Vicente Lim for
investigation.6

The shabu was brought to the PNP Crime Laboratory

by SPO3 Edgar Groyon for examination. P/Sr.
Inspector Mary Jean Geronimo, a forensic chemist,
examined the specimen and issued a Chemistry
Report7 confirming
that
metamphetamine
hydrochloride is present in the specimen. She further
testified that the specimen is second or low grade
methamphetamine
hydrochloride, i.e., that
the
specimen contains more or less 80% of the
substance.8
The evidence for the defense, on the other hand,
showed that in the afternoon of November 13, 1995,
Zarraga and Jose went to Manuela Complex to
exchange Japanese currency for Philippine Pesos.
They afterwards went to Megamall to buy hangers
upon the request of Zarragas wife, Pinky. At the
basement of the mall, Zarraga was accosted by two
men, one of whom [later identified as SPO3 Noel
Seno (Seno)] poked a gun at and handcuffed him.
The man also took Zarragas cash amounting
to P85,000.00. Jose was also handcuffed.
They went to the third floor where Zarragas car was
parked and were met by other men whom they later
identified as Castro and a certain Corpuz. A man in
sando, shorts and slippers took the wheel, while Seno
seated himself on the passengers seat. Another man
accompanied Zarraga and Jose at the back seat.
Zarraga
claimed
that
Seno
took
his
jewelry, P85,000.00 cash, a spare tire, jack, and other
car accessories.
The men communicated with some other persons
through a hand-held radio. Later, one of the men
opened the dashboard compartment and brought out
something that looked like sand. He tasted it and
claimed that the substance is shabu.9
The group then drove towards Greenhills and stopped
in front of Tropical Hut. Zarragas blindfold was
removed and he was asked by one of the men about
his mother-in-law, Elizabeth Espaola, a suspected
drug pusher.
Zarraga had a chance to tell his wife through his
cellular phone that they had been kidnapped when the
abductors went out to eat. Upon their return, Zarraga
and Jose were boarded on different cars. They were
later taken to a room with a lavatory. Zarraga was
asked to step out and was shown a picture of his
mother-in-law. He was asked whether Espaola
would pay P1.5 million for their release.
Castro negotiated with Zarragas wife who offered to
withdraw P75,000.00 from a bank. The following
day, Seno met Pinky at the bank, supposedly for the
latter to deliver the ransom money. However, Pinky
refused to withdraw the money because Zarraga was
nowhere to be seen. She became hysterical,
prompting Seno to hurriedly leave the bank.

Zarraga and Jose were then taken to Camp Vicente

Lim in Laguna for investigation. 10

or substance has been overlooked, misapprehended,

or misapplied by the trial court.

The trial court, giving full faith and credence to the

prosecutions evidence, convicted the accused. The
Court of Appeals affirmed the conviction but
modified the penalty of imprisonment and deleted the
penalty of fine imposed by the trial court. The
appellate court disposed as follows:

Indispensable in all prosecutions for violation of RA

6245, such as the instant case, is the submission of
proof that the sale of the illegal drug took place
between the poseur-buyer and the seller. The element
of sale must be unequivocally established in order to
sustain
a
conviction. 14 Further,
the corpus
delicti must be presented as evidence in court.
The corpus delicti should be identified with
unwavering exactitude.15

WHEREFORE, premises considered, the assailed

Decision is hereby MODIFIED. Appellant Sonny
Zarraga is hereby sentenced to suffer the penalty of
imprisonment from 6 years of prision correccional as
minimum, to 8 years and 1 day of prision mayor as
maximum. Appellant Alvin Jose is hereby sentenced
to suffer an imprisonment of 2 months and 1 day
of arresto mayor.
The period of preventive imprisonment appellants
have undergone shall be credited in their favor
pursuant toArticle 29 of the Revised Penal Code, as
amended by RA 6127 and as further amended
by Executive Order No. 214 dated July 10, 1997.
The penalty of fine amounting to P2 Million is
hereby deleted.
SO ORDERED.
Jose, a minor at the time of the alleged commission
of the offense, filed a petition for review on certiorari
of the Court of Appeals judgment of conviction. In a
Decision 11 dated January 13, 2005, this Court
acquitted him for failure of the prosecution to prove
his complicity in the alleged crime.
In the instant petition, Zarraga claims that the
prosecution was not able to sufficiently establish
the corpus delictiand that the prosecution witnesses
presented conflicting testimonies on material points
sufficient to engender doubt as to his guilt.
The Solicitor General, on the other hand, maintains
that there was a legitimate buy-bust operation
resulting in the lawful arrest, prosecution and
conviction of Zarraga; that the prosecution has
sufficiently identified the corpus delicti; and that
Zarragas defense of frame-up cannot be given
credence. 12
The law presumes that an accused in a criminal
prosecution is innocent until the contrary is proved.
This basic constitutional principle is fleshed out by
procedural rules which place on the prosecution the
burden of proving that an accused is guilty of the
offense charged by proof beyond reasonable doubt.
Whether the degree of proof has been met is largely
left for the trial courts to determine. However, an
appeal throws the whole case open for review 13 such
that the Court may, and generally does, look into the
entire records if only to ensure that no fact of weight

After a thorough examination of the evidence

presented by both parties, we find that the
prosecution failed to establish the identity of the
prohibited drug which constitutes the corpus delicti.
In People v. Laxa,16 the policemen composing the
buy-bust team failed to mark the confiscated
marijuana immediately after the alleged apprehension
of the accused-appellant. One policeman even
admitted that he marked the seized items only after
seeing them for the first time in the police
headquarters. The Court held that the deviation from
the standard procedure in anti-narcotics operations
produces doubts as to the origins of the marijuana
and concluded that the prosecution failed to establish
the identity of the corpus delicti.
Similarly, in People v. Kimura, supra, the Narcom
operatives failed to place markings on the alleged
seized marijuana on the night the accused were
arrested and to observe the procedure in the seizure
and taking custody of the drug. Consequently, we
held that the prosecution failed to establish the
identity of the corpus delicti.
In this case, there are material inconsistencies in the
testimonies of Guevarra and Luna particularly with
regard to when and where the markings on
the shabu were made. Guevarra testified that he
handed the shabu to Manglo and that he put markings
on the substance. He said:
Q Earlier you said that the shabu was handed to
you. What did you do with the shabu?
A While we were at the area, I handed it to SPO1
William Manglo, sir.
Q Tell us, when this shabu was handed to you by
the accused in what container was it contained?
A When it was handed to me by Sonny Zarraga it
was wrapped in a plastic and white soft paper, sir.
Q If that shabu which was handed to you will be
shown to you, can you identify the same?
A Yes, sir.

Q Tell us, do you have any identifying marks?

A I put markings on the plastic and on the paper,
sir.

A SPO1 Guevarra handed to Manglo the shabu

afterwards SPO1 Manglo handed it to me.

Q What kind of marking did you place in there?

Q In effect, what you are saying is that you took the

money from Zarraga and then Manglo later handed to
you the shabu which Guevarra handed to him?

A My initial, sir.

A Yes, sir.

Q I am showing to you here a substance which is

wrapped in white tissue paper and wrapped likewise
in a plastic bag. Tell us what relation has this
substance to the shabu you said was handed to you
by the accused during the buy bust operation?

Q So after that, what did you do with this shabu

and this money which you recovered from Sonny
Zarraga?

A This is the same shabu that was handed to me, sir.

Q You said earlier that you place your initial in the
plastic. Which container you said you place your
initial?
A (witness pointing to the handwriting in black on
the plastic).

A After that, the shabu was wrapped in a tissue

then it was brought to Camp Vicente Lim. It was
handed to SPO2 Groyon in order that a request
can be made.
Q How about the money, what did you do with the
money?
A I handed it to SPO2 Groyon.

FISCAL

Q Will you kindly describe to us the appearance of

that Metamphetamine Hydrochloride. How was it
packaged?

We request, your honor that this plastic bag

containing the shabu be marked as Exhibit B and the
signature of the witness which he identified as
Exhibit B-1.

A The shabu was placed in a plastic wrapped in a

tissue and then we put a markings on it.

COURT

Q You said it was wrapped in a tissue in what

particular place was it wrapped? Where was it
wrapped?

Mark it.
A In the office, sir.
Q You also said you placed an identifying marks on
the white soft paper. Where in particular did you
place your marking.

Q And who wrapped it with the tissue?

A The two of us SPO1 Bonifacio Guevarra.

A (witness pointing to the handwriting in black

appearing on the tissue paper).
FISCAL
We request, your honor that it be marked as Exhibit
B-2.
COURT
Mark it. 17 (emphasis supplied.)

Q Now, you said there was a marking placed on

the tissue and likewise on the plastic cellophane
which contained the shabu. Who placed those
markings?
A SPO1 Guevarra, sir.
Q Now, if that shabu which was contained at the
plastic and wrapped in a tissue paper will be shown
to you can you identify the same?

Guevarras account leaves a gap as regards when

the shabu was marked, i.e., whether it was marked
before or after it was handed over to Manglo. He also
did not say specifically in what place he put the
identifying marks. Lunas testimony on this score
fills the gap and, more, it creates reasonable doubt as
to the identity of the corpus delicti. Luna said:

A Yes, sir.

Q How about Manglo. Did you come to know what

Manglo did after he alighted from the car?

A This is the one, sir. 18 (Emphasis supplied.)

Q I am showing to you these evidence as Exhibit B,

B-1 and B-2. Tell us what relation has that piece of
evidence of shabu which you said was handed to
Guevarra and which was handed to Manglo and
which Manglo handed to you?

Luna unequivocally declared that he and Guevarra

wrapped the shabu in tissue only at the office and
that the latter put markings on the tissue and plastic
wrapper, suggesting that Guevarra did not follow the
standard procedure of marking the confiscated items
immediately after the accused were apprehended.
Furthermore, nowhere in the records is there any
evidence that the buy-bust team prepared an
inventory of the seized drugs and had Zarraga and
Jose sign such inventory as required by Dangerous
Drugs Board Regulation No. 3, Series of 1979
amending Board Regulation No. 7 Series of 1974. 19
We also find bothersome the differing descriptions of
the shabu given by Guevarra and Luna. According to
Guevarra, the shabu was wrapped in plastic and
white soft paper when it was handed to him by
Zarraga. Luna, on the other hand, testified that he and
Guevarra wrapped the shabu in tissue at the office.
While "white soft paper" may also refer to "tissue"
as, in fact, the latter is defined as "a piece of soft,
absorbent paper, used as a disposable handkerchief,
as toilet paper, etc.," 20 the differing accounts of the
witnesses with regard to whether the shabu
was already wrapped in tissue at the time it was
handed by Zarraga to Guevarra, or wrapped in tissue
by Guevarra and Luna only at the office, engender
serious doubts as to the existence of the seized
prohibited drug. In fine, the prosecution has not
positively and convincingly shown that what was
submitted for laboratory examination and presented
in court was actually taken from Zarraga.
In view of these findings, we no longer deem it
necessary to discuss the other issues raised by
Zarraga, except to say that although his defense of
frame-up, like alibi, is generally viewed with
disfavor, we have consistently held that the
conviction of the accused must rest not on the
weakness of the defense but on the strength of the
prosecution. 21 Having failed to indubitably show the
identity of the shabu which was allegedly seized
from Zarraga, the prosecutions case should be
dismissed.
WHEREFORE, the Decision of the Court of Appeals
is REVERSED and SET ASIDE. Sonny Zarraga is
ACQUITTED of the crime charged against him and
is ordered immediately released unless he is being
held for some other valid or lawful cause. The
Director of Prisons is DIRECTED to inform this
Court of the action taken hereon within five (5) days
from receipt hereof.
Let the Director-General of the Philippine National
Police (PNP) be furnished a copy of herein decision
for the proper information and guidance of his police
operatives.
Costs de oficio.

SO ORDERED.

Private respondent, after presenting his evidence,

orally formally offered in evidence Exhibits "A" to
"M".
Among the exhibits offered by private respondent
were three (3) cassette tapes of alleged telephone
conversations between petitioner and unidentified
persons.
Petitioner submitted her Objection/Comment to
private respondent's oral offer of evidence on 9 June
1992; on the same day, the trial court admitted all of
private respondent's offered evidence.
A motion for reconsideration from petitioner was
denied on 23 June 1992.
A petition for certiorari was then filed by petitioner
in the Court of Appeals assailing the admission in
evidence of the aforementioned cassette tapes.
9.

G.R. No. 110662 August 4, 1994

TERESITA SALCEDO-ORTANEZ, petitioner,

vs.
COURT OF APPEALS, HON. ROMEO F.
ZAMORA, Presiding Judge, Br. 94, Regional
Trial Court of Quezon City and RAFAEL S.
ORTANEZ, respondents.
Oscar A. Inocentes & Associates Law Office for
petitioner.
Efren A. Santos for private respondent.

PADILLA, J.:
This is a petition for review under Rule 45 of the
Rules of Court which seeks to reverse the
decision * of respondent Court of Appeals in CA-G.
R. SP No. 28545 entitled "Teresita Salcedo-Ortanez
versus Hon. Romeo F. Zamora, Presiding Judge, Br.
94, Regional Trial Court of Quezon City and Rafael
S. Ortanez".
The relevant facts of the case are as follows:
On 2 May 1990, private respondent Rafael S.
Ortanez filed with the Regional Trial Court of
Quezon City a complaint for annulment of marriage
with damages against petitioner Teresita SalcedoOrtanez, on grounds of lack of marriage license
and/or psychological incapacity of the petitioner. The
complaint was docketed as Civil Case No. Q-905360 and raffled to Branch 94, RTC of Quezon City
presided over by respondent Judge Romeo F.
Zamora.

On 10 June 1993, the Court of Appeals rendered

judgment which is the subject of the present petition,
which in part reads:
It is much too obvious that the petition will have to
fail, for two basic reasons:
(1) Tape recordings are not inadmissible per se. They
and any other variant thereof can be admitted in
evidence for certain purposes, depending on how
they are presented and offered and on how the trial
judge utilizes them in the interest of truth and
fairness and the even handed administration of
justice.
(2) A petition for certiorari is notoriously
inappropriate to rectify a supposed error in admitting
evidence adduced during trial. The ruling on
admissibility is interlocutory; neither does it impinge
on jurisdiction. If it is erroneous, the ruling should be
questioned in the appeal from the judgment on the
merits and not through the special civil action
of certiorari. The error, assuming gratuitously that it
exists, cannot be anymore than an error of law,
properly
correctible
by appeal
and
not
by certiorari.Otherwise, we will have the sorry
spectacle of a case being subject of a
counterproductive "ping-pong" to and from the
appellate court as often as a trial court is perceived to
have made an error in any of its rulings with respect
to evidentiary matters in the course of trial. This we
cannot sanction.
WHEREFORE, the petition for certiorari being
devoid of merit, is hereby DISMISSED. 1
From this adverse judgment, petitioner filed the
present petition for review, stating:
Grounds for Allowance of the Petition

10. The decision of respondent [Court of Appeals]

has no basis in law nor previous decision of the
Supreme Court.
10.1 In affirming the questioned order of respondent
judge, the Court of Appeals has decided a question of
substance not theretofore determined by the Supreme
Court as the question of admissibility in evidence of
tape recordings has not, thus far, been addressed and
decided squarely by the Supreme Court.
11. In affirming the questioned order of respondent
judge, the Court of Appeals has likewise rendered a
decision in a way not in accord with law and with
applicable decisions of the Supreme Court.
11.1 Although the questioned order is interlocutory in
nature, the same can still be [the] subject of a petition
for certiorari. 2
The main issue to be resolved is whether or not the
remedy of certiorari under Rule 65 of the Rules of
Court was properly availed of by the petitioner in the
Court of Appeals.
The extraordinary writ of certiorari is generally not
available to challenge an interlocutory order of a trial
court. The proper remedy in such cases is an ordinary
appeal from an adverse judgment, incorporating in
said appeal the grounds for assailing the interlocutory
order.
However, where the assailed interlocutory order is
patently erroneous and the remedy of appeal would
not afford adequate and expeditious relief, the Court
may allow certiorari as a mode of redress. 3
In the present case, the trial court issued the assailed
order admitting all of the evidence offered by private
respondent, including tape recordings of telephone
conversations of petitioner with unidentified persons.
These tape recordings were made and obtained when
private respondent allowed his friends from the
military to wire tap his home telephone. 4
Rep. Act No. 4200 entitled "An Act to Prohibit and
Penalize Wire Tapping and Other Related Violations
of the Privacy of Communication, and for other
purposes" expressly makes such tape recordings
inadmissible in evidence. The relevant provisions of
Rep. Act No. 4200 are as follows:
Sec. 1. It shall be unlawful for any person, not being
authorized by all the parties to any private
communication or spoken word, to tap any wire or
cable, or by using any other device or arrangement,
to secretly overhear, intercept, or record such
communication or spoken word by using a device
commonly known as a dictaphone or dictagraph or
detectaphone or walkie-talkie or tape-recorder, or
however otherwise described. . . .

Sec. 4. Any communication or spoken word, or the

existence, contents, substance, purport, or meaning of
the same or any part thereof, or any information
therein contained, obtained or secured by any person
in violation of the preceding sections of this Act shall
not be admissible in evidence in any judicial, quasijudicial, legislative or administrative hearing or
investigation.
Clearly, respondents trial court and Court of Appeals
failed to consider the afore-quoted provisions of the
law in admitting in evidence the cassette tapes in
question. Absent a clear showing that both parties to
the telephone conversations allowed the recording of
the same, the inadmissibility of the subject tapes is
mandatory under Rep. Act No. 4200.
Additionally, it should be mentioned that the abovementioned Republic Act in Section 2 thereof imposes
a penalty of imprisonment of not less than six (6)
months and up to six (6) years for violation of said
Act. 5
We need not address the other arguments raised by
the parties, involving the applicability of American
jurisprudence, having arrived at the conclusion that
the subject cassette tapes are inadmissible in
evidence under Philippine law.
WHEREFORE, the decision of the Court of Appeals
in CA-G. R. SP No. 28545 is hereby SET ASIDE.
The subject cassette tapes are declared inadmissible
in evidence.
SO ORDERED.

appellants,
vs.
THE COURT OF APPEALS and GASPAR
VICENTE, respondents-appellees.
Ambrosio Padilla Law Office for petitionersappellants.
San Juan, Africa, Gonzales & San Agustin Law
Office for respondents-appellees.
FERNAN, J.:
This is an appeal by certiorari from the decision of
the then Court of Appeals in CA-G.R. No. 27800-R
entitled,"Gaspar Vicente, Plaintiff-Appellant, vs.
Genaro Goni, et. al., Defendants-Appellants" as well
as from the resolution denying petitioners' motion for
reconsideration.
The factual backdrop is as follows:
The three (3) haciendas known as San Sebastian,
Sarria and Dulce Nombre de Maria situated in the
Municipality of Bais, Negros Oriental, were
originally owned by the Compania General de
Tabacos de Filipinas [TABACALERA]. Sometime in
1949, the late Praxedes T. Villanueva, predecessor-ininterest
of
petitioners,
negotiated
with
TABACALERA for the purchase of said haciendas.
However, as he did not have sufficient funds to pay
the price, Villanueva with the consent of
TABACALERA, offered to sell Hacienda Sarria to
one Santiago Villegas, who was later substituted by
Joaquin Villegas. Allegedly because TABACALERA
did not agree to the transaction between Villanueva
and Villegas, without a guaranty private respondent
Gaspar Vicente stood as guarantor, for Villegas in
favor of TABACALERA. The guarantee was
embodied in a document denominated as "Escritura
de Traspaso de Cuenta." 1
Either because the amount realized from the
transaction between Villanueva and Villegas still fell
short of the purchase price of the three haciendas, or
in consideration of the guaranty undertaken by
private respondent Vicente, Villanueva contracted or
promised to sell to the latter fields nos. 3, 4 and 13 of
Hacienda Dulce Nombre de Maria for the sum of
P13,807.00. This agreement was reduced to writing
and signed by petitioner Genaro Goni as attorney-infact of Villanueva, thus:
11. G.R. No. L-27434 September 23, 1986
GENARO GOI, RUFINA P. vda. DE
VILLANUEVA, VIOLA P. VILLANUEVA,
OSCAR P. VILLANUEVA, MARINA P.
VILLANUEVA, VERNA P. VILLANUEVA,
PRAXEDES P. VILLANUEVA, JR., JOSE P.
VILLANUEVA, SAMUEL P. VILLANUEVA,
LOURDES P. VILLANUEVA, MILAGROS P.
VILLANUEVA DE ARRIETA, petitioners-

En consideracion a la garantia que Don Gaspar

Vicente assume con la Cia. Gral. de Tabacos de
Filipinas por el saldo de Don Santiago Villegas de
P43,539.75 asumido por Don Joaquin Villegas el que
Subscribe Praxedes T. Villanueva se compromete
ceder es venta a Don Gaspar Vicente los campos nos.
3, 4 y 13 del plano de porcelario de la Hacienda
Dulce Nombre de Maria, en compra projectada de la
Cia. Gral. de Tabacos de Filipinas. Estas campos

representan 6-90-35 hectares por valor de P13,807.00

que Don Gasper Vicente pagara directamente a
Praxedes T. Villanueva
Bais Central, Octubre 24, 1949.
Fdo. Praxedes T. Villanueva
Por: Fdo Genaro Goi Apoderado 2
Private respondent Vicente thereafter advised
TABACALERA to debit from his account the
amount of P13,807.00 as payment for the balance of
the purchase price. However, as only the amount of
P12,460.24 was actually needed to complete the
purchase price, only the latter amount was debited
from private respondent's account. The difference
was supposedly paid by private respondent to
Villanueva, but as no receipt evidencing such
payment was presented in court, this fact was
disputed by petitioners.
It is alleged by petitioners that subsequent to the
execution of the contract/promise to sell, Villanueva
was able to raise funds by selling a property in
Ayungon, Negros Oriental. He thus went to private
respondent Vicente for the purpose of rescinding the
contract/promise to sell However, as the amount of
P12,460.24 had already been debited from private
respondent's account, it was agreed that lots 4 and 13
of the Hacienda Dulce Nombre de Maria would
merely be leased to private respondent Vicente for a
period of five (5) years starting with crop-year 195051 at an annual rental of 15% of the gross income,
said rent to be deducted from the money advanced by
private respondent and any balance owing to
Villanueva would be delivered by Vicente together
with the lots at the end of the stipulated period of
lease.
On December 10, 1949, TABACALERA executed a
formal deed of sale covering the three haciendas in
favor of Villanueva. Fields Nos. 3, 4 and 13 of the
Hacienda Dulce Nombre de Maria were thereafter
registered in the name of Villanueva under TCT No.
T-4780 of the Register of Deeds of Negros Oriental.
The fields were likewise mortgaged by Villanueva to
the Rehabilitation Finance Corporation (RFC), later
transferred to the Philippine National Bank on
December 16, 1955, for a total indebtedness of
P334,400.00. 3
Meanwhile, Fields nos. 4 and 13 were delivered to
private respondent Vicente after the 1949-1950
milling season in January and February, 1950.
On June 17, 1950, Villanueva executed a
"Documento de la Venta Definitive" in favor of
Joaquin Villegas, covering Lot No. 314 of the
Cadastral Survey of Bais with an area of 468,627
square meters, more or less. (Hacienda Sarria). A
supplemental instrument was later executed by

Villanueva in favor of Villegas to include in the sale

of June 17, 1950 the sugar quota of the land.
On November 12, 1951, Villanueva died. Intestate
proceedings were instituted on November 24, 1951
before the then Court of First Instance of Negros
Oriental, docketed as Special Case No. 777. Among
the properties included in the inventory submitted to
the court were fields nos. 3, 4 and 13 of Hacienda
Dulce Nombre de Maria. Field no. 13 with an area of
1 hectare, 44 ares and 95 centares was listed as Lot
no. 723 of the inventory while fields nos. 3 and 4,
with areas of 3 hectares, 75 ares and 60 centares, and
1 hectare, 69 ares and 80 centares, respectively, were
included in Lot no. 257 of the inventory.
On October 7, 1954, the day before the intestate
proceedings were ordered closed and the estate of the
late Praxedes Villanueva delivered to his heirs,
private respondent Vicente instituted an action for
recovery of property and damages before the then
Court of First Instance of Negros Oriental against
petitioner Goi in his capacity as administrator of the
intestate estate of Praxedes Villanueva. In his
complaint docketed as Civil Case No. 2990, private
respondent Vicente sought to recover field no. 3 of
the Hacienda Dulce Nombre de Maria, basing his
entitlement thereto on the contract/promise to sell
executed by the late Praxedes Villanueva in his favor
on October 24, 1949. He likewise prayed by way of
attorney's fees and other costs the sum of P2,000.00
and for such other further relief which the court may
deem just and equitable in the premises. 4
On October 25, 1954, petitioner Goni as defendant in
Civil Case No. 2990, filed an answer with
counterclaim for accounting of the produce of fields
nos. 4 and 13, as well as the surrerder thereof on June
20, 1955, the end of the fifth crop-year, plus moral
damages in the sum of P30,000.00 and P3,000.00 as
attorney's fees. After an answer to the counter-claim
had been filed, private respondent Vicente amended
his complaint on September 1, 1955, to include a
prayer for damages representing the produce of field
no. 3 from 1949-50 until delivery thereof to him. An
answer with counterclaim to the amended complaint
was duly filed, and on April 25, 1956, private
respondent Vicente amended his complaint anew to
include as parties-defendants the heirs of the late
Praxedes Villanueva.
On July 13, 1957, the parties entered into a
stipulation of facts, agreeing, among others, on the
costs of production and produce of the three fields in
question. The case thereafter proceeded to trial.
Plaintiff presented two (2) witnesses: then partyplaintiff Gaspar Vicente, himself, who over the
objection of therein defendants testified on facts
occurring before the death of Praxedes Villanueva,
and Epifanio Equio a clerk of TABACALERA
Agency in the Bais Sugar Central. Defendants

presented Genaro Goni, who testified on the alleged

verbal lease agreement.
On December 18, 1959, the trial court rendered a
decision ordering therein defendants-heirs to deliver
to Gaspar Vicente field no 3, to execute a formal
deed of sale covering fields nos. 3, 4 and 13 in favor
of Vicente, to pay the latter actual or compensatory
damages in the amount of P 81,204.48, representing
15% of the total gross income of field no. 3 for cropyears 1950-51 to 1958-59, and such other amounts as
may be due from said field for the crop years
subsequent to crop-year 1958-59, until the field is
delivered to Vicente, and to pay the sum of P2,000.00
as attorney's fees plus costs. Therein defendant Goi
was relieved of any civil liability for damages, either
personally or as administrator of the estate. 5
Both parties appealed the decision to the then Court
of Appeals; the plaintiff from the portion awarding
damages on a claim that he was entitled to more, and
defendants, from the entire decision.
On December 15, 1966, the Court of Appeals
promulgated its decision, affirming that of the lower
court, with the modification that the amount of
damages to be paid by defendant-heirs to the plaintiff
should be the total net income from field no. 3 from
the crop year 1950-51 until said field is finally
delivered to the plaintiff plus interest thereon at the
legal rate per annum. 6
Petitioners filed a motion for reconsideration, but
were denied the relief sought in a resolution dated
February 9, 1967. Hence, the present appeal by
certiorari whereby petitioners raise the following
questions of law:
MAY RESPONDENT
GASPAR
VICENTE
TESTIFY ON MATTERS OF FACT OCCURRING
BEFORE THE DEATH OF PRAXEDES T.
VILLANUEVA, WHICH CONSTITUTES A
CLAIM OR DEMAND UPON HIS ESTATE. IN
VIOLATION OF RULE 123, SEC, 26, PAR. (C),
NOW RULE 130, SEC. 20 PAR. (A)?
MAY NOT A WRITTEN PROMISE TO SELL
DATED OCTOBER 24,1949 BE NOVATED INTO
A VERBAL AGREEMENT OF LEASE DURING
THE LIFETIME OF THE PROMISSOR, WHOSE
DEATH OCCURRED ON NOVEMBER 12, 1951,
BY
FACTS
AND
CIRCUMSTANCES
SUBSTANTIATED BY COMPETENT ORAL
EVIDENCE IN THIS CASE?
SHOULD THE PROMISEE IN A PROMISE TO
SELL, WHO PAID P12,460.24 WHICH WAS TO
BE ACCOUNTED AND TO BE CREDITED AS
RENTALS AFTER FIVE (5) YEARS OF LEASE,
WHO IN HIS ORIGINAL COMPLAINT DID NOT
ALLEGE NOR PROVE DAMAGES, EXCEPT THE
SUM OF P2,000.00 AS ATTORNEY'S FEES,

RECEIVE A JUDGMENT FOR DAMAGES IN

THE AMOUNT OF P74,056.35 WHICH CONSISTS
OF P37,121.26 PLUS LEGAL INTEREST FOR
THE CROP YEARS 1950-51 TO 1958-59 AND FOR
P3,624.18 TO P4,374.78 FOR EVERY CROP YEAR
SUBSEQUENT
TO
1958-59
PLUS
INTEREST? 7
We find that neither the trial nor appellate court erred
in ruling for the admissibility in evidence of private
respondent Vicente's testimony. Under ordinary
circumstances, private respondent Vicente 8 would be
disqualified by reason of interest from testifying as to
any matter of fact occurring before the death of
Praxedes T. Villanueva, such disqualification being
anchored on Section 20(a) of Rule 130, commonly
known as the Survivorship Disqualification Rule or
Dead Man Statute, which provides as follows:
Section 20. Disqualification by reason of interest or
relationship.-The following persons cannot testify as
to matters in which they are interested, directly or
indirectly, as herein enumerated:
(a) Parties or assignors of parties to a case, or persons
in whose behalf a case is prosecuted, against an
executor or administrator or other representative of a
deceased person, or against a person of unsound
mind, upon a claim or demand against the estate of
such deceased person or against such person of
unsound mind, cannot testify as to any matter of fact
occurring before the death of such deceased person or
before such person became of unsound mind.
The object and purpose of the rule is to guard against
the temptation to give false testimony in regard to the
transaction in question on the part of the surviving
party and further to put the two parties to a suit upon
terms of equality in regard to the opportunity of
giving testimony. 9 It is designed to close the lips of
the party plaintiff when death has closed the lips of
the party defendant, in order to remove from the
surviving party the temptation to falsehood and the
possibility of fictitious claims against the deceased. 10
The case at bar, although instituted against the heirs
of Praxedes Villanueva after the estate of the latter
had been distributed to them, remains within the
ambit of the protection. The reason is that the
defendants-heirs are properly the "representatives" of
the deceased, not only because they succeeded to the
decedent's right by descent or operation of law, but
more importantly because they are so placed in
litigation that they are called on to defend which they
have obtained from the deceased and make the
defense which the deceased might have made if
living, or to establish a claim which deceased might
have been interested to establish, if living. 11
Such protection, however, was effectively waived
when counsel for petitioners cross-examined private
respondent Vicente. "A waiver occurs when plaintiff's

deposition is taken by the representative of the estate

or when counsel for the representative crossexamined the plaintiff as to matters occurring during
deceased's lifetime. 12 It must further be observed that
petitioners presented a counterclaim against private
respondent Vicente. When Vicente thus took the
witness stand, it was in a dual capacity as plaintiff in
the action for recovery of property and as defendant
in the counterclaim for accounting and surrender of
fields nos. 4 and 13. Evidently, as defendant in the
counterclaim, he was not disqualified from testifying
as to matters of fact occurring before the death of
Praxedes Villanueva, said action not having been
brought against, but by the estate or representatives
of the estate/deceased person.
Likewise, under a great majority of statutes, the
adverse party is competent to testify to transactions
or communications with the deceased or incompetent
person which were made with an agent of such
person in cases in which the agent is still alive and
competent to testify. But the testimony of the adverse
party must be confined to those transactions or
communications which were had with the
agent. 13 The contract/promise to sell under
consideration was signed by petitioner Goi as
attorney-in-fact (apoderado) of Praxedes Villanueva.
He was privy to the circumstances surrounding the
execution of such contract and therefore could either
confirm or deny any allegations made by private
respondent Vicente with respect to said contract. The
inequality or injustice sought to be avoided by
Section 20(a) of Rule 130, where one of the parties
no longer has the opportunity to either confirm or
rebut the testimony of the other because death has
permanently sealed the former's lips, does not
actually exist in the case at bar, for the reason that
petitioner Goi could and did not negate the binding
effect of the contract/promise to sell. Thus, while
admitting the existence of the said contract/promise
to sell, petitioner Goi testified that the same was
subsequently novated into a verbal contract of lease
over fields nos. 4 and 13 of the Hacienda Dulce
Nombre de Maria.
Novation takes place when the object or principal
condition of an obligation is changed or altered. 14 In
order, however, that an obligation may be
extinguished by another which substitutes the same,
it is imperative that it be so declared in unequivocal
terms, or that the old and the new obligations be on
every
point
incompatible
with
each
15
other. "Novation is never presumed. It must be
established that the old and the new contracts are
incompatible in all points, or that the will to novate
appear by express agreement of the parties or in acts
of equivalent import. 16
The novation of the written contract/promise to sell
into a verbal agreement of lease was clearly and
convincingly proven not only by the testimony of
petitioner Goi, but likewise by the acts and conduct

of the parties subsequent to the execution of the

contract/promise to sell. Thus, after the milling
season of crop year 1949-50, only fields nos. 4 and
13 were delivered to private respondent Vicente.
Fields nos. 3, 4 and 13 were subsequently registered
in Villanueva's name and mortgaged with the RFC.
Villanueva likewise executed a deed of sale covering
Hacienda Sarria in favor of Joaquin Villegas. All
these were known to private respondent Vicente, yet
he did not take any steps toward asserting and/or
protecting his claim over fields nos. 3, 4 and 13 either
by demanding during the lifetime of Villanueva that
the latter execute a similar document in his favor, or
causing notice of his adverse claim to be annotated
on the certificate of title of said lots. If it were true
that he made demands on Villanueva for the
surrender of field no. 3 as well as the execution of the
corresponding deed of sale, he should have, upon
refusal of the latter to do so, immediately or within a
reasonable time thereafter, instituted an action for
recovery, or as previously observed, caused his
adverse claim to be annotated on the certificate of
title. Considering that field no. 3, containing an area
of three (3) hectares, 75 ares and 60 centares, is the
biggest among the three lots, an ordinary prudent
man would have taken these steps if he honestly
believed he had any right thereto. Yet, private
respondent Vicente did neither. In fact such inaction
persisted even during the pendency of the intestate
proceedings wherein he could have readily
intervened to seek exclusion of fields nos. 3, 4 and 13
from the inventory of properties of the late Praxedes
Villanueva.
The reason given by private respondent Vicente that
field no. 3 was not delivered to him together with
fields nos. 4 and 13 because there were small sugar
cane growing on said field at that time belonging to
TABACALERA, might be taken as a plausible
explanation why he could not take immediate
possession of lot no. 3, but it certainly could not
explain why it took him four years before instituting
an action in court, and very conveniently, as
petitioners noted, after Villanueva had died and at the
time when the verbal contract of lease was about to
expire.
Both the trial and appellate courts chose to believe in
the contract/promise to sell rather than the lease
agreement, simply because the former had been
reduced to writing, while the latter was merely
verbal. It must be observed, though, that the
contract/promise to sell was signed by petitioner
Goi as attorney-in-fact of the late Praxedes
Villanueva, an indication, to our mind, that final
arrangements were made by petitioner Goi in the
absence of Villanueva. It was therefore natural for
private respondent Vicente to have demanded that the
agreement be in writing to erase any doubt of its
binding effect upon Villanueva. On the other hand,
the verbal lease agreement was negotiated by and
between Villanueva and private respondent Vicente

themselves. Being close friends and relatives 17 it can

be safely assumed that they did not find it necessary
to reduce the same into writing.
In rejecting petitioners' contention respecting the
verbal lease agreement, the appellate court put much
weight on the failure of petitioners to demand an
accounting of the produce of fields nos. 4 and 13
from 1950 to 1954, when the action for recovery of
property was filed. Such failure was satisfactorily
explained by petitioners in their motion for
reconsideration filed before the then Court of
Appeals, in this manner:
... Mr. Genaro Goni is also a farmer by profession
and that there was no need for him to demand a
yearly accounting of the total production because the
verbal lease agreement was for a term of 5 years. The
defendant Mr. Genaro Goni as a sugar planter has
already full knowledge as to the annual income of
said lots nos. 4 and 13, and since there was the
amount of P12,460.25 to be liquidated, said
defendant never deemed it wise to demand such a
yearly accounting. It was only after or before the
expiration of the 5 year lease that said defendant
demanded the accounting from the herein plaintiff
regarding the production of the 2 lots that were then
leased to him.
It is the custom among the sugar planters in this
locality that the Lessee usually demands an advance
amount to cover the rental for the period of the lease,
and the demand of an accounting will be only made
after the expiration of the lease period. It was
adduced during the trial that the amount of
P12,460.75 was considered as an advance rental of
the 2 lots which was leased to the Plaintiff, lots nos. 4
and 13; so we humbly believe that there was no
necessity on the part of defendant Mr. Genaro Goi
to make a yearly demand for an accounting for the
total production of 2 parcels leased to the plaintiff. 18
Petitioners, having clearly and sufficiently shown
that the contract/promise to sell was subsequently
novated into a verbal lease agreement, it follows that
they are entitled to a favorable decision on their
counterclaim. Discussion of the third issue raised
therefore becomes unnecessary.
WHEREFORE, the decision appealed from is hereby
reversed. The judicial administrator of the estate of
private respondent Gaspar Vicente and/or his
successors-in-interest are hereby ordered to: a)
surrender possession of fields nos. 4 and 13 of the
Hacienda Dulce Nombre de Maria to petitioners; b)
render an accounting of the produce of said fields for
the period beginning crop-year 1950-51 until
complete possession thereof shall have been
delivered to petitioners; and c) to pay the
corresponding annual rent for the said fields in an
amount equivalent to 15% of the gross produce of
said fields, for the periods beginning crop-year 1950-

51 until said fields shall have been surrendered to

petitioners, deducting from the amount due
petitioners the sum of P12,460.24 advanced by
private respondent Gaspar Vicente.
SO ORDERED.

12. G.R. No. 97921 September 8, 1993

PEOPLE OF THE PHILIPPINES, plaintiffappellee,
vs.
ROLANDO DOMINGO y MELEBO and DANTE
TAMBALO y SAPUNGGAY, accused-appellants.
The Solicitor General for plaintiff-appellee.
Public Attorney's Office for accused-appellant.

penalized by Article 335 of the Revised Penal Code,

and hereby metes on each of them the penalty
of RECLUSION PERPETUA, with all the accessory
penalties of the law, and hereby condemns them to
pay, jointly and severally, to the Private Complainant
Rosemarie Tulisana the amount of P20,000.00 as and
by way of moral damages, and to pay the costs.
The Accused are hereby credited (with) the full
period of their detention during the pendency of this
case provided that they agreed in writing to abide by
and comply strictly with the rules and regulations of
the City Jail of Manila.
SO ORDERED. 3

REGALADO, J.:
For stifling the voice of conscience and heeding
instead the call of diablerie, accused-appellants
Rolando Domingo y Melebo and Dante Tambalo y
Sapunggay now face the grim prospect of spending
the rest of their lives behind prison bars, in expiation
of a grievous wrong committed for a momentary
satisfaction of lust.
On October 6, 1989, a complaint signed by
Rosemarie Tulisana was filed with the Regional Trial
Court, National Capital Judicial Region, Branch
XLIX, charging herein appellants with the crime of
rape allegedly committed in this wise:
That on or about October 1, 1989, in the City of
Manila, Philippines, the said accused, conspiring and
confederating together and mutually helping each
other, did then and there wilfully, unlawfully and
feloniously with lewd designs, by means of threats,
force and intimidation have carnal knowledge with
the undersigned complainant, a minor, 15 years of
age, by then and there entering the ladies' quarter(s)
where the undersigned complainant (was) sleeping
alone, kissing and mashing her breasts, threatening to
box her should she resist, removing her pajama and
panty and inserted his penis in(to) her private parts,
then suc(c)eeded in having carnal knowledge of her,
against her will and consent while accused DANTE
TAMBALO Y SAPUNGGAY stood guard outside
the door of the ladies' quarter(s).
Contrary to law. 1
Upon arraignment, both accused, assisted by
counsel de oficio, entered pleas denying their
guilt 2 but, after trial on the merits, the court a
quo handed down its decision on May 9, 1990
finding them guilty as charged and disposing as
follows:
WHEREFORE, judgment is hereby rendered finding
the Accused ROLANDO DOMINGO and DANTE
TAMBALO guilty beyond reasonable doubt, as
Principals, (of) the crime of "Rape" defined in and

Having thus failed to convince the court below of

their professed innocence, appellants availed of their
constitutional right to appeal and now contend before
us that the lower court erred (l) in finding that the
sexual intercourse between appellant Rolando
Domingo and complainant Rosemarie Tulisana was
not voluntary on the part of the latter; (2) in giving
full faith and credence to the testimony of the
complainant which is tainted with contradictions and
suspicion; and (3) in finding that the prosecution was
able to present the required quantum of proof to
support a judgment of conviction. 4
As is to be expected in criminal cases, especially in
the crime of rape where the contingencies hinge on
the credibility of the participants, the presentation of
the prosecution is generally in sharp contrast with the
submission of the defense. It is best, therefore, to
reproduce hereunder the version of the People vis-avis that of accused-appellants as now presented to us,
one may assume, after much rationalization or
contrivance.
The brief filed by the Solicitor General has concisely
synthesized the facts of the case for the appellee, with
documentation based on the transcript of
stenographic notes of the trial and which we have
reviewed, to wit:
6. Rosemarie Tulisana was a 15-year old provincial
lass from Surigao del Norte, who was working in a
ladies bag factory in a three-storey building at 1438
Metrica Street, Sampaloc, Manila. The factory had
eighteen employees, including Tulisana and the two
appellants. Appellants were both 21 years of age and
both come from the town of Gerona, Tarlac. (TSN,
January 3, 1990, at 9-10; TSN, February 28, 1990, at
7; TSN, March 26, 1990, at 3.)
7. All the workers stayed in a dormitory within the
factory premises. Some slept in the kitchen located
on the ground floor, others on the second and third
floors. Tulisana shared a room in the second floor
with two other female employees named Mely and
Merly, sleeping either on the floor on a wooden table
inside the room. Some male workers slept in another

room on the second floor which doubled as work

spaces during the daytime. (TSN, January 3, 1990, at
13-14; TSN, March 26, 1990, at 21.)
8. On October 1, 1989, at around 8:00 o'clock in the
evening, only a few workers were inside the factory
building as it was a Sunday. Tulisana was eating
supper in the kitchen. Appellants were likewise also
in the kitchen, drinking beer with two other male
companions. (TSN, January 3, 1990 at 35-36; TSN,
March 26, 1990, at 20, 23.)

going to do with her. Appellant Domingo replied with

a warning not to make a sound. The threats
succeeded in scaring and silencing Tulisana. (TSN,
January 3, 1990, at 20; TSN, February 7, 1990, at
20.)
15. Appellant Domingo tossed away Tulisana's
blanket, and pillow, and then pulled off her pajama
pants and panty. Tulisana made it clear to appellant
Domingo that she wanted him to stop, pleading.
"Huwag, Rolando."

9. Appellant Domingo tried to offer some beer to

Tulisana, but the latter turned it down. However,
Tulisana exchanged pleasantries with appellants and
had no reason not to converse with them as she
considered them as her older brothers. (TSN, January
3, 1990, at 36-37; TSN, March 26, 1990, at 25.)
10. Tulisana left the kitchen and went up to her room
to sleep. On her way up she met Mely who was going
downstairs to wash some laundry and who asked
Tulisana not to lock the door so that she could enter
without disturbing the latter. Tulisana agreed. Inside
her room, Tulisana was alone because Merlie, her
other roommate, had left the previous night and had
not yet returned. Tulisana changed into a sando and
pajama pants. Although she wore no brassiere, she
had her panty on. Tulisana did not lock the door of
the room (TSN, January 3, 1990, at 5; TSN, February
7, 1990, at 2, 3-4.)
11. At around 8:30 o'clock, having changed her
clothing, Tulisana spread a carton on top of the table,
got her blanket and pillow, and lay down on the table
to sleep. She left the light in the room on.
12. At around 9:00 o'clock, Tulisana suddenly woke
up, sensing the presence of other people inside the
room. She thought that they were just getting their
pillows and blankets that were stored inside the
room. (TSN, March 26, 1990, at 24-25.)
13. All of a sudden, Tulisana felt someone holding
her forehead and holding her right breast. Opening
her eyes, she saw that it was appellant Tambalo
holding her forehead and appellant Domingo, who
was on her left side, pressing her breast. Tulisana
struggled to get up while telling appellants to stop.
However, Domingo threatened to strike her with his
fist if she shouted. Appellant Domingo ordered his
companion to go outside and guard the door. The
other appellant complied and posted himself outside
the room, content with peeping into the room through
a hole in the door and enjoying what he saw. (TSN,
January 3, 1990, at 18-2O; TSN, February 7, 1990, at
7-9, 12; TSN, February 14, 1990, at 15-17; TSN,
March 26, 1990, at 22-28.)
14. Tulisana tried to ward off appellant Domingo
with her left hand and run away, but he held her and
pinned her down. Tulisana asked him what he was

(TSN, January 3, 1990, at 20-22; TSN, February 7,

1990, at 10.)
16. Determined to satisfy his lust, appellant Domingo
ignored the girl's entreaties, pulled down his pants
and underwear and went on top of Tulisana. He again
ordered her not to shout, threatening to box her if she
did. To drive home the point, appellant Domingo
shoved his fist in front of her face as if to strike her.
Fearing for her safety, Tulisana kept quiet. (TSN,
February 7, 1990, at 13-16; March 26, 1990, at 29.)
17. Appellant Domingo then began to kiss Tulisana
and mash her breasts. He ordered the girl to hold his
penis and insert it into her vagina. Shocked into
submission, Tulisana tried to comply, but was unable
to insert appellant Domingo's penis. Angered,
Domingo said that he would do it himself. (TSN,
February 7, 1990, at 16-18.)
18. Tulisana tried to avoid penetration by squirming
her body, but appellant Domingo again ordered her
not to move. Thereafter, he succeeded in entering the
girl and consummating the rape. Tulisana cried out in
pain (TSN, February 7, 1990, at 19-21, 24.)
19. Having satisfied himself, appellant Domingo got
off and dressed up. Before leaving, appellant
Domingo threatened to kill her if she told anyone
about what he had done to her. When appellant
Domingo opened the door to leave, Tulisana saw
appellant Tambalo outside. The two appellants left at
the same time. (TSN, February 7, 1990, at 24, 27.)
20. Tulisana saw blood on her vagina and on the
carton mat, which she wiped away, afraid that Mely
might see it. She tore up the carton the next day and
threw it into a trash can. At around 9:45 o'clock,
Mely entered the room. Unable to sleep immediately
or tell her roommate about the rape, the young girl
instead cried silently. (TSN, January 3, 1990, at 24;
[TSN,] February 7, 1990 at 26, 29, 30; TSN,
February 14, 1990, at 4- 5.)
21. The next day, October 2, 1989, Tulisana and the
two appellants reported for work as usual. She
avoided appellants and did not talk to them.(TSN,
February 14, 1990, at 6-7.)

22. On October 3, 1989, Tulisana could no longer

bear to keep silent. That morning, she told her design
manager about the incident. The latter instructed her
to report it to her older sister. Tulisana and her sister
went to the police and filed a complaint. That night,
the police arrested both appellants. (TSN, January 3,
1990, at 26-27; TSN, February 14, 1989, at 7-10.)
23. On October 4, 1989, Tulisana was examined by a
medico-legal physician of the Western Police
District, who made the following findings:
1. Breasts are fully developed, hemispherical in
shape and with small brownish nipples and areolas;
2. Abdomen is flat, firm and without striae of
pregnancy;
3. Hymen is relatively thin, circular in shape and
with a deep old healed laceration at 5 o'clock position
almost extending to the base and with rounding of
edges;
4. Intoitus vagina admits two (2) examining fingers
with relative ease, while vault is almost dry;
5. Vaginal wall is firm and with less prominent
rugosities;
6. Last menstrual period September 28, 1989 for 3
days.
O P I N I O N:
The above finding is consistent with a girl who is no
longer a virgin.
Aside from the foregoing findings, no other physical
injuries were noted. 5
On the other hand, appellants offer a totally different
account, banking on the usual defenses in rape cases,
that is, denial and the "Sweetheart theory," thus:
Rolando Domingo, 21 years old, single and a factory
worker at 1438 Metrica Street, Sampaloc, Manila,
declared on direct examination that the complainant
Rosemarie Tulisana became his girlfriend on
September 20, 1989. On October 1, 1989, at about
7:00 o'clock in the evening, he, together with
Orlando Ombollo, the accused Dante Tambalo, Imbot
and the complainant were drinking E.S.Q. at the first
floor of the factory. They were sitting on top the
table. Seated next to him was the complainant. The
drinking session lasted for two (2) hours, after which
he whispered to the complainant to go ahead upstairs.
She agreed and said she would be waiting for him.
She left and proceeded to the room at the second
floor of the building. After one (1) minute, he
followed her and went inside her room. (TSN, pp. 712)

He kissed her forehead down to her lips, her face and

breasts by lifting her sando. He removed her sando.
Her turn came and she kissed him. When they felt the
warmth of their bodies and passions were running
high, he removed her jogging pants, panty and sando.
For his part, he took off his shirt and pants. Then, he
went on top of the complainant who was lying on the
table. She began to hold his private organ, placed it in
front of her private part and finally inserted it. She
felt happy and for him the feeling was mutual.
Unfortunately, before reaching the clima(c)tic stage,
somebody opened and peeped at the door. (Ibid., p
13-16)
He noticed that it was the accused Dante Tambalo
who opened the door but closed it again. A mixed
reaction of fear and shame engulfed his whole being.
He and the complainant stood up and put on their
clothes. He went out of the room and went to talk to
Dante. He instructed him not to tell anybody about
what he saw. (Ibid., pp. 17-18)
The following day, the private complainant called for
him inside her room at the second floor. She
quarrelled with him, suspecting that he spread the
rumors about what happened to them. He kept silent
and had to be patient, knowing that he even told his
companions that nothing happened. She further
quarrelled with him at the factory until such time
when she had him arrested by the police on October
3, 1989. (Ibid., pp. 18-19)
Continuing his direct testimony, he belied the
testimony of the complainant that she felt pain when
his private organ was inserted into her private part. In
fact, her private part was already loose. Likewise, he
belied her testimony on the blood oozing from her
private part as there was none. (Ibid., pp. 20-21)
The accused Dante Tambalo, 21 years old, married, a
worker of Saint Jude factory for ladies' bags located
at No. 1438 Metrica Street, Sampaloc, Manila
testified that on October 1, 1989 at about, 7 o'clock in
the evening, he, together with his co-workers,
namely: his co-accused Rolando Domingo, the
private complainant Rosemarie Tulisana, Imbot and
Olan, had a drinking spree at the ground floor of the
said factory. They were drinking E.S.Q. and after two
(20) hours they stopped. (TSN, pp. 2-5, March 26,
1990)
After their drinking session, the complainant went
upstairs after the accused Rolando Domingo
whispered something to her. Roland followed her.
Two (2) minutes elapsed and he (Dante) also went
upstairs to sleep, but he first proceeded to get his
blanket and pillow at the room of the complainant on
the second floor where they usually placed their
blankets and pillows. (Ibid., p. 6)
As he and Rolando did not have a permanent place to
sleep, the sister of the latter brought the blanket and

the pillow inside the room of complainant. However,

he failed to get these items because when he pushed
the door of said room, he felt ashamed and left when
he saw Rolando on top of the complainant who were
both naked. He proceeded to the other room to sleep.
(Ibid., p. 9)
After about two (2) minutes when he was already
lying down, Rolando arrived and told him not to tell
anybody about what he saw. He acceded. (Ibid., p. 9)
In the morning of October 3, 1989, the complainant,
confronted him at the second floor of the factory
where they were working. The complainant got mad
at him considering that she suspected that he and
Rolando spread the rumor about what happened. He
reacted and said he had nothing to do with the rumor
and perhaps somebody was responsible for it. As
anger turned into hatred, the complainant on that day
caused his and Rolando's arrest by the police of
Police Station No. 4 in Sampaloc, Manila. (Ibid., pp.
10-11).
Subsequently, they were brought to the Headquarters
of the Western Police District where they were
investigated. As to his having been implicated in the
alleged crime of rape, he (Dante) told the police that
he did not know anything about the case. On the
other hand, Rolando said to the police that what
happened to him and the complainant was a
voluntary act. 6

secluded places away from prying eyes, the crime

usually commences solely upon the word of the
offended woman herself, and conviction invariably
turns only upon her credibility as the People's single
witness of the actual occurrence. 9
Complainant, testifying in a categorical, spontaneous,
candid and straightforward manner as may be
concluded from the findings of the trial
court, 10 was able to establish the elements of force
and intimidation employed upon her by the
appellants in this manner:
FISCAL FORMOSO:
Please explain to us how that rape happened?
WITNESS:

I was caught by surprise when suddenly somebody

held my forehead and held me (o)n the breast, sir.
FISCAL FORMOSO:
Was it on the left or right breast?
WITNESS:
Right breast, sir.

Article 335 of the Revised Penal Code provides that

one of the ways by which rape can be committed is
by having carnal knowledge of a woman by using
force or intimidation, the same mode allegedly
employed by appellants in the case at bar. Since
appellant Domingo admits having had carnal
knowledge of complainant, only the elements of
force and/or intimidation therefore need to be
proved. 7

FISCAL FORMOSO:

In this connection, it bears mention that it is the

policy of the Court, founded on reason and
experience, to sustain the factual findings of the trial
court on the rational assumption that the latter is in a
better position to assess the evidence before it,
particularly the testimonies of the witnesses who
reveal much of themselves by their deportment on
the stand. The exception to the rule is where such
findings are clearly arbitrary or erroneous as when
they are tainted with bias or hostility or are so
lacking in basis as to suggest that they were reached
without the careful study and perceptiveness that
should characterize a judicial decision. We do not
find that exception to be attendant in this case. 8

And who held your right breast?

The trial court arrived at a judgment of conviction by

relying on the testimony of complainant Rosemarie
Tulisana in keeping with settled jurisprudence that
since rape is essentially an offense of secrecy, not
generally attempted except in dark or deserted and

Yes, sir.

Who held your forehead, if you know?

WITNESS:
Dante, sir.
FISCAL FORMOSO:

WITNESS:
Rolando, sir.
xxx xxx xxx
FISCAL FORMOSO:
Did you hear any sound coming from them while
holding your right breast and your forehead?
WITNESS:

FISCAL FORMOSO:
What were those?

WITNESS:

FISCAL FORMOSO:

Rolando said, "huwag kang sumigaw".

What was the first thing that Rolando did after

removing your (p)ajama and your panty?

FISCAL FORMOSO:
WITNESS:
After that what happened?
Pinatungan niya po ako.
WITNESS:
xxx xxx xxx
He removed my (p)ajama, sir.
FISCAL FORMOSO:
FISCAL FORMOSO:
What else did he tell you?

After placing himself on top of you, what did he do

next?

WITNESS:

WITNESS:

He told me, "kapag sumigaw ka, susuntukin kita."

He did like this, sir.

xxx xxx xxx

FISCAL FORMOSO:
When Rolando was removing your (p)ajama, where
was Dante at that time?

INTERPRETER:
Witness is demonstrating by raising (her) left hand
giving the direction by squeezing (her) hand up and
down.
FISCAL FORMOSO:

WITNESS:
He was already outside because he was ordered by
Rolando to do so, sir.

Did you notice where were the hands of Rolando at

the time he laid on top of you?
WITNESS:

FISCAL FORMOSO:
He pressed his hands into my forearms, sir.
What were the words uttered by Rolando to Dante?
xxx xxx xxx
WITNESS:
COURT:
Rolando said, "kausa, doon ka muna sa labas
maghintay ka."

When Rolando was lying on top of you moving up

and down, did you hear if he uttered anything?

FISCAL FORMOSO:
WITNESS:
Did Dante obey the words of Rolando?
Yes, he was threatening me by saying, "susuntokin
kita kapag sumigaw ka".

WITNESS:

xxx xxx xxx

Yes, sir.
FISCAL FORMOSO:

FISCAL FORMOSO:

Now, after Dante went out of the room, what did

Rolando do?

When he went out did you hear him if he uttered

anything?

WITNESS:

WITNESS:

He removed my (p)ajama together with my panty,

and then he told me not to shout because by doing so
(sic) he would kill me, sir.

Yes, he told me, "hu(w)ag akong magsusumbong

kahit kanino, at kapag malaman ko papatayin kita." 11

xxx xxx xxx

Appellants argue that the threat of being boxed is not

sufficient reason for a woman to yield her honor and
chastity to a man. 12 Suffice it to say that the working

of the mind when placed under, such emotional stress

is unpredictable. In this given situation, some may
shout, some may faint, and some may be shocked
into insensibility. 13 To complainant's mind at that
point in time, appellant Domingo was determined to
do whatever he intended to do. In fact, to drive home
his point, he even shoved his fist in front of
complainant's face as if to strike her. 14 The thought of
appellant Dante Tambalo being outside, waiting to
come to Domingo's support anytime his help would
be needed simply transfixed her mind, overpowering
and discouraging any attempt to thwart the sexual
assault. She may have failed to successfully resist
appellant Domingo's advances at the actual time of
the sexual assault itself, but such is not a
manifestation of consent, but rather an indication of
involuntary submission. 15
The defense also faults complainant for not duly
resisting appellant Domingo, considering that her
right hand was free during the intercourse. 16 The fact
that, while coitus was going on between complainant
and her abuser, she had a free hand to resist, the
appellant's further advances is no argument that no
resistance was employed. Besides, the law does not
impose a burden on the rape victim to prove
resistance. What has to be proved by the prosecution
is the use of force or intimidation by the accused in
having sexual intercourse with the victim. 17
The defense further submits that although appellant
Domingo threatened to kill her if she resisted, still
this circumstance did not justify her submission to
him, for the latter was not armed with any weapon.
On this tenuous premise, the defense posits that there
was therefore no authentic apprehension and real fear
of immediate death or great bodily harm on the part
of complainant. 18
We are not persuaded. As we have heretofore held, in
using force it is not necessary that the offender is
armed with a weapon, as the use of a weapon serves
only to increase the penalty. Intimidation can be
addressed to the mind as well. 19
Clearly then, the sexual congress which transpired
between complainant and appellant, Domingo was
not the result of mutual passion but of a unilateral
lecherous act on the part of the latter. Complainant
was unable to put up a resistance for she was also
intimidated by the presence of appellant Tambalo
who posted himself as a guard outside the room,
coupled with the circumstances that appellants were
emboldened having drunk bottles of liquor a few
minutes earlier 20 and that no one could possibly
come to her aid, since her other co-workers were on
the ground floor, the men having their drinking
spree 21 and her roommate doing her laundry. 22
Being aware of all these attendant circumstances,
complainant could not but have believed that it
would be futile for her to resist. Cowed into

submission, she was a malleable prey to the

libidinous designs of her molester. Her apparent
"voluntariness and cooperation," as appellants would
put it, 23 were actually evidentiary of the intimidation
to which she was subjected by the presence of
appellants. Indeed, her actuations reveal her
resignation to the fact that she could not do anything
against appellants who are years older than her and
endowed with physical strength which her frail body
could not possibly overcome.
She could not immediately recover from the initial
shock that befell her such that despite the fact that her
roommate, Mely, already returned to the room, she
did not have the courage to tell the latter about the
incident. The threat of appellant Domingo still
lingered in her mind. This explains why it took her a
long time before she could sleep and she just cried
silently. 24
Moreover, at her age, she was still evidently innocent
of and ignorant to the ways of the world. Her naivete
was apparent during the sexual intercourse itself
when, after blood oozed out of her genitalia, she
mistook it for her menstruation. 25 In fact, when she
was compelled to insert the private organ of appellant
Domingo into her, she had a hard time doing so for,
according to her, she could not see her vaginal
orifice. 26 It is, therefore, hard to believe that she
could fabricate a story or fantasize a scenario with
details which are unknown to an ingenue.
In their effort to discredit complainant, appellants
would make capital of the fact that when she was
examined by Dr. Ceido of the NBI Medico-Legal
Division three days after the incident, it was found
that she had a deep old healed laceration of the
hymen as a result of an injury that happened a month
or several months before the examination. 27 They
consequently assert that, contrary to her asseveration,
she was no longer a virgin at the time of the alleged
rape. 28 We reject this hypothesis.
The mere fact that complainant had a long-healed
laceration in the hymen at the time appellant
Domingo had sexual intercourse with her is not
incompatible with her claim that she was still a
virgin. For, as we held in People vs. Tapao: 29
. . . .While it may be true that the "vaginal canal
easily admits 1 finger" and that there are healed
lacerations, external orifice of the vagina, 6 o'clock
and 1 o'clock, the rupture of the hymen is not a sure
index of a sexual experience. A host other causes than
penetration of the vagina by a penis can bring about
laceration of the hymen. Masturbation, accidental
violence, exaggerated separation of thighs, rigorous
and excessive physical exercise and activities are
among the other factors that may cause laceration of
the hymen independently of the act of sexual
intercourse.

Besides, the contention is immaterial since, whether

the laceration of the hymen is newly sustained or not,
this fact will not negate the consummation of the
crime of rape. The victim's virginity is not an element
of the crime and is, therefore, inconsequential; what
is material is that she had been forced and/or
intimidated to have sex with the felon, as in the
present case.
Appellant Domingo does not deny having engaged in
sexual intercourse with complainant, although he
claims that their sexual act was but the culmination
of mutual passion and lust. To support his contention,
he banks on the sweetheart theory often used as a
defense in rape cases. 30 That defense, however, is
untenable in the case at bar.
While he contends that he and complainant are
sweethearts, his assertion stands unsubstantiated and
uncorroborated by any other witness. His is the
burden of proof for this affirmative allegation. Not
only was his claim categorically denied by
complainant, 31 but there was also no substantial
evidence such as love notes, mementos or pictures
presented by him to support it. Moreover, even
granting that he and complainant were really
sweethearts, that fact alone would not negate the
commission of rape. A sweetheart cannot be forced to
have sex against her will. From a mere fiancee,
definitely a man cannot demand sexual submission
and, worse, employ violence upon her on a mere
justification of love. Love is not a license for lust. 32
Appellants also venture the specious argument that
the words "Huwag, Rolando" uttered by complainant
were more of a romantic gesture than a manifestation
of resistance, and that she was then inciting appellant
Domingo to pursue his romantic advances. 33 This
casuistry does not merit consideration. Far from
being a romantic gesture, said words were
undeniably indicative of complainant's pitiful
objection and pathetic remonstration against the
sexual abuse to which she was being subjected.
Furthermore, we cannot, subscribe to the pretension
of appellant Domingo that complainant shared with
him the plan for the latter to gain access to her room
for their relationship to ripen into a full-blown
romance; and that she left the door of the room
unlocked so that he could have easy access
thereto. 34 This was belied by complainant herself
who said that the reason why she left the door
unlocked was because she was asked by her
roommate, Mely, to leave it open so that the latter,
after washing her laundry, could enter the room
without having to disturb or awaken complainant. 35
We cannot, therefore, understand how appellants
could consider that agreement of the girls as evidence
that complainant is a woman of loose
morals. 36 Her failure to consider her safety by not
locking the door is but a further indication of her

artless and trusting nature, with the added

circumstance that she considered appellants as her
older brothers. 37 It did not enter her mind that the
very people in whom she reposed confidence were
actually satyrs. Moreover, if the lovemaking was
mutual, appellant Domingo could not have carelessly
left the door unlocked on the lame excuse that he was
then in a hurry so he forgot. 38Actually, he was in
such haste so he could carry out his salacious plan
without the same being discovered by the other
workers in the factory.
In rape cases, the conduct of the woman immediately
following the alleged assault is of utmost importance.
The fact that two days after the incident, having
recovered from the shook thereof, complainant
reported the matter to her design manager, then to her
sister, and after which they proceeded to the police
for investigation and to a doctor for examination
negates the fabrication imputed to her by the defense.
Complainant's willingness to face police investigators
and to submit to an intimate physical examination is
a mute but eloquent testimony of the truth of her
charges against appellants. 39
Appellants further contend that complainant made up
the rape story, as her supposed lovemaking with
appellant Domingo resulted in a rumor that circulated
among their co-workers and she suspected appellants
to have propagated the same. 40 This putative motive
which appellants concocted and ascribed to
complainant is too ridiculous to inspire belief.
Contrarily, there is nothing incredible in her
testimony which, unlike the desperate theory
espoused by appellants on their bare assertions, is in
conformity to common knowledge and consistent
with human experience.
As we have long held, when a woman says that she
has been raped, she say in effect all that is necessary
to show that rape has been committed. Her testimony
is credible where she has no motive to testify against
the appellants, as in the case at bar. Verily, a rape
victim would not publicly disclose that she had been
raped and undergo the trouble and humiliation of a
trial if her motive was not to bring to justice the
persons who had abused her. More specifically, no
young Filipina of decent repute would publicly admit
that she has been criminally abused and ravished
unless it is the truth. It is her natural instinct to
protect her honor. 41
What tells heavily against appellant Domingo is the
fact that after his arrest and while being detained at
the city jail, he pleaded to complainant, through his
sister, for forgiveness and even offered to marry her,
obviously to induce the latter to withdraw the
charge. 42 Under our law and jurisprudence on
evidence, such an offer to compromise and of
marriage an implied admission of guilt. 43 Moreover
if it were true that he and complainant mutually
planned their lovemaking and that the latter was

really his sweetheart, there would be no sense or

necessity for him to beg for forgiveness from her.
As for appellant Dante Tambalo, his defense consists
of a simple denial which, as a form of negative
evidence, cannot prevail over the positive testimony
and
identification
of
complainant
herein.
Furthermore, there is no scintilla of doubt that
appellants conspired, confederated and mutually
helped each other for the consummation of the crime
charged, which is not implausible or incredible
considering that they are not only co-workers but
even
townmates. 44 Their combined efforts made possible
the criminal defloration of a provincial girl who came
to the city to earn a decent living, not knowing that a
horrible nightmare awaited her and would leave a
permanent emotional scar on her life.
The chronology of events, as found by the trial
court; 45 support this conclusion of criminal
confederacy. Shortly before the incident occurred,
appellants had a drinking spree in the kitchen on the
ground floor of the factory. Both of them entered
complainant's room afterwards, where appellant
Tambalo pressed and held complainant's forehead,
while appellant Domingo held and pressed her right
breast. Tambalo then left the room and posted
himself outside the door of the room as ordered by
Domingo. Complainant could recognize Tambalo as
she saw his mouth, eyes and nose peeping through
the hole of the door. When Domingo had satisfied his
lust, he left together with Tambalo. These facts
explicitly prove appellants' concerted action towards
the realization of the crime, for which both of them
should be held accountable.
WHEREFORE, the appealed judgment is hereby
AFFIRMED, with the modification that the award for
moral damages is hereby increased to P30,000.00 in
accordance with the present jurisprudential policy.
SO ORDERED.

13.

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee, vs.
ROEL ENCINADA, accused-appellant.
DECISION

PANGANIBAN, J.:
In acquitting the appellant, the Court reiterates
the constitutional proscription that evidence (in this
case, prohibited drugs) seized without a valid search
warrant is inadmissible in any proceeding. A yield of
incriminating evidence will not legitimize an illegal
search. Indeed, the end never justifies the means.
The Case
This principle is stressed in this appeal from the
Judgment,[1] promulgated on July 15, 1994 by the
Regional Trial Court of Surigao City, Branch 32, [2] in
Criminal Case No. 3668, convicting Appellant Roel
Encinada of illegal transportation of prohibited drugs
under Section 4 of Republic Act No. 6425, as
amended by Batas Pambansa Blg. 179.

An Information,[3] dated May 22, 1992, was filed

by Third Asst. Surigao City Prosecutor Virgilio M.
Egay charging appellant of said crime allegedly
committed as follows:
That on or about May 21, 1992, in the City of
Surigao, Philippines, and within the jurisdiction of
this Honorable Court, the above-named accused, in
gross disregard of the prohibition of the provisions of
Republic Act No. 6425 as amended by Batas
Pambansa Bilang 179, did then and there willfully,
unlawfully and feloniously have in his possession,
custody and control dried marijuana leaves weighing
800 grams, more or less, which he transported to
Surigao City from Cebu City aboard a passenger
ship, well knowing that such acts are expressly
prohibited by law.
Before arraignment, appellant, assisted by
Counsel Antonio Casurra, offered to plead guilty to a
lesser offense, i.e., illegal possession of prohibited
drugs.[4] The trial court requested the prosecution to
study the offer,[5] but the records do not show any
agreement on such proposal.
Upon his arraignment, appellant pleaded not
guilty to the charge.[6] After the prosecution presented
its evidence, the defense filed, with leave of court,[7] a
Demurrer to Evidence dated September 1, 1993,
[8]
questioning the admissibility of the evidence
which allegedly was illegally seized from
appellant. The court a quo denied the motion, ruling:
[9]

For resolution is the demurrer to evidence dated

September 1, 1993 of the accused, Roel Encinada,
praying that he be acquitted of the crime charged on
the ground of the inadmissibility of the evidence for
the prosecution consisting of the marijuana (seized)
from him by the police. The accused raised the
following issues, to wit: (1) Whether the arrest and
search of the accused without a warrant would fall
under the doctrine of warrantless search as an
incident to a lawful arrest; and, (2) Whether the
subject marijuana is admissible in evidence against
the accused.
xxxxxxxxx
A scrutiny of the evidence for the prosecution shows
that the events leading to the arrest of the accused
started when SPO4 Nicolas Bolonia, chief of the PNP
vice control section, received a tip from his informer
that the accused, Roel Encinada would be arriving on
board the M/V Sweet Pearl at about seven oclock in
the morning of May 21, 1992. On cross-examination
SPO4 Bolonia testified that the information was
given to him by his asset at about four oclock in the
afternoon of May 20, 1992. After receiving the tip he
relayed the information to SPO4 Cipriano Iligan, Jr.,
PNP chief of intelligence.SPO4 Bolonia further
declared that he would have applied for a search
warrant but there was simply no time for it.

xxxxxxxxx
In the later case of People vs. Tangliben (184 SCRA
220) the Supreme Court modified its ruling in the
Aminuddin case when it held that the arrest and
search is lawful when the police had to act quickly
and there was no more time to secure a search
warrant. It is noted that the tip was given to SPO4
Bolonia by his informant at about the closing time of
the offices of the various courts. He still had to
inform SPO4 Iligan in order to coordinate with
him. The boat carrying the accused was scheduled to
dock in Surigao City at seven oclock the following
morning when the courts had not yet opened.
It is therefore quite obvious that the police did not
have enough time to apply for a search warrant in the
interim. The police cannot be faulted for acting on
the tip and for stopping and searching the accused
even without a warrant.
In the case at bar, the accused was caught
in flagrante delicto in actual possession of the
marijuana. The search made upon his personal effects
falls squarely under paragraph (a) of Rule 113,
Section 5 of the 1985 Rules on Criminal Procedure
which allows a warrantless search as an incident to a
lawful arrest (People vs. Malmstedt, 198 SCRA 401).
xxxxxxxxxxxx
WHEREFORE, premises considered, the demurrer to
evidence in question is denied for lack of merit.
After trial in due course, the assailed Judgment
was rendered, the decretal portion of which reads:
WHEREFORE, premises considered, the Court finds
the accused, Roel Encinada, guilty beyond reasonable
doubt of the violation of Section 4, Article II, of
Republic Act No. 6425 as amended by Batas
Pambansa Bilang 179, and hereby sentences him to
suffer the penalty of life imprisonment and to pay a
fine of twenty thousand pesos (P20,000.00) without
subsidiary imprisonment in case of insolvency; and
to pay the costs.
The marijuana (Exhibit B) involved in this case is
hereby forfeited to the government to be destroyed or
disposed of pursuant to present rules and
regulations. The two plastic chairs (Exhibits D and
D-1) are also forfeited to the government.
The Facts
Version of the Prosecution
The Solicitor General, in the Appellees Brief,
recounts the events leading to appellants arrest, as
follows:[10]

At around 4 p.m. of May 20, 1992, SPO4 Nicolas

Bolonia was in his house when he received a tip from
an informant that Roel Encinada would be arriving in
Surigao City from Cebu City in the morning of May
21, 1992 on board the M/V Sweet Pearl bringing
with him marijuana. Bolonia was then Chief of the
Vice Control Squad of the Surigao City Police (pp.
27-29; TSN, November 27, 1992, 34-40; p. 10, TSN,
May 14, 1993).
Bolonia already knew Encinada because the latter
previously was engaged in illegal gambling known as
buloy-buloy. After receiving the tip, Bolonia notified
the members of his team - SPO3 Marcial Tiro, SPO3
Glen Abot and SPO3 Charlito Duero - as well as his
colleague SPO4 Cipriano Iligan, Jr., the chief of the
Intelligence and Investigation Division, of the
information he received. Because the information
came late, there was no more time to secure a search
warrant (pp. 38; TSN, November 27, 1992, May 14,
1993, p. 13; pp. 4, 19; TSN, March 3, 1993).
In the early morning of May 21, 1992, Bolonia,
Iligan and other police officers deployed themselves
in different strategic points at the city wharf to
intercept Encinada. At about 8:15 a.m. of the same
day, the M/V Sweet Pearl finally docked. The police
officers saw Encinada walk briskly down the
gangplank, carrying two small colored plastic baby
chairs in his hand (p. 11 TSN, May 14, 1993; pp. 4,
5, 15-16 TSN, March 3, 1993; pp. 29-30 TSN,
November 27, 1992, pp. 29-30).
From their various positions, the police officers
followed Encinada immediately boarded a tricycle at
Borromeo Street, still holding the plastic chairs. As
the tricycle slowly moved forward, Bolonia chased it
and ordered the driver to stop after identifying
himself as a police officer. When the vehicle stopped,
Bolinia identified himself to Encinada and ordered
him to alight from the tricycle. Bolonia asked
Encinada to hand over the plastic chairs, to which the
latter complied (pp. 5, 6, 17 TSN, March 3, 1993, pp.
30-32, 35 TSN, November 27, 1992).
Bolonia noticed that there were two small chairs, one
green and the other blue, stacked together and tied
with a piece of string. Between the stack of chairs,
there was a bulky package. Bolonia examined it
closely and smelled the peculiar scent of
marijuana. Making a small tear in the cellophane
cover, Bolonia could see and smell the what appeared
to be marijuana, a prohibited drug (pp. 6-9 TSN,
March 3, 1993, Exh. B, D and sub-markings; pp. 3234. 35-39 TSN, November 27, 1992).
Encinada was brought to the central police
station. Bolonia, in the presence of one Nonoy Lerio
who is a member of the local media and a friend of
Encinada, opened the package. It was discovered that
indeed, the contents consisted of dried leaves known
as marijuana. In the course of the investigation,

Encinada surrendered to Bolonia his passenger ticket

issued by M/V Sweet Pearl (pp. 9-11 TSN, March 3,
1993, Exh. E; pp. 34-35, 39-40 TSN, November 27,
1992).
On July 13, 1992, Bolonia brought the package of
dried leaves for examination at the PNP Crime
Laboratory at Camp Evangelista, Cagayan de Oro
City. The forensic chemist, Inspector Vicente
Armada, tested the leaves and confirmed that they
were positive for marijuana. However, the marijuana
only weighed 610 grams, which Armada opined to be
probably due to shrinkage and moisture loss (pp. 1217, 19-21, 24-40, 41; TSN, November 27,1992, Exh.
A, B. C and sub-markings.)
Version of the Defense
Appellant sets up denial as his defense. In his
brief, he denied ownership and possession of said
plastic baby chairs, as follows:[11]
1) In the morning of May 21, 1992, at around 8:00
oclock in the morning, more or less, the accused was
seen to have disembarked from MV Sweet Pearl after
an overnight trip from Cebu City;
2) The accused proceeded to the Surigao PPA Gate
and boarded a motorela bound for his residence at
Little Tondo, (within the City Proper), Surigao
City. The Motorela was fully loaded with passengers,
with the accused as the fourth passenger;
3) When the motorela was already able to travel a
distance of about ten (10) meters more or less, the
same was forcibly stopped by persons who ordered
the passengers to disembarked (sic). Thereafter, all
the (baggage) of the passengers and the driver were
ordered to stand in a line for which a body search
was made individually (sic);
4) After the search was made, the accused was
singled out in the line and ordered to board the
service vehicle of the police and was brought to the
PNP Police Station.
Before however the accused boarded the jeep, he was
openly protesting to the action taken by the police
authorities and demanded from the apprehending
officers a copy of a search warrant and/or warrant of
arrest for the search made and for his apprehension;
5) In the police headquarters, the accused was made
to undergo custodial investigation for which a plastic
bag was presented to him allegedly containing the
subject marijuana leaves. The accused denied that the
said plastic bag belonged to him.
The denial was witnessed by Mr. Daniel Nonoy
Lerio, Jr. a member of the Surigao City Press, who
was invited by the Police Investigators to witness the

presentation of the alleged marijuana leaves, during

the said investigation;
6) After the custodial investigation, the accused was
placed immediately behind bars and the Information
for Violation of RA 6425 as amended by Batas
Pambansa Blg. 179 was filed before the Court;
xxxxxxxxx
Aside from appellant, the defense also presented
five (5) other witnesses whose testimony allegedly
established the following:[12]
8.a) Ruben Concha the driver of the motorela who
testified that he was surprised when the motorela he
was driving was forcibly stopped (while already in
motion ) by the police authorities while directing his
four (4) passengers, (3 males and 1 female) to
disembarked (sic) together with their (baggage).
That after the search was made, the accused was
singled out, and despite the protests made, was
ordered to board the Police service vehicle, while the
2 other male passengers just left the scene while the
female passenger continued to board the motorela
who directed him to proceed to the residence of Baby
Encinada to verify whether the person picked up by
the police authorities was related to the latter;
8.b) Josephine Nodalo testified that she is a
beautician, and that she was one of the four (4)
passengers of the motorela driven by Ruben Concha,
which motorela was forcibly stopped by men who are
chasing it after travelling a distance of 5 to 10 meters
away from its loading area near the PPA Gate.
All the four (4) passengers were ordered to
disembarked (sic) from the motorela whereupon they
were all subjected to body search including their
(baggage).
That it was the male passenger who was sitting at the
rear portion of the motorela who was picked up by
the Police Authorities and despite the protests made
was ordered to board the Police service vehicle.
Upon learning from the persons who were gathered
at the scene, that the one who was picked up was the
son of Mr. Encinada, the latter boarded back the
motorela and directed the driver to proceed to the
residence of the Encinadas at Little Tondo to verify
whether it was really their son who was picked up by
the police authorities. She made this, as Mrs.
Encinada, (the mother of the accused) is his (regular)
customer;
8.c) Mr. Daniel Nonoy Lerio, Jr. testified that, being
a member of the Press, he was requested by the
police authorities to witness the custodial
investigation conducted upon the person of the
accused, who, during the entire proceedings of the

investigation vehemently denied having any

knowledge about the marijuana leaves placed inside
the plastic bag;
8.d) Isabelita Encinada testified that she was
informed by her manicurist (Josephine Nodalo) about
the arrest x x x (of) her son, somewhere at the PPA
Port Area and upon being informed, she and her
husband immediately went to the Surigao PNP
Headquarters to verify the (news) x x x;
x x x x x x x x x.
Ruling of the Trial Court
The trial court rejected appellants claim that he
was merely an innocent passenger and that his
package contained mango and otap samples, not
marijuana. Emphasizing that the Surigao City Police
had no ill motive against appellant, the trial court
gave credence to SPO4 Bolonias story that he
actually received from his police asset the
information regarding appellants arrival in Surigao
City. The trial court further emphasized that appellant
was caught carrying marijuana in flagrante
delicto. Hence, the warrantless search following his
lawful arrest was valid and the marijuana obtained
was admissible in evidence.
Assignment of Errors
In his Brief, appellant submits the following
assignment of errors:[13]
I. The lower court erred in finding that the accused
was caught in flagranti (sic) delicto in possession of
the subject marijuana leaves and is the one
responsible in transporting the same;
II. The lower court gravely erred in finding that
search and the arrest of the accused without a warrant
would fall under the doctrine of warrantless search as
incident to a lawful arrest -III. The lower court gravely erred in finding that the
subject marijuana leaves is admissible in evidence
In short, the main issues are (1) the sufficiency
of the evidence showing possession of marijuana by
appellant and (2) the validity of the search conducted
on the person and belongings of the appellant.
The Courts Ruling
The petition is meritorious.

First Issue: Illegal Possession of Prohibited Drugs

Appellant claims that the prosecution failed to
prove his possession and ownership of the plastic
baby chairs. He contends that the testimonies of
Bolonia and Iligan conflicted as to the number of
passengers riding the motorela. Such alleged conflict
is peripheral and irrelevant. Hence, it deserves scant
consideration. Appellant adds that such testimonies
also conflicted as to the place where appellant sat
inside the motorela. This claim, aside from being
flimsy, is also not supported by the transcript of
stenographic notes.

great respect as it was in a better position to observe

the demeanor and deportment of the witnesses on the
stand;[15] hence, it was in a superior situation to assess
their testimonies.
Furthermore, proof of ownership of the
marijuana is not necessary in the prosecution of
illegal drug cases;[16] it is sufficient that such drug is
found in appellants possession.
Second Issue: Illegal Search and Seizure

In his testimony, appellant vehemently denied

possession of the plastic baby chairs, stressing that he
was not holding them when the search was
conducted. However, his denial is easily rebutted by
Bolonias testimony:[14]

Based on the foregoing discussion, appellants

conviction could have been affirmed by this
Court. However, the very evidence implicating him -the prohibited drugs found in his possession -- cannot
be used against him in this case or, for that matter, in
any proceeding.

Q: When you saw Roel Encinada who

disembarked from M/V Sweet Pearl,
what did you observe in his person, if
any?

Generally, a search and seizure must be validated

by a previously secured warrant; otherwise, such
search and seizure is subject to challenge.[17] Section
2, Article III of the 1987 Constitution, is apropos:

A: He was carrying a (sic) baby chairs.

Q: What kind of chairs?
A: A (sic) plastic chairs.
xxxxxxxxx
Q: After you saw Roel Encinada
disembarked (sic) from the boat, what
did you and your companions do?
A: We followed him behind because we
posted in the different direction(s) in
the wharf.
xxxxxxxxx
Q: You said you followed Roel Encinada,
what happened next when you followed
him?
A: I saw Roel Encinada took (sic) a ride
with a motorcycle so I chased him and
let him stopped (sic).
xxxxxxxxx
Q: By the way, where was (sic) this (sic)
two plastic chairs placed in the
motorize tricycle?
A: He was sitting at the back of the motor at
the right portion of the seat and the
chairs was (sic) placed besides
him. ([W]itness indicating that he was
sitting (sic) an imaginary seat at the
back of the motor and holding an (sic)
imaginary chairs with his left arm).
Between these two contentions, the choice of the
trial court prevails because this is a matter that
involves credibility of witnesses. On this subject of
credibility, the opinion of the trial court deserves

SEC. 2. The right of the people to be secure in their

persons, houses, papers, and effects against
unreasonable searches and seizures of whatever
nature and for any purpose shall be inviolable, and no
search warrant or warrant of arrest shall issue except
upon probable cause to be determined personally by
the judge after examination under oath or affirmation
of the complainant and the witnesses he may
produce, and particularly describing the place to be
searched and the persons or things to be seized.
Any evidence obtained in violation of this
provision is legally inadmissible in evidence as a fruit
of the poisonous tree. This principle is covered by
this exclusionary rule:
SEC. 3. x x x
(2) Any evidence obtained in violation of x x x the
preceding section shall be inadmissible for any
purpose in any proceeding.
The plain import of the foregoing provision is
that a search and seizure is normally unlawful unless
authorized by a validly issued search warrant or
warrant of arrest. This protection is based on the
principle that, between a citizen and the police, the
magistrate stands as a mediator, nay, an authority
clothed with power to issue or refuse to issue search
warrants or warrants of arrest.[18]
The right against warrantless searches, however,
is subject to legal and judicial exceptions, as
follows: (1) search incidental to a lawful arrest, (2)
search of moving vehicles, (3) seizure in plain view,
(4) customs searches, and (5) waiver by the accused
themselves of their right against unreasonable search
and seizure.[19] In these cases, the search and seizure

may be made only upon probable cause as the

essential requirement. Although the term eludes
exact definition, probable cause signifies a
reasonable ground of suspicion supported by
circumstances sufficiently strong in themselves to
warrant a cautious mans belief that the person
accused is guilty of the offense with which he is
charged; or the existence of such facts and
circumstances which could lead a reasonably discreet
and prudent man to believe that an offense has been
committed and that the item(s), article(s) or object(s)
sought in connection with said offense or subject to
seizure and destruction by law is in the place to be
searched.[20]
In this case, Bolonia received at 4:00 p.m. on
May 20, 1992 an intelligence report that appellant
who was carrying marijuana would arrive the next
morning aboard the M/V Sweet Pearl.Although such
report could have been the basis of probable cause,
Bolonia explained that he could not secure a warrant
because the courts in Surigao City were already
closed for the day.Thus, he and the other lawmen had
no choice but to proceed the next morning to the port
area. After appellant disembarked from the ship and
rode a motorela, Bolonia stopped the motor vehicle
and conducted the search. He rummaged through the
two strapped plastic baby chairs which were held by
appellant and found inserted between them a package
of marijuana wrapped in a small plastic envelope.
Appellant contended before the lower court that
the warrantless search of his belongings was
proscribed by the Constitution. But the trial judge
rejected this contention, opining that appellant was
caught in flagrante delicto at the time of his
arrest. Hence, it concluded that the warrantless
search conducted after his lawful arrest was valid and
that the marijuana was admissible in evidence.
Rule 113, Section 5, discusses the instances
when a warrantless arrest may be effected, as
follows:
SEC. 5. Arrest without warrant; when lawful.A peace
officer or a private person may, without a warrant,
arrest a person:
(a) When, in his presence, the person to be arrested
has committed, is actually committing, or is
attempting to commit an offense;
(b) When an offense has in fact just been committed,
and he has personal knowledge of facts indicating
that the person to be arrested has committed it; and
(c) When the person to be arrested is a prisoner who
has escaped from a penal establishment or place
where he is serving final judgment or temporarily
confined while his case is pending, or has escaped
while being transferred from one confinement to
another.

x x x x x x x x x.
In this case, appellant was not committing a
crime in the presence of the Surigao City
policemen. Moreover, the lawmen did not have
personal knowledge of facts indicating that the
person to be arrested had committed an offense. The
search cannot be said to be merely incidental to a
lawful arrest. Raw intelligence information is not a
sufficient ground for a warrantless arrest. Bolonias
testimony shows that the search preceded the arrest:
[21]

Q: You said you followed Roel Encinada,

what happened next when you followed
him?
A: I saw Roel Encinada took (sic) a ride
with a motorcycle so I chased him and
let him stopped (sic).
xxxxxxxxx
Q: You said you stopped the motor tricycle
in which Roel Encinada (sic) riding,
what did you do?
A: At first I identified myself to the driver
and to some of the passengers.
xxxxxxxxx
Q: And after that, what happened next?
A: I requested Roel Encinada to disembark
from the motor tricycle because of that
information given to us in his
possession.
Q: Possession of what?
A: Possession of marijuana, Sir.
Q: And Roel Encinada alighted from the
motor vehicle?
A: Yes, Sir.
Q: After Roel Encinada alighted from the
motor tricycle, what happened next?
A: I requested to him to see his chairs that
he carried.
Contrary to the trial courts ruling, People vs.
Tangliben[22] is factually inapplicable to the case at
bar. The prosecutions evidence did not show any
suspicious behavior when the appellant disembarked
from the ship or while he rode the motorela. No act
or fact demonstrating a felonious enterprise could be
ascribed to appellant under such bare circumstances.
We disagree with the trial courts justification for
the search:
The arrest of the accused without warrant was lawful
because there was a probable cause or ground for his
apprehension. The police had received reliable, albeit
confidential information from their informant that
Roel Encinada would be bringing in marijuana from

Cebu City on board the M/V Sweet

Pearl. Unfortunately there was no more time for the
police to apply for and secure a search warrant as the
information was received late in the afternoon of
May 20, 1992 and the accused was expected to arrive
at seven oclock the following morning. The different
courts were closed by then. Nevertheless the police
felt constrained to act on the valuable piece of
information.
Even if the information was received by Bolonia
about 4:00 p.m. of May 20, 1992 at his house, there
was sufficient time to secure a warrant of arrest, as
the M/V Sweet Pearl was not expected to dock until
7:00 a.m. the following day. Administrative Circular
No. 13 allows applications for search warrants even
after court hours:
3. Rafflling shall be strictly enforced, except only in
case where an application for search warrant may be
filed directly with any judge in whose jurisdiction the
place to be searched is located, after office hours, or
during Saturdays, Sundays, and legal holidays, in
which case the applicant is required to certify under
oath the urgency of the issuance thereof after office
hours, or during Saturdays, Sundays and legal
holidays; (Emphasis supplied)
The same procedural dispatch finds validation
and reiteration in Circular No. 19, series of 1987,
entitled Amended Guidelines and Procedures on
Applications for Search Warrants for Illegal
Possession of Firearms and Other Serious Crimes
Filed in Metro Manila Courts and Other Courts with
Multiple Salas:
This Court has received reports of delay while
awaiting raffle, in acting on applications for search
warrants in the campaign against loose firearms and
other serious crimes affecting peace and order. There
is a need for prompt action on such applications for
search warrant. Accordingly, these amended
guidelines in the issuance of a search warrant are
issued:
1. All applications for search warrants relating
to violation of the Anti-subversion Act, crimes
against public order as defined in the Revised Penal
Code, as amended, illegal possession of firearms
and/or ammunition and violations of the Dangerous
Drugs Act of 1972, as amended, shall no longer be
raffled and shall immediately be taken cognizance of
and acted upon by the Executive Judge of the
Regional Trial Court, Metropolitan Trial Court, and
Municipal Trial Court under whose jurisdiction the
place to be searched is located.
2. In the absence of the Executive Judge, the ViceExecutive Judge shall take cognizance of
and personally act on the same. In the absence of the
Executive Judge or Vice-Executive Judge, the
application may be taken cognizance of and acted

upon by any judge of the Court where the application

is filed.
3. Applications filed after office hours, during
Saturdays, Sundays and holidays, shall likewise be
taken cognizance of and acted upon by any judge of
the Court having jurisdiction of the place to be
searched, but in such cases the applicant shall certify
and state the facts under oath, to the satisfaction of
the judge, that its issuance is urgent.
4. Any judge acting on such application shall
immediately and without delay personally conduct
the examination of the applicant and his witnesses to
prevent the possible leakage of information. He shall
observe the procedures, safeguards, and guidelines
for the issuance of search warrants provided for in
this Courts Administrative Circular No. 13, dated
October 1, 1985.
In People vs. Aminnudin, the Court declared as
inadmissible in evidence the marijuana found in
appellants possession during a search without a
warrant, because it had been illegally seized. The
Court firmly struck down the policemens cavalier
disregard for the Bill of Rights, explaining:
The present case presented no urgency. From the
conflicting declarations of the PC witnesses, it is
clear that they had at least two days within which
they could have obtained a warrant to arrest and
search Aminnudin who was coming to Iloilo on the
M/V Wilcon 9. His name was known. The vehicle
was identified. The date of its arrival was
certain. And from the information they had received,
they could have persuaded a judge that there was
probable cause, indeed, to justify the issuance of a
warrant. Yet they did nothing. No effort was made to
comply with the law. The Bill of Rights was ignored
altogether because the PC lieutenant who was the
head of the arresting team, had determined on his
own authority that a search warrant was not
necessary.
Lawmen cannot be allowed to violate the very
law they are expected to enforce. Bolonias receipt of
the intelligence information regarding the culprits
identity, the particular crime he allegedly committed
and his exact whereabouts underscored the need to
secure a warrant for his arrest. But he failed or
neglected to do so. Such failure or neglect cannot
excuse him from violating a constitutional right of
the appellant.
It is significant that the Solicitor General does
not share the trial judges opinion. Taking a totally
different approach to justify the search, the Republics
counsel avers that appellant voluntarily handed the
chairs containing the package of marijuana to the
arresting officer and thus effectively waived his right
against the warrantless search. This, he gleaned from
Bolonias testimony:[23]

Q: After Roel Encinada alighted from the

motor tricycle, what happened next?
A: I requested to him to see his chairs that
he carried.
Q: Are you referring to the two plastic
chairs?
A: Yes, Sir.
Q: By the way, when Roel Encinada agreed
to allow you to examine the two plastic
chairs that he carried, what did you do
next?
A: I examined the chairs and I noticed that
something inside in between the two
chairs.
We are not convinced. While in principle we
agree that consent will validate an otherwise illegal
search, we believe that appellant -- based on the
transcript quoted above -- did not voluntarily consent
to Bolonias search of his belongings. Appellants
silence should not be lightly taken as consent to such
search.[24] The implied acquiescence to the search, if
there was any, could not have been more than mere
passive conformity given under intimidating or
coercive circumstances and is thus considered no
consent at all within the purview of the constitutional
guarantee.[25] Furthermore, considering that the
search was conducted irregularly, i.e., without a
warrant, we cannot appreciate consent based merely
on the presumption of regularity of the performance
of duty.
Appellants alleged acquiescence should be
distinguished from the consent appreciated in the
recent case of People vs. Lacerna.[26] In said case, the
search was conducted at a validly established
checkpoint and was made in the regular performance
of the policemens duty. Although it became intrusive
when the policemen opened his baggage, it was
validated by the consent of appellant, who testified in
open court that he allowed such search because he
had nothing to hide. In the present case, there was no
checkpoint established. The policemen stopped
the motorela and forthwith subjected the passengers
to a search of their persons and baggage. In contrast
to the accused in Lacerna, herein appellant testified
that he openly objected to the search by asking for a
warrant.
Without the illegally seized prohibited drug, the
appellants conviction cannot stand. There is simply
no sufficient evidence remaining to convict him. That
the search disclosed a prohibited substance in
appellants possession, and thus confirmed the police
officers initial information and suspicion, did not
cure its patent illegality. An illegal search cannot be
undertaken and then an arrest effected on the strength
of the evidence yielded by the search.
We should stress that the Court is not unmindful
of the difficulties of law enforcement agencies in

suppressing the illegal traffic of dangerous

drugs. However, quick solutions of crimes and
apprehensions of malefactors do not justify a callous
disregard of the Bill of Rights. Law enforcers are
required to follow the law and to respect the peoples
rights. Otherwise,
their
efforts
become
counterproductive. We remind them of this recent
exhortation by this Court:[27]
x x x In the final analysis, we in the administration of
justice would have no right to expect ordinary people
to be law-abiding if we do not insist on the full
protection of their rights. Some lawmen, prosecutors
and judges may still tend to gloss over an illegal
search and seizure as long as the law enforcers show
the alleged evidence of the crime regardless of the
methods by which they were obtained. This kind of
attitude condones law-breaking in the name of law
enforcement. Ironically, it only fosters the more rapid
breakdown of our system of justice, and the eventual
denigration of society. While this Court appreciates
and encourages the efforts of law enforcers to uphold
the law and to preserve the peace and security of
society, we nevertheless admonish them to act with
deliberate care and within the parameters set by the
Constitution and the law. Truly, the end never
justifies the means.
WHEREFORE, the
appeal
is
hereby GRANTED. The
assailed
Decision
is REVERSED and SET
ASIDE. Appellant
is ACQUITTED. Unless convicted for any other
crime or detained for some lawful reason, Appellant
Roel
Encinada
is ORDERED
RELEASED immediately.
SO ORDERED.

14.

COMMISSIONER
OF
INTERNAL
REVENUE, petitioner, vs. THE COURT
OF APPEALS, COURT OF TAX
APPEALS
and
A.
SORIANO
CORP., respondents.
DECISION

MARTINEZ, J.:
Petitioner Commissioner of Internal Revenue
(CIR) seeks the reversal of the decision of the Court
of Appeals (CA)[1] which affirmed the ruling of the
Court of Tax Appeals (CTA)[2] that private respondent
A. Soriano Corporations (hereinafter ANSCOR)
redemption and exchange of the stocks of its foreign
stockholders cannot be considered as essentially
equivalent to a distribution of taxable dividends
under Section 83(b) of the 1939 Internal Revenue
Act[3]
The undisputed facts are as follows:
Sometime in the 1930s, Don Andres Soriano, a
citizen and resident of the United States, formed the
corporation A. Soriano Y Cia, predecessor of
ANSCOR, with a P1,000,000.00 capitalization
divided into 10,000 common shares at a par value
of P100/share. ANSCOR is wholly owned and
controlled by the family of Don Andres, who are all
non-resident aliens.[4] In 1937, Don Andres
subscribed to 4,963 shares of the 5,000 shares
originally issued.[5]
On September 12, 1945, ANSCORs authorized
capital stock was increased to P2,500,000.00 divided
into 25,000 common shares with the same par value.
Of the additional 15,000 shares, only 10,000 was
issued which were all subscribed by Don Andres,
after the other stockholders waived in favor of the
former their pre-emptive rights to subscribe to the

new issues.[6] This increased his subscription to

14,963 common shares.[7] A month later,[8] Don
Andres transferred 1,250 shares each to his two sons,
Jose and Andres, Jr., as their initial investments in
ANSCOR.[9] Both sons are foreigners.[10]
By 1947, ANSCOR declared stock dividends.
Other stock dividend declarations were made
between 1949 and December 20, 1963.[11] On
December 30, 1964 Don Andres died. As of that date,
the records revealed that he has a total shareholdings
of 185,154 shares[12] - 50,495 of which are original
issues and the balance of 134,659 shares as stock
dividend declarations.[13] Correspondingly, one-half
of that shareholdings or 92,577[14] shares were
transferred to his wife, Doa Carmen Soriano, as her
conjugal share. The other half formed part of his
estate.[15]
A day after Don Andres died, ANSCOR
increased its capital stock to P20M[16] and in 1966
further increased it to P30M.[17] In the same year
(December 1966), stock dividends worth 46,290 and
46,287 shares were respectively received by the Don
Andres estate[18] and Doa Carmen from ANSCOR.
Hence, increasing their accumulated shareholdings to
138,867 and 138,864[19] common shares each.[20]
On December 28, 1967, Doa Carmen requested a
ruling from the United States Internal Revenue
Service (IRS), inquiring if an exchange of common
with preferred shares may be considered as a tax
avoidance scheme[21] under Section 367 of the 1954
U.S. Revenue Act.[22] By January 2, 1968, ANSCOR
reclassified its existing 300,000 common shares into
150,000 common and 150,000 preferred shares.[23]
In a letter-reply dated February 1968, the IRS
opined that the exchange is only a recapitalization
scheme and not tax avoidance.[24] Consequently,[25] on
March 31, 1968 Doa Carmen exchanged her whole
138,864 common shares for 138,860 of the newly
reclassified preferred shares. The estate of Don
Andres in turn, exchanged 11,140 of its common
shares for the remaining 11,140 preferred shares, thus
reducing its (the estate) common shares to 127,727.
[26]

On June 30, 1968, pursuant to a Board

Resolution, ANSCOR redeemed 28,000 common
shares from the Don Andres estate. By November
1968, the Board further increased ANSCORs capital
stock toP75M divided into 150,000 preferred shares
and 600,000 common shares.[27] About a year later,
ANSCOR again redeemed 80,000 common shares
from the Don Andres estate,[28] further reducing the
latters common shareholdings to 19,727. As stated in
the board Resolutions, ANSCORs business purpose
for both redemptions of stocks is to partially retire
said stocks as treasury shares in order to reduce the
companys foreign exchange remittances in case cash
dividends are declared.[29]
In 1973, after examining ANSCORs books of
account and records, Revenue examiners issued a

report proposing that ANSCOR be assessed for

deficiency withholding tax-at-source, pursuant to
Sections 53 and 54 of the 1939 Revenue Code, [30] for
the year 1968 and the second quarter of 1969 based
on the transactions of exchange and redemption of
stocks.[31] The Bureau of Internal Revenue (BIR)
made the corresponding assessments despite the
claim of ANSCOR that it availed of the tax amnesty
under Presidential Decree (P.D.) 23[32] which were
amended by P.D.s 67 and 157.[33] However, petitioner
ruled that the invoked decrees do not cover Sections
53 and 54 in relation to Article 83(b) of the 1939
Revenue Act under which ANSCOR was assessed.
[34]
ANSCORs subsequent protest on the assessments
was denied in 1983 by petitioner.[35]
Subsequently, ANSCOR filed a petition for
review with the CTA assailing the tax assessments on
the redemptions and exchange of stocks. In its
decision, the Tax Court reversed petitioners ruling,
after finding sufficient evidence to overcome
the prima facie correctness of the questioned
assessments.[36] In a petition for review, the CA, as
mentioned, affirmed the ruling of the CTA.[37] Hence,
this petition.
The bone of contention is the interpretation and
application of Section 83(b) of the 1939 Revenue
Act[38] which provides:
Sec. 83. Distribution of dividends or assets by
corporations.
(b) Stock dividends A stock dividend representing the
transfer of surplus to capital account shall not be
subject to tax. However, if a corporation cancels or
redeems stock issued as a dividend at such time and
in such manner as to make the distribution and
cancellation or redemption, in whole or in part,
essentially equivalent to the distribution of a taxable
dividend, the amount so distributed in redemption or
cancellation of the stock shall be considered
as taxable income to the extent it represents a
distribution of earnings or profits accumulated after
March first, nineteen hundred and thirteen. (Italics
supplied).
Specifically,
the
issue
is
whether
ANSCORs redemption of stocks from its stockholder
as well as the exchange of common with preferred
shares can be considered as essentially equivalent to
the distribution of taxable dividend, making the
proceeds thereof taxable under the provisions of the
above-quoted law.
Petitioner contends that the exchange transaction
is tantamount to cancellation under Section 83(b)
making the proceeds thereof taxable. It also argues
that the said Section applies to stock dividendswhich
is the bulk of stocks that ANSCOR redeemed.
Further, petitioner claims that under the net effect
test, the estate of Don Andres gained from the
redemption. Accordingly, it was the duty of
ANSCOR to withhold the tax-at-source arising from

the two transactions, pursuant to Section 53 and 54 of

the 1939 Revenue Act.[39]
ANSCOR, however, avers that it has no duty to
withhold any tax either from the Don Andres estate
or from Doa Carmen based on the two transactions,
because the same were done for legitimate business
purposes which are (a) to reduce its foreign exchange
remittances in the event the company would declare
cash dividends,[40] and to (b) subsequently filipinized
ownership of ANSCOR, as allegedly envisioned by
Don Andres.[41] It likewise invoked the amnesty
provisions of P.D. 67.
We must emphasize that the application of Sec.
83(b) depends on the special factual circumstances of
each case.[42] The findings of facts of a special court
(CTA) exercising particular expertise on the subject
of tax, generally binds this Court, [43] considering that
it is substantially similar to the findings of the CA
which is the final arbiter of questions of facts. [44] The
issue in this case does not only deal with facts but
whether the law applies to a particular set of facts.
Moreover, this Court is not necessarily bound by the
lower courts conclusions of law drawn from such
facts.[45]
AMNESTY:
We will deal first with the issue of tax amnesty.
Section 1 of P.D. 67[46] provides:
I. In all cases of voluntary disclosures of
previously untaxed income and/or
wealth such as earnings, receipts, gifts,
bequests or any other acquisitions from any
source whatsoever which are taxable under
the National Internal Revenue Code, as
amended, realized here or abroad by
any taxpayer, natural or juridical; the
collection of all internal revenue taxes
including the increments or penalties or
account of non-payment as well as all civil,
criminal or administrative liabilities arising
from or incident to such disclosures under the
National Internal Revenue Code, the Revised
Penal Code, the Anti-Graft and Corrupt
Practices Act, the Revised Administrative
Code, the Civil Service laws and regulations,
laws and regulations on Immigration and
Deportation, or any other applicable law or
proclamation, are hereby condoned and, in
lieu thereof, a tax of ten (10%) per centum on
such previously untaxed income or wealth is
hereby imposed, subject to the following
conditions: (conditions omitted) [Emphasis
supplied].
The decree condones the collection of all internal
revenue taxes including the increments or penalties
or account of non-payment as well as all civil,
criminal or administrative liabilities arising from or
incident to (voluntary) disclosures under the NIRC of
previously untaxed income and/or wealth realized
here or abroad by any taxpayer, natural or juridical.

May the withholding agent, in such capacity, be

deemed a taxpayer for it to avail of the amnesty? An
income taxpayer covers all persons who derive
taxable income.[47] ANSCOR was assessed by
petitioner for deficiency withholding tax under
Section 53 and 54 of the 1939 Code. As such, it is
being held liable in its capacity as a withholding
agent and not in its personality as a taxpayer.
In the operation of the withholding tax system,
the withholding agent is the payor, a separate entity
acting no more than an agent of the government for
the collection of the tax[48] in order to ensure its
payments;[49] the payer is the taxpayer he is the
person subject to tax impose by law;[50] and the payee
is the taxing authority.[51] In other words, the
withholding agent is merely a tax collector, not a
taxpayer. Under the withholding system, however,
the agent-payor becomes a payee by fiction of law.
His (agent) liability is direct and independent from
the taxpayer,[52] because the income tax is still impose
on and due from the latter. The agent is not liable for
the tax as no wealth flowed into him he earned no
income. The Tax Code only makes the agent
personally liable for the tax[53] (c) 1939 Tax Code, as
amended by R.A. No. 2343 which provides in part
that xxx Every such person is made personally liable
for such tax xxx.53 arising from the breach of its
legal duty to withhold as distinguish from its duty to
pay tax since:
the governments cause of action against the
withholding agent is not for the collection of
income tax, but for the enforcement of the
withholding provision of Section 53 of the
Tax Code, compliance with which is
imposed on the withholding agent
and not upon the taxpayer.[54]
Not being a taxpayer, a withholding agent, like
ANSCOR in this transaction, is not protected by the
amnesty under the decree.
Codal provisions on withholding tax are mandatory
and must be complied with by the withholding agent.
[55]
The taxpayer should not answer for the nonperformance by the withholding agent of its legal
duty to withhold unless there is collusion or bad faith.
The former could not be deemed to have evaded the
tax had the withholding agent performed its duty.
This could be the situation for which the amnesty
decree was intended. Thus, to curtail tax evasion and
give tax evaders a chance to reform,[56] it was deemed
administratively feasible to grant tax amnesty in
certain instances. In addition, a tax amnesty, much
like a tax exemption, is never favored nor presumed
in law and if granted by a statute, the terms of the
amnesty like that of a tax exemption must be
construed strictly against the taxpayer and liberally in
favor of the taxing authority.[57] The rule
on strictissimi juris equally applies.[58] So that, any
doubt in the application of an amnesty law/decree
should be resolved in favor of the taxing authority.

Furthermore, ANSCORs claim of amnesty

cannot prosper. The implementing rules of P.D. 370
which expanded amnesty on previously untaxed
income under P.D. 23 is very explicit, to wit:
Section 4. Cases not covered by amnesty. The
following cases are not covered by the amnesty
subject of these regulations:
xxx xxx xxx
(2) Tax liabilities with or without assessments, on
withholding tax at source provided under Sections 53
and 54 of the National Internal Revenue Code, as
amended;[59]
ANSCOR was assessed under Sections 53 and 54 of
the 1939 Tax Code. Thus, by specific provision of
law, it is not covered by the amnesty.
TAX ON STOCK DIVIDENDS
General Rule

Section 83(b) of the 1939 NIRC was taken from

Section 115(g)(1) of the U.S. Revenue Code of 1928.
[60]
It laid down the general rule known as the
proportionate test[61] wherein stock dividends once
issued form part of the capital and, thus, subject to
income tax.[62] Specifically, the general rule states
that:
A stock dividend representing the transfer of surplus
to capital account shall not be subject to tax.
Having been derived from a foreign law, resort
to the jurisprudence of its origin may shed light.
Under the US Revenue Code, this provision
originally referred to stock dividends only, without
any exception. Stock dividends, strictly speaking,
represent capital and do not constitute income to its
recipient.[63] So that the mere issuance thereof is not
yet subject to income tax[64] as they are nothing but
an enrichment through increase in value of capital
investment.[65] As capital, the stock dividends
postpone the realization of profits because the fund
represented by the new stock has been transferred
from surplus to capital and no longer available for
actual distribution.[66] Income in tax law is an amount
of money coming to a person within a specified time,
whether as payment for services, interest, or profit
from investment.[67] It means cash or its equivalent.
[68]
It is gain derived and severed from capital,[69] from
labor or from both combined[70] - so that to tax a
stock dividend would be to tax a capital increase
rather than the income.[71] In a loose sense, stock
dividends issued by the corporation, are considered
unrealized gain, and cannot be subjected to income
tax until that gain has been realized. Before the
realization, stock dividends are nothing but a
representation of an interest in the corporate

properties.[72] As capital, it is not yet subject to

income tax. It should be noted that capital and
income are different. Capital is wealth or fund;
whereas income is profit or gain or the flow of
wealth.[73] The determining factor for the imposition
of income tax is whether any gain or profit was
derived from a transaction.[74]
The Exception

However, if a corporation cancels

or redeems stock issued as a dividend at such time
and in such manner as to make the distribution and
cancellation or redemption, in whole or in
part, essentially equivalent to the distribution of
a taxable dividend, the amount so distributed in
redemption or cancellation of the stock shall be
considered as taxable income to the extent it
represents a distribution of earnings or
profits accumulated after March first, nineteen
hundred and thirteen. (Emphasis supplied).
In a response to the ruling of the American Supreme
Court in the case of Eisner v. Macomber[75] (that pro
rata stock dividends are not taxable income), the
exempting clause above quoted was added because
corporations found a loophole in the original
provision. They resorted to devious means to
circumvent the law and evade the tax. Corporate
earnings would be distributed under the guise of its
initial capitalization by declaring the stock dividends
previously issued and later redeem said dividends by
paying cash to the stockholder. This process of
issuance-redemption amounts to a distribution of
taxable cash dividends which was just delayed so as
to escape the tax. It becomes a convenient technical
strategy to avoid the effects of taxation.
Thus, to plug the loophole the exempting clause was
added. It provides that the redemption or cancellation
of stock dividends, depending on the time and
manner it was made is essentially equivalent to a
distribution of taxable dividends, making the
proceeds thereof taxable income to the extent it
represents profits. The exception was designed to
prevent the issuance and cancellation or redemption
of stock dividends, which is fundamentally not
taxable, from being made use of as a device for the
actual distribution of cash dividends, which is
taxable.[76] Thus,
the provision had the obvious purpose of
preventing a corporation from avoiding
dividend tax treatment by distributing
earnings to its shareholders in two
transactions a pro rata stock dividend
followed by a pro rata redemption that would
have the same economic consequences as a
simple dividend.[77]

Although redemption and cancellation are generally

considered capital transactions, as such, they are not
subject to tax. However, it does not necessarily mean
that a shareholder may not realize a taxable gain
from such transactions.[78] Simply put, depending on
the circumstances, the proceeds of redemption of
stock dividends are essentially distribution of cash
dividends, which when paid becomes the absolute
property of the stockholder. Thereafter, the latter
becomes the exclusive owner thereof and can
exercise the freedom of choice[79] Having realized
gain from that redemption, the income earner cannot
escape income tax.[80]
As qualified by the phrase such time and in such
manner, the exception was not intended to
characterize as taxable dividend every distribution of
earnings arising from the redemption of stock
dividends.[81] So that, whether the amount distributed
in the redemption should be treated as the equivalent
of a taxable dividend is a question of fact,[82] which is
determinable on the basis of the particular facts of
the transaction in question.[83] No decisive test can be
used to determine the application of the exemption
under Section 83(b) The use of the words such
manner and essentially equivalent negative any idea
that a weighted formula can resolve a crucial issue
Should the distribution be treated as taxable
dividend.[84] On this aspect, American courts
developed certain recognized criteria, which includes
the following:[85]
1) the presence or absence of real business
purpose,
2) the amount of earnings and profits
available for the declaration of a regular
dividend and the corporations past record
with respect to the declaration of
dividends,
3) the effect of the distribution as compared
with the declaration of regular dividend,
4) the lapse of time between issuance and
redemption,[86]
5) the presence of a substantial surplus [87] and
a generous supply of cash which invites
suspicion as does a meager policy in
relation both to current earnings and
accumulated surplus.[88]
REDEMPTION AND CANCELLATION

For the exempting clause of Section 83(b) to

apply, it is indispensable that: (a) there is redemption
or cancellation; (b) the transaction involves stock
dividends and (c) the time and manner of the
transaction makes it essentially equivalent to a
distribution of taxable dividends. Of these, the most
important is the third.
Redemption is repurchase, a reacquisition of
stock by a corporation which issued the stock [89] in
exchange for property, whether or not the acquired

stock is cancelled, retired or held in the treasury.

[90]
Essentially, the corporation gets back some of its
stock, distributes cash or property to the shareholder
in payment for the stock, and continues in business as
before. The redemption of stock dividends previously
issued is used as a veil for the constructive
distribution of cash dividends. In the instant case,
there is no dispute that ANSCOR redeemed shares of
stocks from a stockholder (Don Andres) twice
(28,000 and 80,000 common shares). But where did
the shares redeemed come from? If its source is the
original capital subscriptions upon establishment of
the corporation or from initial capital investment in
an existing enterprise, its redemption to the
concurrent value of acquisition may not invite the
application of Sec. 83(b) under the 1939 Tax Code, as
it is not income but a mere return of capital. On the
contrary, if the redeemed shares are from stock
dividend declarations other than as initial capital
investment, the proceeds of the redemption is
additional wealth, for it is not merely a return of
capital but a gain thereon.
It is not the stock dividends but the proceeds of
its redemption that may be deemed as taxable
dividends. Here, it is undisputed that at the time of
the last redemption, the original common shares
owned by the estate were only 25,247.5.[91] This
means that from the total of 108,000 shares redeemed
from the estate, the balance of 82,752.5 (108,000 less
25,247.5) must have come from stock dividends.
Besides, in the absence of evidence to the contrary,
the Tax Code presumes that every distribution of
corporate property, in whole or in part, is made out of
corporate profits,[92] such as stock dividends. The
capital cannot be distributed in the form
of redemption of stock dividends without violating
the trust fund doctrine wherein the capital stock,
property and other assets of the corporation are
regarded as equity in trust for the payment of the
corporate creditors.[93] Once capital, it is always
capital.[94] That doctrine was intended for the
protection of corporate creditors.[95]
With respect to the third requisite, ANSCOR
redeemed stock dividends issued just 2 to 3 years
earlier. The time alone that lapsed from the issuance
to the redemption is not a sufficient indicator to
determine taxability. It is a must to consider the
factual circumstances as to the manner of both the
issuance and the redemption. The time element is a
factor to show a device to evade tax and the scheme
of cancelling or redeeming the same shares is a
method usually adopted to accomplish the
end sought.[96] Was this transaction used as a
continuing plan, device or artifice to evade payment
of tax? It is necessary to determine the net effect of
the transaction between the shareholder-income
taxpayer and the acquiring (redeeming) corporation.
[97]
The net effect test is not evidence or testimony to
be considered; it is rather an inference to be drawn or
a conclusion to be reached.[98] It is also important to
know whether the issuance of stock dividends was

dictated by legitimate business reasons, the presence

of which might negate a tax evasion plan.[99]
The issuance of stock dividends and its
subsequent redemption must be separate, distinct,
and not related, for the redemption to be considered a
legitimate tax scheme.[100] Redemption cannot be
used as a cloak to distribute corporate earnings.
[101]
Otherwise, the apparent intention to avoid tax
becomes doubtful as the intention to evade becomes
manifest. It has been ruled that:
[A]n operation with no business or corporate purpose
is a mere devise which put on the form of a corporate
reorganization as a disguise for concealing its real
character, and the sole object and accomplishment of
which was the consummation of a preconceived plan,
not to reorganize a business or any part of a business,
but to transfer a parcel of corporate shares to a
stockholder.[102]
Depending on each case, the exempting provision of
Sec. 83(b) of the 1939 Code may not be applicable if
the redeemed shares were issued with bona
fide business purpose,[103] which is judged after each
and every step of the transaction have been
considered and the whole transaction does not
amount to a tax evasion scheme.
ANSCOR invoked two reasons to justify
the redemptions (1) the alleged filipinization
program and (2) the reduction of foreign exchange
remittances in case cash dividends are declared. The
Court is not concerned with the wisdom of these
purposes but on their relevance to the whole
transaction which can be inferred from the outcome
thereof. Again, it is the net effect rather than the
motives and plans of the taxpayer or his
corporation[104] that is the fundamental guide in
administering Sec. 83(b). This tax provision is aimed
at the result.[105] It also applies even if at the time of
the issuance of the stock dividend, there was no
intention to redeem it as a means of distributing
profit or avoiding tax on dividends.[106] The existence
of legitimate business purposes in support of
the redemption of stock dividends is immaterial in
income taxation. It has no relevance in determining
dividend equivalence.[107] Such purposes may be
material only upon the issuance of the stock
dividends. The test of taxability under the exempting
clause, when it provides such time and manner as
would make the redemption essentially equivalent to
the distribution of a taxable dividend, is whether the
redemption resulted into a flow of wealth. If no
wealth is realized from the redemption, there may not
be a dividend equivalence treatment. In the metaphor
of Eisner v. Macomber, income is not deemed realize
until the fruit has fallen or been plucked from the
tree.
The three elements in the imposition of income
tax are: (1) there must be gain or profit, (2) that the
gain or profit is realized or received, actually or

constructively,[108] and (3) it is not exempted by law

or treaty from income tax. Any business purpose as to
why or how the income was earned by the taxpayer is
not a requirement. Income tax is assessed on income
received from any property, activity or service that
produces the income because the Tax Code stands as
an indifferent neutral party on the matter of where
income comes from.[109]
As stated above, the test of taxability under the
exempting clause of Section 83(b) is, whether income
was realized through the redemption of stock
dividends. The redemption converts into money the
stock dividends which become a realized profit or
gain and consequently, the stockholders separate
property.[110] Profits derived from the capital invested
cannot escape income tax. As realized income, the
proceeds of the redeemed stock dividends can be
reached by income taxation regardless of the
existence of any business purpose for the redemption.
Otherwise, to rule that the said proceeds are exempt
from income tax when the redemption is supported
by legitimate business reasons would defeat the very
purpose of imposing tax on income. Such argument
would open the door for income earners not to pay
tax so long as the person from whom the income was
derived has legitimate business reasons. In other
words, the payment of tax under the exempting
clause of Section 83(b) would be made to depend not
on the income of the taxpayer but on the business
purposes of a third party (the corporation herein)
from whom the income was earned. This is absurd,
illogical and impractical considering that the Bureau
of Internal Revenue (BIR) would be pestered with
instances in determining the legitimacy of business
reasons that every income earner may interposed. It
is not administratively feasible and cannot therefore
be allowed.
The ruling in the American cases cited and relied
upon by ANSCOR that the redeemed shares are the
equivalent of dividend only if the shares were
not issued for genuine business purposes[111] or the
redeemed
shares
have
been issued by
a
[112]
corporation bona fide bears no relevance in
determining the non-taxability of the proceeds of
redemption. ANSCOR, relying heavily and applying
said cases, argued that so long as the redemption is
supported by valid corporate purposes the proceeds
are not subject to tax.[113] The adoption by the courts
below [114] of such argument is misleading if not
misplaced. A review of the cited American cases
shows that the presence or absence of genuine
business purposes may be material with respect to
the issuance or declaration of stock dividends but not
on its subsequent redemption. The issuance and the
redemption of stocks are two different transactions.
Although the existence of legitimate corporate
purposes may justify a corporations acquisition of its
own shares under Section 41 of the Corporation
Code,[115] such purposes cannot excuse the
stockholder from the effects of taxation arising from
the redemption. If the issuance of stock dividends is

part of a tax evasion plan and thus, without legitimate

business reasons the redemption becomes suspicious
which may call for the application of the exempting
clause. The substance of the whole transaction, not
its form, usually controls the tax consequences.[116]
The two purposes invoked by ANSCOR under
the facts of this case are no excuse for its tax liability.
First, the alleged filipinization plan cannot be
considered legitimate as it was not implemented until
the BIR started making assessments on the proceeds
of the redemption. Such corporate plan was not
stated in nor supported by any Board Resolution but
a mere afterthought interposed by the counsel of
ANSCOR. Being a separate entity, the corporation
can act only through its Board of Directors.[117] The
Board Resolutions authorizing the redemptions state
only one purpose reduction of foreign exchange
remittances in case cash dividends are declared. Not
even this purpose can be given credence. Records
show that despite the existence of enormous
corporate profits no cash dividend was ever declared
by ANSCOR from 1945 until the BIR started making
assessments in the early 1970s. Although a
corporation under certain exceptions, has the
prerogative when to issue dividends, yet when no
cash dividends was issued for about three decades,
this circumstance negates the legitimacy of
ANSCORs alleged purposes. Moreover, to issue
stock dividends is to increase the shareholdings of
ANSCORs foreign stockholders contrary to its
filipinization plan. This would also increase rather
than reduce their need for foreign exchange
remittances in case of cash dividend declaration,
considering that ANSCOR is a family corporation
where the majority shares at the time of redemptions
were held by Don Andres foreign heirs.
Secondly, assuming arguendo, that those
business purposes are legitimate, the same cannot be
a valid excuse for the imposition of tax. Otherwise,
the taxpayers liability to pay income tax would be
made to depend upon a third person who did not earn
the income being taxed. Furthermore, even if the said
purposes support the redemption and justify the
issuance of stock dividends, the same has no bearing
whatsoever on the imposition of the tax herein
assessed because the proceeds of the redemption are
deemed taxable dividends since it was shown that
income was generated therefrom.
Thirdly, ANSCOR argued that to treat as taxable
dividend the proceeds of the redeemed stock
dividends would be to impose on such stock an
undisclosed lien and would be extremely unfair to
intervening purchasers, i.e. those who buys the stock
dividends after their issuance.[118] Such argument,
however, bears no relevance in this case as no
intervening buyer is involved. And even if there is an
intervening buyer, it is necessary to look into the
factual milieu of the case if income was realized
from the transaction. Again, we reiterate that the
dividend equivalence test depends on such time and
manner of the transaction and its net effect. The

undisclosed lien[119] may be unfair to a subsequent

stock buyer who has no capital interest in the
company. But the unfairness may not be true to an
original subscriber like Don Andres, who holds stock
dividends as gains from his investments. The
subsequent buyer who buys stock dividends is
investing capital. It just so happen that what he
bought is stock dividends. The effect of its (stock
dividends) redemption from that subsequent buyer is
merely to return his capital subscription, which is
income if redeemed from the original subscriber.
After considering the manner and the
circumstances by which the issuance and redemption
of stock dividends were made, there is no other
conclusion but that the proceeds thereof are
essentially considered equivalent to a distribution of
taxable dividends. As taxable dividend under Section
83(b), it is part of the entire income subject to tax
under Section 22 in relation to Section 21[120] of the
1939 Code. Moreover, under Section 29(a) of said
Code, dividends are included in gross income. As
income, it is subject to income tax which is required
to be withheld at source. The 1997 Tax Code may
have altered the situation but it does not change this
disposition.
EXCHANGE OF COMMON WITH
PREFERRED SHARES[121]
Exchange is an act of taking or giving one thing
for another[122] involving reciprocal transfer[123] and is
generally considered as a taxable transaction. The
exchange of common stocks with preferred stocks, or
preferred for common or a combination of either for
both, may not produce a recognized gain or loss, so
long as the provisions of Section 83(b) is not
applicable. This is true in a trade between two (2)
persons as well as a trade between a stockholder and
a corporation. In general, this trade must be parts of
merger, transfer to controlled corporation, corporate
acquisitions or corporate reorganizations. No taxable
gain or loss may be recognized on exchange of
property,
stock
or
securities
related
to
reorganizations.[124]
Both the Tax Court and the Court of Appeals
found that ANSCOR reclassified its shares into
common and preferred, and that parts of the common
shares of the Don Andres estate and all of Doa
Carmens shares were exchanged for the whole 150,
000 preferred shares. Thereafter, both the Don
Andres estate and Doa Carmen remained as corporate
subscribers except that their subscriptions now
include preferred shares. There was no change in
their proportional interest after the exchange. There
was no cash flow. Both stocks had the same par
value. Under the facts herein, any difference in their
market value would be immaterial at the time of
exchange because no income is yet realized it was a
mere corporate paper transaction. It would have been

different, if the exchange transaction resulted into a

flow of wealth, in which case income tax may be
imposed.[125]
Reclassification of shares does not always bring
any substantial alteration in the subscribers
proportional interest. But the exchange is different
there would be a shifting of the balance of stock
features, like priority in dividend declarations or
absence of voting rights. Yet neither the
reclassification nor exchange per se, yields realize
income for tax purposes. A common stock represents
the residual ownership interest in the corporation. It
is a basic class of stock ordinarily and usually issued
without extraordinary rights or privileges and entitles
the shareholder to a pro rata division of profits.
[126]
Preferred stocks are those which entitle the
shareholder to some priority on dividends and asset
distribution.[127]
Both shares are part of the corporations capital
stock. Both stockholders are no different from
ordinary investors who take on the same investment
risks. Preferred and common shareholders participate
in the same venture, willing to share in the profits
and losses of the enterprise.[128] Moreover, under the
doctrine of equality of shares all stocks issued by the
corporation are presumed equal with the same
privileges and liabilities, provided that the Articles of
Incorporation is silent on such differences.[129] In this
case, the exchange of shares, without more, produces
no realized income to the subscriber. There is only a
modification of the subscribers rights and privileges
- which is not a flow of wealth for tax purposes. The
issue of taxable dividend may arise only once a
subscriber disposes of his entire interest and not
when there is still maintenance of proprietary
interest.[130]
WHEREFORE, premises considered, the
decision of the Court of Appeals is MODIFIED in
that ANSCORs redemption of 82,752.5 stock
dividends is herein considered as essentially
equivalent to a distribution of taxable dividends for
which it is LIABLE for the withholding tax-atsource. The decision is AFFIRMED in all other
respects.
SO ORDERED.

15.

PEOPLE
OF
THE
PHILIPPINES, plaintiff-appellee,
vs. FERNANDO
VIOVICENTE
y
GONDESA, accused-appellant.
DECISION

MENDOZA, J.:
In an information dated August 8, 1991 accusedappellant Fernando Viovicente y Gondesa, together
with John Doe, Peter Doe, and Mike Doe, was
charged with murder, as follows:[1]
That on or about the 21st day of July, 1991, in
Quezon City, Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused,
armed with a bolo and an icepick, conspiring
together, confederating with and mutually helping
one another, did, then and there, wilfully, unlawfully
and feloniously with intent to kill, with treachery and
evident premeditation and by taking advantage of
superior strength, attack, assault and employ personal
violence upon the person of FERNANDO
HOYOHOY Y VENTURA, by then and there,
stabbing him on the chest with the use of said bolo
and icepick, thereby inflicting upon him serious and
mortal wounds which were the direct and immediate
cause of his untimely death, to the damage and
prejudice of the heirs of said Fernando Hoyohoy y
Ventura, in such amount as may be awarded under
the provisions of the Civil Code.
CONTRARY TO LAW.
Fernando Flores testified that while he was on his
way to work at 6 a.m. on July 21, 1991, he saw his
co-worker Fernando Hoyohoy attacked by four
men. Hoyohoy was buying cigarettes at a store
located in an alley of Tatalon Street, Quezon City
when, according to Flores, two persons emerged
from behind the store. Flores identified the two as
accused-appellant Fernando Viovicente, alias Macoy,
and one Balweg. The two approached the victim and
seized him by the shoulders (accused-appellant held
the victims right shoulder, while Balweg held him by

the left). Then, Flores said, two other persons, whom

he identified as Maning and Duras, came up to the
victim and stabbed him in the left side of the
chest. The victim was struck first by Maning with a
bolo, followed by Duras who stabbed Hoyohoy with
an icepick.[2] The four then fled from the scene.
During the whole incident, Fernando Flores was
ten steps away from the victim.[3] Flores testified that
he knew accused-appellant because both of them had
worked in a department store in Sta. Mesa.[4] He said
that two weeks after the incident, his sister saw
accused-appellant in their neighborhood and told
him. The two of them then informed the victims
brother who then tried to apprehend accusedappellant. Accused-appellant resisted and drew his
knife, but neighbors joined in subduing him. Later,
they turned him over to the barangay captain. [5] On
August 6, 1991, Flores gave a statement regarding
the incident to the police.[6]
Tomas Hoyohoy, the victims brother,
testified[7] that after Fernando had been stabbed he
ran to their house and identified Maning Viovicente,
Duras Viovicente, accused-appellant Fernando
Macoy Viovicente, and Romero Balweg Obando as
his assailants. The four were neighbors of theirs in
Tatalon.
Fernando Hoyohoy was taken to the National
Orthopedic Hospital where he died at 11 a.m. of the
same day (July 21, 1991). A death certificate[8] and
certificate of postmortem examination[9] were later
issued. For the victims funeral, the family incurred
P9,000.00 in expenses.[10]
Cpl. Iluminado Combalicer of the Galas Police
Sub-Station 4 testified[11] that, upon receipt of the
report of the incident, he went to the National
Orthopedic Hospital where he was able to talk to the
victim. This was at 8 a.m. of July 21, 1991. Hoyohoy
told him that he had been stabbed by Maning. Cpl.
Combalicer took down the victims statement and
made him sign it.[12] The pertinent portion of the
statement reads:
Tanong: Anong pangalan mo?
Sagot: Fernando Hoyohoy y Ventura, 25 taong
gulang, binata, empleyado, tubo sa
Manila, nakatira sa No. 11, Bicol
Brigade, Tatalon, Q.C.
02 T: Bakit ka narito sa hospital?
S: Sinaksak po ako ni Maning at
Duras roon ring nakatira sa
may likod ng bahay namin.
03 T: Anong dahilan at ikaw ay sinaksak?
S: Hindi ko po alam.
Accused-appellants defense was alibi.[13] He
claimed that on July 21, 1991, the day of the
incident, he was in Bataan. According to him, two
weeks later he returned to Manila because he did not

like his job in Bataan. He went to his mothers house

and, after eating, went to the house of his cousins,
Maning and Duras. It was there where he was
arrested. Accused-appellants
mother,
Filomena
Canlas, corroborated his alibi.[14]
The Regional Trial Court of Quezon City
(Branch 92)[15] convicted accused-appellant of murder
and sentenced him to 17 years, 4 months, and 1 day
of reclusion temporal, as minimum, to 20 years
of reclusion temporal, as maximum, and ordered him
to pay the heirs P9,000.00 as burial expenses,
P50,000.00 moral damages, and the costs. On appeal,
the Court of Appeals[16] thought the penalty should be
increased to reclusion perpetua because of the
absence of mitigating and aggravating circumstances
and, in accordance with Rule 124, 13, certified the
case to this Court for final review. The Court gave
accused-appellant the opportunity of filing an
additional appellants brief but he found it
unnecessary to do so. The case was therefore
submitted for resolution on the basis of the briefs of
the parties in the Court of Appeals and the record of
the trial court.
Accused-appellants brief contains the
following assignment of errors:
I
THE COURT A QUO ERRED IN GIVING
WEIGHT AND CREDENCE TO THE
TESTIMONIES OF THE PROSECUTION
WITNESSES AND IN DISREGARDING THE
THEORY OF THE DEFENSE.
II
THE COURT A QUO ERRED IN FINDING
ACCUSED-APPELLANT FERNANDO
VIOVICENTE GUILTY BEYOND REASONABLE
DOUBT OF THE OFFENSE CHARGED DESPITE
OF THE FAILURE OF THE VICTIM FERNANDO
HOYOHOY TO IDENTIFY ACCUSEDAPPELLANT AS ONE OF THE ASSAILANTS IN
HIS ANTE-MORTEM STATEMENT HE HAD
GIVEN TO THE POLICE INVESTIGATOR AT
THE HOSPITAL.
First. Accused-appellant contends that it was
error for the trial court to rely on the ante
mortem statement of the deceased which he gave to
his brother Tomas, in which the deceased pointed to
accused-appellant and Balweg as his assailants. He
argues that the alleged declaration cannot be
considered a dying declaration under Rule 130, 37 of
the Rules on Evidence because it was not in writing
and it was not immediately reported by Tomas
Hoyohoy to the authorities. Instead, according to
accused-appellant, the trial court should have
considered the statement (Exh. F) given by the victim
to Cpl. Combalicer also on the day of the incident,
July 21, 1991. In that statement, the victim pointed to

the brothers Maning Viovicente and Duras

Viovicente as his assailants. This contention is
without merit. The Revised Rules on Evidence do not
require that a dying declaration must be made in
writing to be admissible. Indeed, to impose such a
requirement would be to exclude many a statement
from a victim in extremis for want of paper and pen
at the critical moment. Instead Rule 130, 37[17] simply
requires
for
admissibility
of
an ante
mortem statement that (a) it must concern the crime
and the surrounding circumstances of the declarants
death; (b) at the time it was made, the declarant was
under a consciousness of impending death; (c) the
declarant was competent as a witness; and (d) the
declaration was offered in a criminal case for
homicide, murder, or parricide in which the decedent
was the victim.[18] These requisites have been met in
this case. First, Fernando Hoyohoys statement to his
brother Tomas concerns his death as the same refers
to the identity of his assailants. Second, he made the
declaration under consciousness of an impending
death considering the gravity of his wounds which in
fact caused his death several hours later. Third,
Fernando Hoyohoy was competent to testify in
court. And fourth, his dying declaration was offered
in a criminal prosecution for murder where he
himself was the victim.
Nor is there merit in the contention that because
Tomas Hoyohoy, to whom the alleged ante
mortem statement was given, reported it to the police
on August 5, 1991, after accused-appellant had been
arrested, it should be treated as suspect. Delay in
making a criminal accusation however does not
necessarily impair a witness credibility if such delay
is satisfactorily explained.[19] Tomas testified that he
knew Cpl. Combalicer had talked to his brother
Fernando at the hospital[20] implying that he did not
then make a statement because the matter was under
investigation.
Second. Actually, the trial courts decision is
anchored mainly on the testimony of Fernando
Flores. Flores was an eyewitness to the killing of
Fernando Hoyohoy. This witness pointed to accusedappellant and to three others (Balweg, Maning
Viovicente, and Duras Viovicente) as the assailants,
describing the part each played in the slaying of
Fernando Hoyohoy. Flores testified:
FISCAL REYES:
Q While you were along that Alley at Tatalon,
Quezon City, what happened if any, Mr.
Witness?
A I saw Fernando Hoyohoy buying cigarette.
Q What happened while he was buying cigarette?
A Four (4) persons went near him while he was
buying cigarette and two (2) held him by the
hand.

Q Mr. witness you said that Fernando Hoyohoy at

the time was buying cigarette where was he
facing at the time?
A He was facing the store.
Q How far were you from Fernando Hoyohoy?
A Ten (10) steps away.
Q You said that four (4) persons appeared and two
(2) held Fernando Hoyohoy by the shoulder,
from where did these two (2) come from?
A The two (2) persons came behind the store.
Q Who held Hoyohoy by the right shoulder if you
know, Mr. witness?
A Fernando Viovicente and Alias Balweg.
Q Only the right shoulder?
A Yes, Maam.
Q I am asking you the right shoulder?
A Fernando Viovicente.
Q And who held Hoyohoys left shoulder?
A Alias Balweg.
Q Do you know the complete name of Alias
Balweg?
A No, Maam, I do not know.
Q How about the other two (2) what did these two
(2) persons do to Fernando Hoyohoy at the
time?
A They were the ones who stabbed Fernando
Hoyohoy.
Q What were the names of the two (2) persons
who stabbed Fernando Hoyohoy?
A Maning and Duras.
Q Do you know the full name of these two (2)
persons?
A No, Maam.
Q What was Maning holding at the time?
A A bolo, Maam.
Q What was Duras holding?
A Icepick.
Q Where did Maning stab the victim Fernando
Hoyohoy?
A At the left chest.
Q Who stabbed first, Mr. witness?
A Maning.
Q And what did Duras do?
A He helped stabbed Fernando Hoyohoy.
Q With what weapon?

A Icepick.
Q You said that Fernando Viovicente was the one
who held Fernando Hoyohoy by the right
shoulder is that correct?
A Yes, Maam.
Q Is that Viovicente the same Viovicente who is
now the accused in this Court?
A Yes, Maam.
Q Will you please look around and if he is around
please point at him, Mr. witness?
A Witness pointing to a person who identified
himself as Fernando Viovicente.
Q Mr. witness you mentioned that these Duras and
Maning were brothers, is it not?
A Yes, Maam.
Q Do you know at least their family name?
A Viovicente.
Q Where are they residing if you know, Mr.
witness?
A They are living with their sisters.
Q Is Fernando Viovicente the one whom you
pointed in this courtroom a brother of Maning
and Duras?
A No Maam.
Q How many stabs did Fernando Hoyohoy receive
from these two persons?
A Two (2) stab wounds.
Q How many from Maning?
A One (1) stab.
Q How about from Duras?
A One, Maam.
Q What happened after these two (2) persons
Maning and Duras stabbed Fernando
Hoyohoy?
A They ran away.20
Accused-appellant claims that Flores was biased,
being a neighbor of the deceased. But so were the
Viovicentes and Romero Obando his neighbors. No
ill motive on his part that would impel Flores to
testify falsely against accused-appellant has been
shown. Consequently, the trial courts finding as to his
testimony is entitled to great respect. Indeed unless
the trial judge plainly overlooked certain facts of
substance and value which, if considered, might
affect the result of the case, his assessment of the
credibility of witnesses must be respected.[21]Flores
positive identification of accused-appellant should be
given greater credence than the latters bare and selfserving denials.[22]

Third. The foregoing evidence unequivocally

showing accused-appellant as among those who
conspired to kill Fernando Hoyohoy is dispositive of
his defense that he was in Bataan on the day of the
crime. It is settled that alibi cannot prevail against
positive identification of the accused. In addition,
accused-appellants defense is weakened by the
inconsistencies between his testimony and his
mothers. Accused-appellant testified that he departed
for Bataan on a Sunday (July 21, 1991) at past 8:00
in the morning with his cousin Lucring, taking a ride
in the car of his employer.[23] But his mother testified
that accused-appellant and Lucring left for Bataan at
noontime on July 18, 1991 and they left by bus.[24]
The Court of Appeals correctly held accusedappellant guilty of murder and since there was neither
mitigating nor aggravating circumstance, the penalty
should be reclusion perpetua.No reason was really
given by the trial court for meting out on accusedappellant the penalty of 17 years, 4 months, and 1
day of reclusion temporal, as minimum, to 20 years
of reclusion temporal, as maximum. However, the
award of the damages made by the trial court, as
affirmed by the Court of Appeals, must be revised. In
addition to the amount of P9,000.00 for burial
expenses, which should be treated as actual damages,
and the amount of P50,000.00 as moral damages,
accused-appellant must be made to pay indemnity in
the amount of P50,000.00.[25]
WHEREFORE, the decision appealed from is
AFFIRMED with the modification that accusedappellant is sentenced to suffer the penalty
of reclusion perpetua and ordered to pay to the heirs
of Fernando Hoyohoy the sum of P9,000.00, as
actual damages, P50,000.00, as moral damages,
and P50,000.00, as civil indemnity for the death of
Fernando Hoyohoy.
SO ORDERED.