G.R. No. 106632 October 9, 1997 DORIS TERESA HO, petitioner, vs.

PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and the SANDIGANBAYAN (Second Division), respondents. G.R. No. 106678 October 9, 1997 ROLANDO S. NARCISO, petitioner, vs. PEOPLE OF THE PHILIPPINES (represented by the Office of the Special Prosecutor of the Ombudsman) and the SANDIGANBAYAN (Second Division), respondents.

(petitioners in G.R. Nos. 106632 and 106678, respectively), Anthony Marden, Arsenio Benjamin Santos and Leonardo Odoo. The complaint was for alleged violation of Section 3 (g) of Republic Act 3019 3 prohibiting a public officer from entering into any contract or transaction on behalf of the government if it is manifestly and grossly disadvantageous to the latter, whether or not the public officer profited or will profit thereby. After due notice, all respondents therein filed their respective counter-affidavits with supporting documents. On January 8, 1992, Graft Investigation Officer Titus P. Labrador (hereafter, "GIO Labrador") submitted his resolution 4 with the following recommendations: WHEREFORE, all premises considered, it is respectfully recommended that an information for violation of Section 3 (g) of R.A. 3019 as amended be filed against respondent Rolando S. Narciso before the Sandiganbayan. It is likewise recommending that the case against the other respondents be DISMISSED for insufficiency of evidence. However, after a review of the above resolution, Special Prosecution Officer Leonardo P. Tamayo (hereafter "SPO Tamayo") recommended that both Rolando Narciso and Doris Teresa Ho be charged with violation of Section 3 (e) of R.A. 3019. The resolution of GIO Labrador, as modified by the memorandum 5 of SPO Tamayo, was approved by Ombudsman Conrado M. Vasquez on May 5, 1992. Thus, herein petitioners were charged accordingly before the Sandiganbayan in an information 6 filed on May 18, 1992. Attached to the information were the resolution of GIO Labrador and the memorandum of SPO Tamayo. The said information reads: The undersigned Special Prosecution Officer III, Office of the Special Prosecutor, hereby accuses ROLANDO NARCISO and DORIS TERESA HO, President of National Marine

PANGANIBAN, J.: May a judge issue a warrant of arrest solely on the basis of the report and recommendation of the investigating prosecutor, without personally determining probable cause by independently examining sufficient evidence submitted by the parties during the preliminary investigation? The Case This is the main question raised in these two consolidated petitions for certiorari under Rule 65 of the Rules of Court challenging the Sandiganbayan's August 25, 1992 Resolution 1 which answered the said query in the affirmative. The Facts Both petitions have the same factual backdrop. On August 8, 1991, the Anti-Graft League of the Philippines, represented by its chief prosecutor and investigator, Atty. Reynaldo L. Bagatsing, filed with the Office of the Ombudsman a complaint 2 against Doris Teresa Ho, Rolando S. Narciso

Corporation, of violation of Section 3(e) of RA 3019, as amended, committed as follows: That on or about April 4, 1989, and for sometime prior and/or subsequent thereto, in the City of Manila, Philippines and within the jurisdiction of this Honorable Court, the abovenamed accused ROLANDO NARCISO, a public officer, being then the Vice-President of the National Steel Corporation (NSC), a government-owned or controlled corporation organized and operating under the Philippine laws, and DORIS TERESA HO, a private individual and then the President of National Marine Corporation (NMC), a private corporation organized and operating under our Corporation law, conspiring and confederating with one another, did then and there wilfully, unlawfully and criminally, with evident bad faith and through manifest partiality, cause undue injury to the National Steel Corporation (NSC), by entering without legal justification into a negotiated contract of affreightment disadvantageous to the NSC for the haulage of its products at the rate of P129.50/MT, from Iligan City to Manila, despite their full knowledge that the rate they have agreed upon was much higher than those offered by the Loadstar Shipping Company, Inc. (LSCI) and Premier Shipping Lines, Inc. (PSLI), in the amounts of P109.56 and P123.00 per Metric Ton, respectively, in the public bidding held on June 30, 1988, thereby giving unwarranted benefits to the National Marine Corporation, in the total sum of One Million One Hundred Sixteen Thousand Fifty Two Pesos and Seventy Five Centavos (P1,116,052.75), Philippine Currency, to the pecuniary damage and prejudice of the NSC in the aforestated sum. The said offense was committed by Rolando S. Narciso in the performance of his official functions as Vice-President of the National Steel Corporation. CONTRARY TO LAW. Acting on the foregoing information, the Sandiganbayan issued the now questioned warrant of arrest against

Petitioners Ho and Narciso. Petitioner Ho initially questioned the issuance thereof in an "Urgent Motion to Recall Warrant of Arrest/Motion for Reconsideration" which was adopted by Petitioner Narciso. They alleged that the Sandiganbayan, in determining probable cause for the issuance of the warrant for their arrest, merely relied on the information and the resolution attached thereto, filed by the Ombudsman without other supporting evidence, in violation of the requirements of Section 2, Article III of the Constitution, and settled jurisprudence. Respondent Sandiganbayan denied said motion in the challenged Resolution. It ratiocinated in this wise. Considering, therefore, that this Court did not rely solely on the certification appearing in the information in this case in the determination of whether probable cause exists to justify the issuance of the warrant of arrest but also on the basis predominantly shown by the facts and evidence appearing in the resolution/memorandum of responsible investigators/prosecutors, then the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so, when the information, as filed, clearly shows that it is sufficient in form and substance based on the facts and evidence adduced by both parties during preliminary investigation. To require this Court to have the entire record of the preliminary investigation to be produced before it, including the evidence submitted by the complainant and the accusedrespondents, would appear to be an exercise in futility. Thus, these petitions. The Issue Petitioner Ho raises this sole issue: May a judge determine probable cause and issue [a] warrant of arrest solely on the basis of the resolution of the prosecutor (in the instant case, the Office of the Special Prosecutor of the Ombudsman) who conducted the preliminary

investigation, without having before him any of the evidence (such as complainant's affidavit, respondent's counter-affidavit, exhibits, etc.) which may have been submitted at the preliminary investigation? 7 In his separate petition, Rolando S. Narciso adopts the foregoing and raised no other distinct issue. Petitioners Ho and Narciso similarly contend that a judge, in personally determining the existence of probable cause, must have before him sufficient evidence submitted by the parties, other than the information filed by the investigating prosecutor, to support his conclusion and justify the issuance of an arrest warrant. Such evidence should not be "merely described in a prosecutor's resolution." Citing People vs. Inting, 8 petitioners insist that the judge "must have before him 'the report, the affidavits, the transcripts of stenographic notes (if any), and all other supporting documents which are material in assisting the judge to make his determination.'" The Court's Ruling The petitions are meritorious. The pertinent provision of the Constitution reads: Sec. 2 [Article III]. 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. (Emphasis supplied.) In explaining the object and import of the aforequoted constitutional mandate, particularly the power and the authority

of judges to issue warrants of arrest, the Court elucidated in Soliven vs. Makasiar 9: What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examined the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the supporting documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant of arrest; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusion as to the existence of probable cause. 10 [emphasis supplied] We should stress that the 1987 Constitution requires the judge to determine probable cause "personally." The word "personally" does not appear in the corresponding provisions of our previous Constitutions. This emphasis shows the present Constitution's intent to place a greater degree of responsibility upon trial judges than that imposed under the previous Charters. While affirming Soliven, People vs. Inting 11 elaborated on what "determination of probable cause" entails, differentiating the judge's object or goal from that of the prosecutor's. First, the determination of probable cause is a function of the Judge. It is not for the Provincial Fiscal or Prosecutor nor for the Election Supervisor to ascertain. Only the Judge and the Judge alone makes this determination. Second, the preliminary inquiry made by a Prosecutor does not bind the Judge. It merely assists him to make the determination of probable cause. The Judge does not have to follow what the Prosecutor presents to him. By itself, the

Prosecutor's certification of probable cause is ineffectual. It is the report, the affidavits the transcripts of stenographic notes (if any), and all other supporting documents behind the Prosecutor's certification which are material in assisting the Judge to make hisdetermination. And third, Judges and Prosecutors alike should distinguish the preliminary inquiry which determines probable cause for the issuance of a warrant of arrest from the preliminary investigation proper which ascertains whether the offender should be held for trial or released. Even if the two inquiries are conducted in the course of one and the same proceeding, there should be no confusion about the objectives. The determination of probable cause for the warrant of arrest is made by the Judge. The preliminary investigation proper whether or not there is reasonable ground to believe that the accused is guilty of the offense charged and, therefore, whether or not he should be subjected to the expense, rigors and embarrassment of trial is the function of the Prosecutor. 12 And clarifying the statement in People vs. Delgado 13 that the "trial court may rely on the resolution of the COMELEC to file the information, by the same token that it may rely on the certification made by the prosecutor who conducted the preliminary investigation, in the issuance of the warrant of arrest" this Court underscored inLim Sr. vs. Felix 14 that "[r]eliance on the COMELEC resolution or the Prosecutor's certification presupposes that the records of either the COMELEC or the Prosecutor have been submitted to the Judge and he relies on the certification or resolution because the records of the investigation sustain the recommendation." We added, "The warrant issues not on the strength of the certification standing along but because of the records which sustain it." Summing up, the Court said: We reiterate the ruling in Soliven vs. Makasiar that the Judge does not have to personally examine the complainant and his

witnesses. The Prosecutor can perform the same functions as a commissioner for the taking of the evidence. However, there should be a report and necessary documents supporting the Fiscal's bare certification. All of these should be before the Judge. The extent of the Judge's personal examination of the report and its annexes depends on the circumstances of each case. We cannot determine beforehand how cursory or exhaustive the Judge's examination should be. The Judge has to exercise sound discretion for, after all, the personal determination is vested in the Judge by the Constitution. It can be as brief or as detailed as the circumstances of each case require. To be sure, the Judge must go beyond the Prosecutor's certification and investigation report whenever necessary. He should call for [the] complainant and [the] witnesses themselves to answer the court's probing questions when the circumstances of the case so require. 15 [emphasis supplied] The above rulings in Soliven, Inting and Lim Sr. were iterated in Allado vs. Diokno 16 where we explained again what probable cause means. Probable cause for the issuance of a warrant of arrest is the existence of such facts and circumstances that would lead a reasonably discreet and prudent person to believe that an offense has been committed by the person sought to be arrested. 17 Hence, the judge, before issuing a warrant of arrest, "must satisfy himself that based on the evidence submitted there is sufficient proof that a crime has been committed and that the person to be arrested is probably guilty thereof." 18 At this stage of the criminal proceeding, the judge is not yet tasked to review in detail the evidence submitted during the preliminary investigation. It is sufficient that he personally evaluates such evidence in determining probable cause. 19 In Webb vs. De Leon, 20 we stressed that the judge merely determines the probability, not the certainty, of guilt of the accused and, in doing so, he need not conduct a de novo hearing. He simply personally reviews

the prosecutor's initial determination finding probable cause to see if it is supported by substantial evidence. In the recent case of Roberts Jr. vs. Court of Appeals, 21 this Court's application of the dictum laid down in Soliven affirmed and fortified in Inting, Lim Sr., Allado and Webb should lay to rest the issue raised in the instant petitions. In Robets Jr., this Court, through Mr. Justice Hilario G. Davide, Jr., set aside the order of the respondent judge directing inter alia the issuance of warrants of arrest against the accused, reasoning that said judge did not personally determine the existence of probable cause, since he had "only the information, amended information, and Joint Resolution as bases thereof. He did not have the records or evidence supporting the prosecutor's finding of probable cause." In like manner, herein Respondent Sandiganbayan had only the information filed by the Office of the Ombudsman, the thirteen-page resolution of the investigating officer and the three-page memorandum of the prosecution officer, when it issued the warrant of arrest against the petitioners. The latter two documents/reports even had dissimilar recommendations the first indicting only Petitioner Narciso, the second including Petitioner Ho. This alone should have prompted the public respondent to verify, in the records and other documents submitted by the parties during the preliminary investigation, whether there was sufficient evidence to sustain the Ombudsman's action charging both petitioners with violation of Sec. 3(e) of Anti-Graft law. But in its initial justification of the issuance of the warrant, the Sandiganbayan simply said: JUSTICE ESCAREAL: xxx xxx xxx But in this particular case we believe there is prima facie case based on our examination of the resolution because we

believe, we think the Ombudsman will not approve a resolution just like that, without evidence to back it up. 22 In attempting to further justify its challenged action, the public respondent explained in its assailed Resolution. In the instant case, there are attached to the information, two (2) Memorandum/Resolution (sic) emanating from the Offices of the Ombudsman and the Special Prosecutor (Pp. 4-6, 7-19, respectively, Record) which clearly and indubitably established, firstly, the conduct of a due and proper preliminary investigation, secondly, the approval by proper officials clothed with statutory authority; and thirdly, the determination and ascertainment of probable caused based on the documentary evidence submitted by the complainant (AntiGraft League of the Philippines), foremost among which is the Contract of Affreightment entered into between National Steel Corporation (NSC), and National Marine Corporation (NMC) and the COA-NSC audit report, together with the counteraffidavits of accused Rolando Narciso and NMC officials, among whom is accused-movant. Outlined in detail in the aforesaid Resolution of Titus P. Labrador, Graft Investigation Officer II, which was reviewed by Attys. Romeo I. Tan and Arturo Mojica, Director, Community Coordination Bureau and Assistant Ombudsman, PACPO, [respectively,] are the facts leading to the questioned transaction between NSC and NMC, together with an evaluation of the propriety and legality of the bidding process involved therein and which revealed that there were supposed non-compliance with proper bidding procedures. GIO Labrador's findings and recommendations, extensively set out in his thirteen-page resolution, is complemented by the three-page Memorandum of Special Prosecution Officer II Leonardo P. Tamayo, both of which meticulously delved into the merits and demerits of the evidence presented by the complainant and accusedrespondents and which resulted in their respective recommendation which led the Honorable Conrado M. Vasquez to approve the recommendations of Deputy Special

Prosecutor Jose de G. Ferrer and Special Prosecutor Aniano A. Desierto for the filling of the information in the case at bar. xxx xxx xxx Considering, therefore, that this Court did not rely solely on the certification appearing in the information in this case in the determination of whether probable cause exists to justify the issuance of the warrant of arrest but also on the basis predominantly shown by the facts and evidence appearing in the resolution/memorandum of responsible investigators/prosecutors, then the recall of the warrant of arrest, or the reconsideration sought for, cannot be granted. More so, when the information, as filed, clearly shows that it is sufficient in form and substance based on the facts and evidence adduced by both parties during the preliminary investigation. To require this Court to have the entire record of the preliminary investigation to be produced before it, including the evidence submitted by the complainant and the accusedrespondents, would appear to be an exercise in futility. 23 In light of the aforecited decisions of this Court, such justification cannot be upheld. Lest we be too repetitive, we only wish to emphasize three vital matters once more: First, as held in Inting, the determination of probable cause by the prosecutor is for a purpose different from that which is to be made by the judge. Whether there is reasonable ground to believe that the accused is guilty of the offense charged and should be held for trial is what the prosecutor passes upon. The judge, on the other hand, determines whether a warrant of arrest should be issued against the accused, i.e. whether there is a necessity for placing him under immediate custody in order not to frustrate the ends of justice. 24 Thus, even if both should base their findings on one and the same proceeding or evidence, there should be no confusion as to their distinct objectives.

Second, since their objectives are different, the judge cannot rely solely on the report of the prosecutor in finding probable cause to justify the issuance of a warrant of arrest. Obviously and understandably, the contents of the prosecutor's report will support his own conclusion that there is reason to charge the accused of an offense and hold him for trial. However, the judge must decide independently. Hence, he must have supporting evidence, other than the prosecutor's bare report, upon which to legally sustain his own findings on the existence (or nonexistence) of probable cause to issue an arrest order. This responsibility of determining personally and independently the existence or nonexistence of probable cause is lodged in him by no less than the most basic law of the land. Parenthetically, the prosecutor could ease the burden of the judge and speed up the litigation process by forwarding to the latter not only the information and his bare resolution finding probable cause, but also so much of the records and the evidence on hand as to enable His Honor to make his personal and separate judicial finding on whether to issue a warrant of arrest. 25 Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. 26 We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficientsupporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutor's recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance

of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution we repeat, commands the judge topersonally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer. True, in Webb vs. De Leon, we found that "the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there [was] probable cause to issue warrants of arrest against petitioners." This statement may have been wrongly construed by the public respondent to mean that the narration or description of portions of the evidence in the prosecutor's report may serve as sufficient basis to make its own independent judgment. What it should bear in mind, however, is that, aside from the 26-page report of the DOJ panel, the sworn statements of three witnesses and counter-affidavits of the petitioners in Webb were also submitted to the trial court, and the latter is presumed to have reviewed these documents as well, prior to its issuance of the warrants of arrest. In the instant case, the public respondent relied fully and completely upon the resolution of the graft investigation officer and the memorandum of the reviewing prosecutor, attached to the information filed before it, and its conjecture that the Ombudsman would not have approved their recommendation without supporting evidence. It had no other documents from either the complainant (the Anti-Graft League of the Philippines) or the People from which to sustain its own conclusion that probable cause exists. Clearly and ineluctably, Respondent Court's findings of "the conduct of a due and proper preliminary investigation" and "the approval by the proper officials clothed with statutory authority" are not equivalent to the independent and personal responsibility required by the Constitution and settled jurisprudence. At least some of the documentary evidence mentioned (Contract of

Affreightment between National Steel Corporation and National Marine Corporation, the COA-NSC audit report, and counter-affidavits of Rolando Narciso and NMC officials), upon which the investigating officials of the Ombudsman reportedly ascertained the existence of probable cause, should have been physically present before the public respondent for its examination, to enable it to determine on its own whether there is substantial evidence to support the finding of probable cause. But is stubbornly stood pat on its position that it had essentially complied with its responsibility. Indisputably, however, the procedure it undertook contravenes the Constitution and settled jurisprudence. Respondent Court palpably committed grave abuse of discretion in ipso facto issuing the challenged warrant of arrest on the sole basis of the prosecutor's findings and recommendation, and without determining on its own the issue of probable cause based on evidence other than such bare findings and recommendation. WHEREFORE, the petitions are GRANTED and the assailed Resolution is SET ASIDE. The warrant issued by the Sandiganbayan (Second Division) on May 20, 1992 in Case No. 17674 for the arrest of Petitioners Doris Teresa Ho and Rolando Narciso is hereby declared NULL AND VOID. SECOND DIVISION G.R. No. 150185 : May 27, 2004 TERESITA TANGHAL OKABE, Petitioner, v. HON. PEDRO DE LEON GUTIERREZ, in his capacity as Presiding Judge of RTC, Pasay City, Branch 119; PEOPLE OF THE PHILIPPINES; and CECILIA MARUYAMA, Respondents. DECISION CALLEJO, SR., J.: Before us is a petition for review on certiorari, under Rule 45 of the Rules of Court, as amended, that part of the Decision1 of

the Court of Appeals in CA-G.R. SP No. 60732 dismissing her petition for certiorari under Rule 65 of the Rules of Court, as amended, for the nullification of the August 25 and 28, 2000 Orders of the respondent judge in Criminal Case No. 00-0749. The Antecedents Cecilia Maruyama executed a fifteen-page affidavitcomplaint2 and filed the same with the Office of the City Prosecutor of Pasay City, on December 29, 1999, charging Lorna Tanghal and petitioner Teresita Tanghal Okabe, a.k.a. Shiela Okabe, with estafa. In her affidavit, Maruyama alleged, inter alia, that on December 11, 1998, she entrusted Y11,410,000 with the peso equivalent ofP3,993,500 to the petitioner, who was engaged in the business of door-todoor delivery from Japan to the Philippines. It was alleged that the petitioner failed to deliver the money as agreed upon, and, at first, denied receiving the said amount but later returned only US$1,000 through Lorna Tanghal. During the preliminary investigation, the complainant, respondent Maruyama, submitted the affidavit of her witnesses, namely, Hermogena Santiago, Wilma Setsu and Marilette G. Izumiya and other documentary evidence. In her affidavit, Setsu alleged that the money which was entrusted to the petitioner for delivery to the Philippines belonged to her and her sister Annie Hashimoto, and their mother Hermogena Sanchez-Quicho, who joined respondent Maruyama in her complaint against petitioner Okabe and Tanghal. Respondent Maruyama, likewise, submitted a reply3 to the petitioners counter-affidavit. After the requisite preliminary investigation, 2nd Assistant City Prosecutor Joselito J. Vibandor came out with a resolution dated March 30, 2000, finding probable cause for estafa against the petitioner.4 Attached to the resolution, which was submitted to the city prosecutor for approval, was the Information5 against the petitioner and Maruyamas affidavit-complaint. The city prosecutor approved

the resolution and the Information dated March 30, 2000 attached thereto.6 On May 15, 2000, an Information against the petitioner was filed in the Regional Trial Court of Pasay City, docketed as Criminal Case No. 00-0749. The case was raffled to Branch 119 of the court presided by Judge Pedro de Leon Gutierrez.7 The accusatory portion of the Information reads: That on or about December 12, 1998 in Pasay City, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused defrauded Cecilia Maruyama and Conchita Quicho, complainant herein, in the following manner, to wit: said accused received in trust from Cecilia Maruyama the amount of Japanese Yen 1141 (sic) with peso equivalent toP3,839,465.00 under obligation to deliver the money to Conchita Quicho at the NAIA International Airport, Pasay City, immediately upon accused arrival from Japan, but herein accused once in possession of the same, did, then and there willfully, unlawfully and feloniously misappropriate and convert to her own personal benefit the said amount, and despite demands accused failed and refused to do so, to the damage and prejudice of the complainants in the aforesaid amount. Contrary to law.8 Appended to the Information was the affidavit-complaint of respondent Maruyama and the resolution of Investigating Prosecutor Vibandor. On May 19, 2000, the trial court issued a warrant for the arrest of the petitioner with a recommended bond ofP40,000. On June 15, 2000, the petitioner posted a personal bail bond in the said amount, duly approved by Judge Demetrio B. Macapagal, the Presiding Judge of Branch 79 of the RTC of Quezon City, who forthwith recalled the said warrant.The approved personal bail bond of the petitioner was transmitted to the RTC of Pasig City on June 21, 2000. Upon her request, the petitioner was furnished with a certified copy

of the Information, the resolution and the criminal complaint which formed part of the records of the said case. The petitioner left the Philippines for Japan on June 17, 2000 without the trial courts permission, and returned to the Philippines on June 28, 2000. She left the Philippines anew on July 1, 2000, and returned on July 12, 2000. On July 14, 2000, the trial court issued an Order setting the petitioners arraignment and pre-trial at 2:00 p.m. of July 16, 2000. On the same day, the private prosecutor filed an urgent ex parte motion for the issuance of the hold departure order, alleging as follows: 3.It has come to the knowledge of private complainant that there is an impending marriage within the Philippines of either the son or daughter of the above-named accused and that the above-named accusedwho has businesses in Japan, and is presently in Japanwill soon exit Japan and enter the Philippines to precisely attend said wedding; 4.Given [a] the bail was fixed at merely P40,000.00 and b] the considerable financial capability of the accused, it is a foregone conclusion that the above-named accused will, upon arrest, readily and immediately post bond, and leave for Japanthereby frustrating and rendering inutile the administration of criminal justice in our country. The speed with which accused Teresita Sheila Tanghal Okabe can post bond and leave for Japaneffectively evading arraignment and pleathus necessitates the immediate issuance of a Hold Departure Order even before her arrival here in the Philippines;9 The trial court issued an order on the same day, granting the motion of the private prosecutor for the issuance of a hold departure order and ordering the Commission on Immigration and Deportation (CID) to hold and prevent any attempt on the part of the petitioner to depart from the Philippines.10 For her part, the petitioner filed on July 17, 2000 a verified motion for

judicial determination of probable cause and to defer proceedings/arraignment, alleging that the only documents appended to the Information submitted by the investigating prosecutor were respondent Maruyamas affidavit-complaint for estafa and the resolution of the investigating prosecutor; the affidavits of the witnesses of the complainant, the respondents counter-affidavit and the other evidence adduced by the parties were not attached thereto. The petitioner further alleged that the documents submitted by the investigating prosecutor were not enough on which the trial court could base a finding of probable cause forestafa against her. She further averred that conformably to the rulings of this Court in Lim v. Felix11 and Roberts, Jr. v. Court of Appeals,12 it behooved the investigating prosecutor to submit the following to the trial court to enable it to determine the presence or absence of probable cause: (a) copies of the affidavits of the witnesses of the complainant; (b) the counter-affidavit of Okabe and those of her witnesses; (c) the transcripts of stenographic notes taken during the preliminary investigation; and, (d) other documents presented during the said investigation. On July 19, 2000, the petitioner filed a Very Urgent Motion To Lift/Recall Hold Departure Order dated July 17, 2000 and/or allow her to regularly travel to Japan alleging, thus: 3.Accused is (sic) widow and the legitimate mother of three (3) children, two (2) of whom are still minors, namely: 3.1.Okabe, Jeffrey-18 years old born on 13 August 1981. 3.2.Okabe, Masatoshi-14 years old and born on 16 October 1985, 3rd year High School student at Hoshikuki, Chiba City, Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804. 3.3.Okabe, Tomoki-13 years old and born on 13 March 1986, 2nd year High School student at Hoshikuki, Chiba City,

Matsugaoka, High School, residing at Chiba City, Chuo-Ku, Yahagi-cho, 205, Telephone No. 043-224-5804. 3.4.The accused has to attend the Parents Teachers Association (PTA) at the Hoshikuki High School where her two (2) minor sons aforesaid are presently enrolled and studying because Okabe, Masatoshis graduation will take place on 26 July 2000. 3.5.The two (2) minor children of the accused absolutely depend their support (basic necessities) for foods, clothings, medicines, rentals, schooling and all other expenses for their survival to their legitimate mother who is the accused herein. 3.6.The issuance of the hold departure order (HDO) will impair the inherent custodial rights of the accused as the legitimate mother over these two (2) minor children which is repugnant to law. 3.7.The issuance of the hold departure order (HDO) will unduly restrict the accused to her custodial rights and visitation over her aforesaid minor children who are permanently living in Japan. 3.8.The issuance of the hold departure order (HDO) will unduly deprived (sic) these minor children to their right to obtain education and survival. 4.Accuseds only source of income and livelihood is door-todoor delivery from Japan to the Philippines and vice versa which has been taking place for a very long period of time and in the process she has been constantly departing from the Philippines on a weekly basis and arriving in Japan on the same frequency, as evidenced by xerox copies of the pages of her Philippine Passports which are hereto attached as Annexes A, A-1, A-2 up to A-30, respectively.To deprive her of this only source of her livelihood to which the aforesaid two (2) minor children are deriving their very survival in a foreign land will (sic) tantamount to oppression rather than prosecution and

depriving the said minor sons of their right to live even before trial on the merits of this case that will (sic) tantamount to the destruction of the future of these minor children.13 The private prosecutor opposed the petitioners motions during the hearing on July 21, 2000 which was also the date set for her arraignment. The hearing of the motions as well as the arraignment was reset to 2:00 p.m. of July 26, 2000. On the said date, the petitioner filed a manifestation objecting to her arraignment prior to the resolution of her pending motions. She alleged that her arraignment for the crime charged should not be made a condition for the granting of her motion to recall the hold departure order issued against her. The arraignment of the petitioner was again reset to 2:00 p.m. of August 28, 2000, pending the resolution of her two motions. On August 25, 2000, the petitioner filed a motion for the postponement of her arraignment alleging that, in case the trial court ruled adversely thereon, she would refuse to enter a plea and seek relief from the appellate court. The court denied the petitioners motions on the following grounds: (a)Based on its personal examination and consideration of the Information, the affidavit-complaint of respondent Maruyama and the resolution of the investigating prosecutor duly approved by the city prosecutor, the court found probable cause for the petitioners arrest. Since the petitioners motion for a determination of probable cause was made after the court had already found probable cause and issued a warrant for the petitioners arrest, and after the latter filed a personal bail bond for her provisional liberty, such motion was a mere surplusage; (b)When the petitioner posted a personal bail bond for her provisional liberty, she thereby waived her right to question the courts finding of the existence of probable cause for her arrest and submitted herself to the jurisdiction of the court, more so when she filed the motion for the lifting of the hold departure

order the court issued, and the motion to defer the proceedings and her arraignment; and (c)The hold departure order issued by the trial court was in accord with Supreme Court Circular No. 39-97 dated June 19, 1997, as well as the ruling of this Court in Manotoc, Jr. v. Court of Appeals.14 When the case was called for the petitioners arraignment at 2:00 p.m., on August 28, 2000, she refused to plead.15 Her counsel advised her, in open court, not to enter a plea and, with leave of court, left the courtroom. The court then entered a not guilty plea for the petitioner.16 It also issued an order, on the said date, setting the pre-trial and initial presentation of the evidence of the prosecution at 8:30 a.m. of September 20, 2000.17 The petitioner then filed with the Court of Appeals a petition for certiorari under Rule 65 of the Rules of Court with a plea for a writ of preliminary injunction. The case was docketed as CA-G.R. SP No. 60732. The petitioner ascribed the following errors to the trial court: I RESPONDENT COURT GRAVELY ERRED WHEN IT ISSUED WARRANT OF ARREST DESPITE OF (SIC) LACK OF PROBABLE CAUSE II RESPONDENT COURT HAS VIOLATED THE RIGHT OF THE PETITIONER TO DUE PROCESS III RESPONDENT COURT HAS ALREADY PRE-JUDGED THE CONVICTION OF THE PETITIONER FOR ESTAFA IV

RESPONDENT COURT HAS EXHIBITED ITS APPARENT PARTIALITY TOWARDS THE PROSECUTION AND AGAINST THE PETITIONER V RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE MOTION FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE PURSUANT TO THE DOCTRINE OF ROBERTS, JR. VI RESPONDENT COURT GRAVELY ERRED WHEN IT DENIES (SIC) THE LIFTING/RECALL OF THE HDO AND/OR ALLOWING THE PETITIONER TO TRAVEL TO JAPAN REGULARLY FOR HUMANITARIAN CONSIDERATION VII RESPONDENT COURT COMMITTED GRAVE ABUSE OF DISCRETION AMOUNTING TO LACK OF JURISDICTION WHEN IT ISSUED THE QUESTIONED ORDERS18 On January 31, 2001, the CA rendered a Decision19 partially granting the petition in that the assailed order of the trial court denying the petitioners motion to lift/recall the hold departure order was set aside. However, the petitioners motion for reconsideration of the trial courts decision was denied and her petition for the nullification of the August 25, 2000 Order of the respondent judge was dismissed. The CA ruled that by posting bail and praying for reliefs from the trial court, the petitioner waived her right to assail the respondent judges finding of the existence of probable cause. The appellate court cited the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan.20 Thus, the appellate court affirmed the assailed order of the RTC,

based on the respondent judges personal examination of respondent Maruyamas affidavit-complaint, the resolution of the investigating prosecutor and the Information approved by the city prosecutor, a finding of probable cause was in order. However, the appellate court allowed the petitioner to travel to Japan under the following conditions: (1)That petitioner post a bond double the amount of her alleged monetary liability under the Information filed against her, as recommended by the Office of the Solicitor General; (2)That petitioner inform respondent Court of each and all of her travel itinerary prior to leaving the country; (3)That petitioner make periodic reports with respondent Court; (4)That petitioner furnish respondent Court with all the addresses of her possible place of residence, both here and in Japan; and (5)Such other reasonable conditions which respondent Court may deem appropriate under the circumstances.21 The appellate court did not resolve the issue of whether the trial court had prejudged the case and was partial to the prosecution. The decretal portion of the decision of the CA reads: WHEREFORE, premises considered, the instant special civil action for certiorari is hereby PARTIALLY GRANTED insofar as the denial of petitioners Motion to Lift/Recall Hold Departure Order dated 14 July, 2000 and/or Allow the accused to Regularly Travel to Japan is concerned. In all other respect, the same is hereby DENIED. SO ORDERED.22

appellate court erred in applying the ruling of this court in Cojuangco, Jr. v. Court of Appeals23 instead of Section 26, Rule 114 of the Revised Rules on Criminal Procedure. The petitioner posited that the said rule, which took effect on December 1, 2000, before the court rendered its decision, had superseded the ruling of this Court in the Cojuangco case. However, the appellate court held that Section 26, Rule 114 of the Revised Rules on Criminal Procedure cannot be applied retroactively, because the petitioner had posted bail on June 15, 2000 before the Revised Rules on Criminal Procedure took effect. Hence, the instant petition for review on certiorari for the reversal of the decision and resolution of the CA and praying that after due proceedings, judgment be rendered in her favor, thus: WHEREFORE, it is respectfully prayed of this Honorable Supreme Court that after due proceedings, judgment be rendered in favor of the petitioner and against the respondents as follows: (a)GIVING DUE COURSE to the instant petition; (b)ORDERING the REVERSAL and PARTIALLY SETTING ASIDE of the Decision promulgated on 31 January 2001 (Annex A hereof) of the Honorable Court of Appeals in CAG.R. SP No. 60732 as well as its Resolution promulgated on 27 September 2001 (Annex B hereof); (c)ORDERING the DISMISSAL of Crim. Case No. 00-0749 for lack of probable cause; (d)DECLARING the entire proceedings in Crim. Case No. 000749 as null and void; (e)ORDERING the private respondents to pay the petitioners the following amount:

On March 6, 2001, the petitioner filed a motion for a partial reconsideration of the decision of the CA contending that the (i)at least P1,000,000.00 as moral damages;

(ii)at least P1,000,000.00 as exemplary damages; (iii)at least P500,000.00 as attorneys fees and for other expenses of litigation. (f)ORDERING the private respondent to pay the costs of this suit. (g)Petitioner further prays for such other reliefs just and equitable under the premises.24 The petitioner asserts that the CA committed the following reversible errors: I THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT COMPLETELY DISREGARDED THE APPLICATION OF SECTION 26, RULE 114 OF THE REVISED RULES ON CRIMINAL PROCEDURE WHICH TOOK EFFECT ON 01 DECEMBER 2000 WHICH IS FAVORABLE TO THE PETITIONER/ACCUSED. II THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT WHATEVER INFIRMITY THERE WAS IN THE ISSUANCE OF THE WARRANT OF ARREST, THE SAME WAS CURED WHEN PETITIONER VOLUNTARILY SUBMITTED TO THE RESPONDENT COURTS JURISDICTION WHEN SHE POSTED BAIL AND FILED MOTIONS SEEKING AFFIRMATIVE RELIEF SUCH AS MOTION TO LIFT/RECALL HOLD DEPARTURE ORDER AND TO ALLOW PETITIONER TO TRAVEL REGULARLY TO JAPAN (Last paragraph, Page 9 DECISION dated 31 January 2001). III

THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT RELIED UPON THE RULING IN THE CASE OFCOJUANGCO, JR. VS. SANDIGANBAYAN, [300 SCRA 367 (1998)] WHEN IN FACT SAID RULING IS NOW OBSOLETE AND NO LONGER APPLICABLE. IV THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR IN RULING THAT RESPONDENT COURT COMPLIED WITH THE CONSTITUTIONAL REQUIREMENTS ON THE ISSUANCE OF WARRANT OF ARREST WITHOUT PROBABLE CAUSE, WHEN THE RESPONDENT COURT MERELY RELIED ON [THE] (i) COMPLAINT-AFFIDAVIT OF CECILIA MARUYAMA; (ii) RESOLUTION OF THE INVESTIGATING PROSECUTOR; AND (iii) CRIMINAL INFORMATION. V THE HONORABLE COURT OF APPEALS MADE A REVERSIBLE ERROR WHEN IT FAILED TO RULE ON THE PARTIALITY OF THE RESPONDENT JUDGE IN HANDLING THE CASE BELOW WHICH IS VIOLATIVE OF THE PETITIONERS RIGHT TO DUE PROCESS. VI THE FILING OF CRIM. CASE NO. 4297 (MTC, ANGAT, BULACAN) FOR ESTAFA ENTITLED PEOPLE VS. SHEILA OKABE; CIVIL CASE NO. 331-M-98 (RTC, MALOLOS, BULACAN) FOR SUM OF MONEY WITH PRELIMINARY ATTACHMENT ENTITLED CONCHITA SANCHEZ-QUICHO VS. SHEILA TERESITA TANGHAL OKABE; AND CRIM. CASE NO. 00-07-19 (RTC, PASAY CITY, BRANCH 119) ENTITLED PEOPLE VS. TERESITA TANGHAL OKABE CONSTITUTE A VIOLATION OF THE RULE ON NON-FORUM SHOPPING.25

By way of comment, the Office of the Solicitor General refuted the petitioners assigned errors, contending as follows: I The Court of Appeals did not commit a reversible error in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure. II The Court of Appeals did not commit a reversible error in ruling that the infirmity, if any, in the issuance by the respondent Judge of the warrant of arrest against petitioner was cured when petitioner voluntarily submitted to the trial courts jurisdiction when she posted bail and filed motions seeking for affirmative reliefs from the trial court, such as the motion to lift/recall Hold Departure Order (HDO) and to allow petitioner to travel regularly to Japan. III The Court of Appeals did not commit a reversible error in applying the ruling in the Cojuangco case. IV The Court of Appeals did not commit a reversible error in finding that respondent Judge complied with the constitutional requirements on the issuance of a warrant of arrest. V The Court of Appeals did not commit a reversible error when it did not rule on the partiality of the respondent Judge in handling Criminal Case No. 00-0749. VI

The Honorable Court of Appeals did not commit a reversible error when it did not rule on petitioners claim of forum shopping.26 The Court shall resolve the assigned errors simultaneously as they are interrelated. The petitioner asserts that the respondent judge could not have determined the existence of probable cause for her arrest solely on the resolution of the investigating prosecutor and the undated affidavit-complaint of respondent Maruyama. She posits that the respondent judge should have ordered the investigating prosecutor to submit the affidavits of the witnesses of respondent Maruyama and the latters documentary evidence, as well as the counter-affidavit of the petitioner and the transcripts of the stenographic notes, if any, taken during the preliminary investigation. The petitioner adds that the respondent judge should have personally reviewed the said documents, conformably to the rulings of this Court in Lim v. Felix,27 Roberts, Jr. v. Court of Appeals28 and Ho v. People,29 before determining the presence or absence of probable cause. She posits that the respondent judge acted with grave abuse of discretion amounting to excess or lack of jurisdiction in denying her motion for a determination of probable cause, and the alternative motion for a dismissal of the case against her for lack of probable cause. The petitioner further asserts that the appellate court erred in affirming the ruling of the respondent judge that, by posting a personal bail bond for her provisional liability and by filing several motions for relief, she thereby voluntarily submitted herself to the jurisdiction of the trial court and waived her right to assail the infirmities that infected the trial courts issuance of the warrant for her arrest.She avers that the appellate courts reliance on the ruling of this Court in Cojuangco, Jr. v. Sandiganbayan30 is misplaced, and submits that the appellate court should have applied Section 26, Rule 114 of the Revised

Rules of Court retroactively, as it rendered the ruling of this Court in the Cojuangco, Jr. case obsolete. The Office of the Solicitor General, on the other hand, asserts that the respondent judge did not commit any grave abuse of discretion when he found probable cause against the petitioner for estafa, and thereafter issued a warrant for her arrest. It argues that the respondent judge personally determined the existence of probable cause independently of the certification of the investigating prosecutor, and only after examining the Information, the resolution of the investigating prosecutor, as well as the affidavit-complaint of the private complainant.It asserts that such documents are sufficient on which to anchor a finding of probable cause. It insists that the appellate court correctly applied the ruling of this Court in the Cojuangco, Jr. v. Court of Appealscase, and that the respondent judge complied with both the requirements of the constitution and those set forth in the Rules of Court before issuing the said warrant.31 We agree with the contention of the petitioner that the appellate court erred in not applying Section 26, Rule 114 of the Revised Rules on Criminal Procedure, viz: SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. An application for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality of the warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation of the charge against him, provided that he raises them before entering his plea. The court shall resolve the matter as early as practicable but not later than the start of the trial of the case. It bears stressing that Section 26, Rule 114 of the Revised Rules on Criminal Procedure is a new one, intended to modify previous rulings of this Court that an application for bail or the admission to bail by the accused shall be considered as a

waiver of his right to assail the warrant issued for his arrest on the legalities or irregularities thereon.32 The new rule has reverted to the ruling of this Court in People v. Red.33 The new rule is curative in nature because precisely, it was designed to supply defects and curb evils in procedural rules. Hence, the rules governing curative statutes are applicable. Curative statutes are by their essence retroactive in application.34 Besides, procedural rules as a general rule operate retroactively, even without express provisions to that effect, to cases pending at the time of their effectivity, in other words to actions yet undetermined at the time of their effectivity.35 Before the appellate court rendered its decision on January 31, 2001, the Revised Rules on Criminal Procedure was already in effect. It behooved the appellate court to have applied the same in resolving the petitioners petition for certiorari and her motion for partial reconsideration. Moreover, considering the conduct of the petitioner after posting her personal bail bond, it cannot be argued that she waived her right to question the finding of probable cause and to assail the warrant of arrest issued against her by the respondent judge. There must be clear and convincing proof that the petitioner had an actual intention to relinquish her right to question the existence of probable cause.36 When the only proof of intention rests on what a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily and unequivocally relinquish the particular right that no other explanation of his conduct is possible.37 In this case, the records show that a warrant was issued by the respondent judge in Pasay City for the arrest of the petitioner, a resident of Guiguinto, Bulacan. When the petitioner learned of the issuance of the said warrant, she posted a personal bail bond to avert her arrest and secure her provisional liberty. Judge Demetrio B. Macapagal of the RTC of Quezon City approved the bond and issued an order recalling the warrant of arrest against the petitioner. Thus, the posting of a personal bail bond was a matter of imperative necessity to avert her

incarceration; it should not be deemed as a waiver of her right to assail her arrest. So this Court ruled in People v. Red:38 The present defendants were arrested towards the end of January, 1929, on the Island and Province of Marinduque by order of the judge of the Court of First Instance of Lucena, Tayabas, at a time when there were no court sessions being held in Marinduque. In view of these circumstances and the number of the accused, it may properly be held that the furnishing of the bond was prompted by the sheer necessity of not remaining in detention, and in no way implied their waiver of any right, such as the summary examination of the case before their detention. That they had no intention of waiving this right is clear from their motion of January 23, 1929, the same day on which they furnished a bond, and the fact that they renewed this petition on February 23, 1929, praying for the stay of their arrest for lack of the summary examination; the first motion being denied by the court on January 24, 1929 (G.R. No. 33708, page 8), and the second remaining undecided, but with an order to have it presented in Boac, Marinduque. Therefore, the defendants herein cannot be said to have waived the right granted to them by section 13, General Order No. 58, as amended by Act No. 3042.39 Moreover, the next day, or on June 16, 2000, the petitioner, through counsel, received certified true copies of the Information, the resolution of the investigating prosecutor, the affidavit-complaint of the private complainant, respondent Maruyama, and a certification from the branch clerk of court that only the Information, resolution and affidavit-complaint formed part of the entire records of the case. The next day, June 17, 2000, the petitioner, through counsel, filed a verified motion for judicial determination of probable cause and to defer the proceedings and her arraignment. All the foregoing are inconsistent with a waiver of her right to assail the validity of her arrest and to question the respondent judges

determination of the existence of probable cause for her arrest. Neither can the petitioners filing of a motion for the lifting of the hold departure order and for leave to go to Japan be considered a waiver of her right to assail the validity of the arrest warrant issued by the respondent judge. It bears stressing that when the petitioner filed the motion to lift the hold departure order issued against her by the respondent judge, her motion for a determination of probable cause was still unresolved. She sought a lifting of the hold departure order on July 14, 2000 and filed a motion for leave to go to Japan, to give the respondent judge an opportunity to reconsider the said order, preparatory to assailing the same in the appellate court in case her motion was denied. The issue that now comes to fore is whether or not the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in issuing his August 25, 2000 Order.By grave abuse of discretion is meant such patent and gross abuse of discretion as to amount to an evasion of positive duty or a virtual refusal to perform a duty enjoined by law, or to act at all in contemplation of law, as where the power is exercised in an arbitrary and despotic manner by reasons of passion or personal hostility.40 Hence, when the court has jurisdiction over the case, its questioned acts, even if its findings are not correct, would at most constitute errors of law and not abuse of discretion correctible by the extraordinary remedy of certiorari.41 We agree with the petitioner that before the RTC judge issues a warrant of arrest under Section 6, Rule 112 of the Rules of Court42 in relation to Section 2, Article III of the 1987 Constitution, the judge must make a personal determination of the existence or non-existence of probable cause for the arrest of the accused. The duty to make such determination is personal and exclusive to the issuing judge. He cannot abdicate his duty and rely on the certification of the

investigating prosecutor that he had conducted a preliminary investigation in accordance with law and the Rules of Court, as amended, and found probable cause for the filing of the Information. Under Section 1, Rule 112 of the Rules on Criminal Procedure, the investigating prosecutor, in conducting a preliminary investigation of a case cognizable by the RTC, is tasked to determine whether there is sufficient ground to engender a well-founded belief that a crime has been committed and the respondent therein is probably guilty thereof and should be held for trial. A preliminary investigation is for the purpose of securing the innocent against hasty, malicious and oppressive prosecution, and to protect him from an open and public accusation of a crime, from the trouble, expense and anxiety of a public trial.43 If the investigating prosecutor finds probable cause for the filing of the Information against the respondent, he executes a certification at the bottom of the Information that from the evidence presented, there is a reasonable ground to believe that the offense charged has been committed and that the accused is probably guilty thereof. Such certification of the investigating prosecutor is, by itself, ineffective. It is not binding on the trial court. Nor may the RTC rely on the said certification as basis for a finding of the existence of probable cause for the arrest of the accused.44 In contrast, the task of the presiding judge when the Information is filed with the court is first and foremost to determine the existence or non-existence of probable cause for the arrest of the accused. Probable cause is meant such set of facts and circumstances which would lead a reasonably discreet and prudent man to believe that the offense charged in the Information or any offense included therein has been committed by the person sought to be arrested.45 In determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of the

rules of evidence of which he has no technical knowledge. He relies on common sense.46 A finding of probable cause needs only to rest on evidence showing that more likely than not a crime has been committed and that it was committed by the accused. Probable cause demands more than bare suspicion, it requires less than evidence which would justify conviction.47 The purpose of the mandate of the judge to first determine probable cause for the arrest of the accused is to insulate from the very start those falsely charged of crimes from the tribulations, expenses and anxiety of a public trial: It must be stressed, however, that in these exceptional cases, the Court took the extraordinary step of annulling findings of probable cause either to prevent the misuse of the strong arm of the law or to protect the orderly administration of justice. The constitutional duty of this Court in criminal litigations is not only to acquit the innocent after trial but to insulate, from the start, the innocent from unfounded charges. For the Court is aware of the strains of a criminal accusation and the stresses of litigation which should not be suffered by the clearly innocent. The filing of an unfounded criminal information in court exposes the innocent to severe distress especially when the crime is not bailable.Even an acquittal of the innocent will not fully bleach the dark and deep stains left by a baseless accusation for reputation once tarnished remains tarnished for a long length of time. The expense to establish innocence may also be prohibitive and can be more punishing especially to the poor and the powerless.Innocence ought to be enough and the business of this Court is to shield the innocent from senseless suits right from the start.48 In determining the existence or non-existence of probable cause for the arrest of the accused, the RTC judge may rely on the findings and conclusions in the resolution of the investigating prosecutor finding probable cause for the filing of the Information. After all, as the Court held in Webb v. De Leon,49 the judge just personally reviews the initial

determination of the investigating prosecutor finding a probable cause to see if it is supported by substantial evidence.50 However, in determining the existence or nonexistence of probable cause for the arrest of the accused, the judge should not rely solely on the said report.51 The judge should consider not only the report of the investigating prosecutor but also the affidavit/affidavits and the documentary evidence of the parties, the counter-affidavit of the accused and his witnesses, as well as the transcript of stenographic notes taken during the preliminary investigation, if any, submitted to the court by the investigating prosecutor upon the filing of the Information.52 Indeed, in Ho v. People,53 this Court held that: Lastly, it is not required that the complete or entire records of the case during the preliminary investigation be submitted to and examined by the judge. We do not intend to unduly burden trial courts by obliging them to examine the complete records of every case all the time simply for the purpose of ordering the arrest of an accused. What is required, rather, is that the judge must have sufficient supporting documents (such as the complaint, affidavits, counter-affidavits, sworn statements of witnesses or transcripts of stenographic notes, if any) upon which to make his independent judgment or, at the very least, upon which to verify the findings of the prosecutor as to the existence of probable cause. The point is: he cannot rely solely and entirely on the prosecutors recommendation, as Respondent Court did in this case. Although the prosecutor enjoys the legal presumption of regularity in the performance of his official duties and functions, which in turn gives his report the presumption of accuracy, the Constitution, we repeat, commands the judge to personally determine probable cause in the issuance of warrants of arrest. This Court has consistently held that a judge fails in his bounden duty if he relies merely on the certification or the report of the investigating officer.54

The rulings of this Court are now embedded in Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure which provides that an Information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence of the resolution: SEC. 8. Records. (a) Records supporting the information or complaint. An information or complaint filed in court shall be supported by the affidavits and counter-affidavits of the parties and their witnesses, together with the other supporting evidence and the resolution on the case. If the judge is able to determine the existence or non-existence of probable cause on the basis of the records submitted by the investigating prosecutor, there would no longer be a need to order the elevation of the rest of the records of the case. However, if the judge finds the records and/or evidence submitted by the investigating prosecutor to be insufficient, he may order the dismissal of the case, or direct the investigating prosecutor either to submit more evidence or to submit the entire records of the preliminary investigation, to enable him to discharge his duty.55 The judge may even call the complainant and his witness to themselves answer the courts probing questions to determine the existence of probable cause.56 The rulings of this Court in Soliven v. Makasiar57 and Lim v. Felix58 are now embodied in Section 6, Rule 112 of the Revised Rules on Criminal Procedure, with modifications, viz: SEC. 6. When warrant of arrest may issue. (a) By the Regional Trial Court. Within ten (10) days from the filing of the complaint or information, the judge shall personally evaluate the resolution of the prosecutor and its supporting evidence. He may immediately dismiss the case if the evidence on record clearly fails to establish probable cause. If he finds probable cause, he shall issue a warrant of arrest, or a commitment order if the accused has already been arrested pursuant to a warrant issued by the judge who conducted the

preliminary investigation or when the complaint or information was filed pursuant to section 7 of this Rule. In case of doubt on the existence of probable cause, the judge may order the prosecutor to present additional evidence within five (5) days from notice and the issue must be resolved by the court within thirty (30) days from the filing of the complaint of information. In this case, the investigating prosecutor submitted to the respondent judge only his resolution after his preliminary investigation of the case and the affidavit-complaint of the private complainant, and failed to include the affidavits of the witnesses of the private complainant, and the latters reply affidavit, the counter-affidavit of the petitioner, as well as the evidence adduced by the private complainant as required by case law, and now by Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. The aforecited affidavits, more specifically the fax message of Lorna Tanghal and the document signed by her covering the amount of US$1,000, are of vital importance, as they would enable the respondent judge to properly determine the existence or non-existence of probable cause. First. When respondent Maruyama handed the money to the petitioner, she did not require the latter to sign a document acknowledging receipt of the amount.The petitioner avers that it is incredible that Maruyama would entrust P3,993,500 in Japanese Yen to her without even requiring her to sign a receipt therefor, especially since respondent Maruyama was not even the owner of the money; Second. The affidavit of Hermogena Santiago, a witness of the respondent, is unreliable, because it is based on information relayed to her by Lorna Tanghal that she (Tanghal) saw the petitioner carrying a Louis Vuitton bag while on board a Mitsubishi L300 van with the petitioner. It appears that Tanghal failed to submit any counter-affidavit to the investigating prosecutor;

Third. The affidavit of Marilette G. Izumiya, another witness of the respondent, is also unreliable, as it was based on information relayed to her by Thelma Barbiran, who used to work for the petitioner as a housemaid, that she (Barbiran) had in her possession a fax message from Lorna Tanghal, implicating the petitioner in the crime charged. Barbiran did not execute any affidavit; Fourth. There is no indication in the resolution of the investigating prosecutor that the petitioner received the fax message of Lorna Tanghal; Fifth. The private complainant claims that the petitioner tried to reimburse the P3,993,500 by remitting US$1,000 to her. However, the latter admitted in her affidavit-complaint that the document evidencing the remittance was signed by Lorna Tanghal, not by the petitioner. The petitioner claimed that Lorna Tanghal had to remit US$1,000 to respondent Maruyama because the latter made it appear to Tanghal that the police authorities were about to arrest the petitioner, and Tanghal was impelled to give the amount to respondent Maruyama to avert her arrest and incarceration; Sixth. In her counter-affidavit, the petitioner alleged that respondent Maruyama had no case against her because the crime charged in the latters affidavit-complaint was the same as that filed against her in the Metropolitan Trial Court of Bulacan, which was withdrawn by the complainant herself; Seventh. The investigating prosecutor stated in his resolution that the private complainant established the element of deceit. However, the crime charged against the petitioner as alleged in the Information is estafa with abuse of confidence. In sum, then, we find and so declare that the respondent judge committed a grave abuse of his discretion amounting to excess or lack of jurisdiction in finding probable cause for the petitioners arrest in the absence of copies of the affidavits of the witnesses of the private complainant and her reply

affidavit, the counter-affidavit of the petitioner, and the evidence adduced during the preliminary investigation before the investigating prosecutor. In view of the foregoing disquisitions, there is no more need to resolve the other issues raised by the petitioner. IN LIGHT OF ALL THE FOREGOING, the petition is GRANTED. The assailed decision of the Court of Appeals is REVERSED and SET ASIDE. The assailed Orders dated August 25 and 28, 2000 and the Warrant of Arrest issued by the respondent judge in Criminal Case No. 00-0749 are SET ASIDE. The records are REMANDED to the Regional Trial Court of Pasay City, Branch 119. The respondent judge is hereby DIRECTED to determine the existence or nonexistence of probable cause for the arrest of the petitioner based on the complete records, as required under Section 8(a), Rule 112 of the Revised Rules on Criminal Procedure. SO ORDERED. Quisumbing, (Acting Chairman), Austria-Martinez, andTinga, JJ., concur. Puno, (Chairman), J., on official leave. PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. TITO ZUELA y MORANDARTE, MAXIMO VELARDE y DE LOS REYES, and NELSON GARCIA y TEMPORAS, AccusedAppellants. DECISION PARDO, J.: The case is an appeal of accused Maximo Velarde y de los Reyes, Nelson Garcia y Temporas and Tito Zuela y Morandarte from the decision1 of the Regional Trial Court, Camarines Sur, Libmanan, Branch 24, finding them guilty beyond reasonable doubt of robbery with homicide and

sentencing each of them to reclusion perpetua, and to pay jointly and severally the amount of one hundred thousand (P100,000.00) pesos to the heirs of Maria Abendao and John Abendao, and fifty thousand (P50,000.00) pesos to the heirs of Hegino Hernandez, without subsidiary imprisonment in case of insolvency, and to pay the costs.2 On July 29, 1985, Assistant Provincial Fiscal Julian C. Ocampo III filed with the Regional Trial Court, Libmanan, Camarines Sur an information charging accused Maximo Velarde y de los Reyes, Nelson Garcia y Temporas and Tito Zuela y Morandarte with "robbery with triple homicide" committed as follows: "That in the evening of April 27, 1985 in Camagong, Cabusao, Camarines Sur, Philippines, the above-named accused, conspiring and confederating together and mutually aiding each other, with intent to gain, did then and there, willfully, unlawfully, and feloniously, with violence and intimidation gainst [sic] persons, that is by shooting and stabbing one Hegino Hernandez, Sr., Maria S. Abendao and John-John Abendao, thereby inflicting upon them mortal injuries that caused their instantaneous death, take, rob and carry away the following personal properties belonging to the said Maria Abendao, to wit: (1) Cash money. . . . . . . . . . . . . . . . . . . . .P21,000.00 (2) one gold ring. . . . . . . . . . . . . . . . . . . . . .P 750.00 (3) one Seiko wrist watch. . . . . . . . . . . . . P 1,250.00 .--------------................................... P23,000.00 "That as a consequence of the felonious act of the accused, the heirs of the deceased suffered damages in the amount of P25,000.00 each, representing indemnity for death, loss of earning capacity and moral damages. "CONTRARY TO LAW."3

On June 1, 1985, Maximo Velarde was arrested at Magallanes, Sorsogon, while accused Nelson Garcia and Tito Zuela were arrested at Cabusao, Camarines Sur on June 4, 1985 and June 9, 1985, respectively. On March 26, 1987, all three accused, were arraigned with the assistance of their counsel, and pleaded not guilty to the charge. Trial ensued. The evidence established the following facts: Maria Abendao was engaged in business. She had a store, operated a passenger jeepney and engaged in the buy and sale ofpalay. Her house cum store was beside that of her sister Romualda Algarins house, by the roadside in Barcelonita, Cabusao, Camarines Sur. Romualda also had a store. Accused Nelson Garcia was Marias store helper. Accused Tito Zuela alias "Anting" helped Romualda in her store during palayseason. The other accused Maximo Velarde was known to Romualda because she met him at a birthday party held at Marias house on April 19, 1985. The three accused were friends. On April 27, 1985, Maria made three (3) deliveries of palay on board her jeepney, driven by Hegino Hernandez, Jr., to the ricemill of Gerardo Benitez in San Juan, Libmanan, Camarines Sur. Every delivery costs seven thousand (P7,000.00) pesos. The three deliveries were made at 9:00 in the morning, 2:00 in the afternoon and 7:30 in the evening.4 Between 6:30 and 7:00 in the evening of that day, from a distance of five (5) arms length, Romualda saw the three (3) accused board the jeepney of Maria, bound for San Juan, Libmanan, Camarines Sur. Because the jeepney was filled with palay, they merely held on the railing of the jeepney.5 There were other passengers namely, Pablo Abendao and Roberto Echiaca.6

Gerardo Atienza, the buyer of palay, saw Maximo inside the jeepney during the second and third delivery of palay to his ricemill.7For each delivery, Gerardo paid Maria the amount of seven thousand (P7,000.00) pesos. The following morning, the bodies of Hegino Hernandez, Maria and John-John Abendao were found in rigor mortis condition at New Poblacion, Cabusao, Camarines Sur.8 Dr. Restituto Sampilo, municipal health officer of Cabusao, found Maria in a reclining position on the front seat of the jeepney. John was in a semi-kneeling position, facing his mother with both hands clasping her left hand. Hegino was at the steering wheel with his body, from the abdomen up, resting on the side of the vehicle and his head outside of it.9 A bullet that exited from Heginos left eyebrow caused the wound near his right ear.10 Maria had a horizontal stab wound at the front part of her neck just above the xyphoid process.11 Her seven (7) year old son, John, had a three (3) inch slashed horizontal wound at the front base of the neck, a two (2) inch wound on the left upper arm and two (2) stab wounds on the lateral side of the neck at the junction of the right shoulder.12 Hegino had a small wound with slightly depressed edges, about an inch from the highest tip of the right ear, a wound with everted and lacerated edges above the middle part of the left eyebrow, and seven (7) stab wounds at the back.13 Though there were no eyewitnesses, the prosecution established how the crime was committed with the testimony of Romualda Algarin, which was in turn based on the extrajudicial admission given by Maximo Velarde to Romualda when she visited the latter at the Camaligan municipal jail on June 6, 1985. Maximo, Tito and Nelson conceived the plan to hold-up Maria while drinking in front of Romualdas store because Maximo needed money for his fare to Manila.

When the palay-laden jeepney of Maria left for Libmanan, Camarines Sur Maximo, Tito and Nelson boarded it. They alighted at sitio Cagumpis, Camagong, Cabusao, Camarines Sur to attend a wedding.14 Maximo was supposed to board the jeepney on its way back to Barcelonita, while the other two (2) accused, Tito and Nelson would wait along the road at the crossing of New Poblacion and Camagong, Camarines Sur to board the jeepney and hold-up Maria. Everything went according to plan. Nelson and Tito hailed the jeepney at the crossing of Cabusao, Camarines Sur. Upon reaching an uninhabited place, Tito alias "Anting" told Velarde: "Oragui na ngaya ang driver."15 Maximo poked a gun at the driver and shot him. He also shot Maria at the neck when the latter shouted.16 Nelson and Tito alighted from the jeepney. Nelson went to the left front side of the jeepney, while Tito approached the right front side of the jeepney, in the process stepping on the sleeping John-John who was then awakened. The boy stood up and said, "You will see I will tell my father that you killed my mother."17 To avoid being identified by the boy, Tito told Maximo "Oragui na ini."18 Maximo took hold of the boys hair and slashed his neck. Tito took Marias money and divided it, each accused receiving about seven thousand (P7,000.00) pesos from the loot. Tito and Nelson went back to Barcelonita, Cabusao, Camarines Sur. Maximo proceeded to Manila. On June 1, 1985, Lt. Ernesto J. Idian, Station Commander, Cabusao Police Station, Cabusao, Camarines Sur assisted by two (2) other policemen, arrested Maximo in Magallanes, Sorsogon. Though no warrant of arrest had been issued, Maximo was immediately brought to the Camaligan police station in Camaligan, Camarines Sur where he was investigated and asked to give a written statement in the

presence of Atty. Jose Ocampo from the Citizens Legal Assistance Office (CLAO), Naga City.19 On June 4, and 9, 1985, Tito and Nelson were taken into police custody without a warrant. They underwent custodial investigation without the assistance of counsel because no lawyer could be found in Cabusao, Camarines Sur. On the last page of each accuseds confession appeared a statement, in their own handwriting, to the effect that they voluntarily gave their statements and that no one coerced or promised them anything to admit responsibility for the crime. Maximo, Nelson and Tito signed their individual statements before Judge Lore R. Valencia Bagalacsa, Municipal Circuit Trial Court, Libmanan, Camarines Sur on three (3) different dates.20 She followed the same procedure and line of questioning, using the local dialect, in ascertaining the voluntariness of the three (3) accuseds confessions. She ordered Lt. Idian and his companions to leave her and the accused inside the chamber.21 Satisfied that they were properly apprised of their rights and that they voluntarily executed their statements, she had them sign their individual extrajudicial statements. Antonio Abendao, the husband of Maria, was working at Saudi Arabia when his family was killed. He came to know about the tragic death of his wife and son through an overseas call from his brother Renato Abendao. When he learned about it, he became unconscious. He arrived in the Philippines five (5) days after.22 He knew Nelson Garcia because he was the son of his cousin. He was also familiar with Tito Zuela, but he did not know Maximo Velarde. He spent twenty thousand (P20,000.00) pesos for the funeral of his wife and son. He gave one thousand (P1,000.00) pesos financial assistance to the family of their driver, Hegino.23 On the other hand, Maximo, Tito and Nelson interposed common defenses: (1) denial and (2) that they were tortured

and forced to make a confession. In addition, Tito and Nelson claimed they were not assisted by counsel when their confessions were taken, while Maximo alleged the defense of alibi saying that he did not leave Magallanes, Sorsogon anytime in 1985. On June 1, 1985, five (5) persons, led by Lt. Idian, went to the house of Maximo Velarde in Magallanes, Sorsogon to fetch him because his parents wanted him at Cabusao, Camarines Sur as his brother Benito Velarde died. He was shown the picture of the cadaver of his brother. Maximo went with the group of Lt. Idian on board a red car and traveled to Naga City, arriving there between 7:00 and 8:00 in the evening. In a dark place before reaching Naga City, the driver stopped the vehicle to urinate. Before the driver could return, Maximo felt a hard object hit his head and he passed out. When he regained consciousness, he was already handcuffed. Pointing a gun at him, Lt. Idian told him that he had two choices, either to die or sign the statement they prepared because his brother had wronged them. He was warned not to tell anyone that he was mauled. Thereafter, they proceeded to the Camaligan municipal jail. Two days later or on June 3, 1985, Maximo was brought out of the jail and ushered into a small room where he saw three persons, namely Lt. Idian, Atty. Jose Ocampo from CLAO, Naga City and Pat. Gonsalo Refe, a police investigator from Cabusao, Camarines Sur. Atty. Ocampo read to him the contents of a prepared statement, which in substance mentioned that some people died and that he was responsible for their death. Maximo refused to sign. Atty. Ocampo stepped out of the room, followed by Lt. Idian and he overheard that he would be made to sign the statement in Atty. Ocampos office in Naga City. Atty. Ocampo then left and Lt. Idian returned to the room.

Upon Lt. Idians return to the smaller room, he kicked Maximo in the stomach and poked a gun at him. Consumed by fear, Maximo promised that he would sign the prepared statement. He was then handed a piece of paper and ordered to copy its contents on the prepared statement. Found on page 5 of his extrajudicial confession was this statement, in his own handwriting: "Opo binasa ko po ang apedabeth na ito na may 5# pahina na pawang totoo at sasareling kagustohan at walang nantakot o nangako."24 On June 4, 1985, Maximo again signed the statement before Judge Lore R. Valencia Bagalacsa, Municipal Circuit Trial Court, Libmanan, Camarines Sur. From the time accused Maximo was arrested, he was never released. Maximo denied that he saw and talked to Romualda on June 6, 1985 at the Camaligan municipal jail because he had been detained at the Libmanan municipal jail since June 4, 1985. For his part, Nelson Garcia denied any knowledge of the crime. On June 4, 1985, the group of Pat. Gonsalo Refe went to his house and invited him to the office of Lt. Idian. He was brought to the Camaligan Police Station. Upon their arrival, Lt. Idian talked to him and tried to convince him to confess to the killing of the Abendaos. Because Nelson refused, Lt. Idian brought him upstairs and mauled him. He was transferred to Naga City jail, where he was detained for two (2) hours. Thereafter, he was brought to the Cabusao Police Station where Pat. Rodolfo O. Cario subjected him to another investigation. Because of his continued refusal to confess, he was mauled again, this time by Pat. Cario. To avoid further injury to his person, on June 5, 1985, Nelson Garcia was forced to sign the prepared statement. He was neither informed of its contents nor assisted by counsel. He was handed a piece of paper, the contents of which he was ordered to copy, in his own handwriting, and in substance was

similar to what Maximo was ordered to copy as his own extrajudicial statement. He was brought to the office of Judge Bagalacsa that same afternoon so that he could sign his extrajudicial statement. From the time he was invited to the office of Lt. Idian, Nelson was never released from police custody. He was first detained at the Libmanan municipal jail, and later on transferred to the Tinangis Penal Farm in Pili, Camarines Sur. Though he suffered physically from the beatings he got from the policemen, he was never permitted to see a doctor. His relatives were not able to visit or talk to him because the policemen prohibited visitors.25 Like Nelson, Tito alias "Anting," denied participation in the crime. On July 9, 1985, Pat. Refe invited him to the office of Lt. Idian in Cabusao, Camarines Sur. Upon arrival at the police station, he was investigated about his knowledge of the crime. Failing to elicit any information from him, he was brought to Libmanan jail where he spent the night. The following day, Tito was again brought to Cabusao Police Station and presented to Lt. Idian. In Lt. Idians office, he was investigated about his involvement in the crime. When he could not provide any answer, he was made to board the police jeep, to be brought back to the Libmanan jail. Along the way, the police jeep stopped and Pat. Cabrera got off and kicked Tito who fell to the ground. He heard a gunshot and was shown the piece of paper that he was ordered to sign before Judge Bagalacsa. He was threatened with death should he refuse to sign the prepared statement. Out of fear for his life, Tito promised to sign. Thereafter, they boarded the police jeep and proceeded to the office of Judge Bagalacsa in Libmanan, Camarines Sur. Upon arrival at the office of Judge Bagalacsa, he was ordered to sign the statement without the assistance of counsel and without being informed of its contents. Thereafter, he was

brought to Libmanan municipal jail and later to Tinangis Penal Farm. Like his co-accused, he was never released from police custody from the time of arrest. On August 26, 1993, the trial court promulgated its decision convicting the three (3) accused of robbery with homicide, the dispositive portion of which reads: "WHEREFORE, after a careful and serious evaluation of the evidence presented by the prosecution and the defense, the Court is morally convinced beyond reasonable doubt, that the three (3) accused Maximo Velarde, Tito Zuela and Nelson Garcia had committed the crime of Robbery with Homicide and, therefore, sentences them to suffer the penalty of imprisonment of reclusion perpetua and to pay jointly and severally an indemnity in the amount of ONE HUNDRED THOUSAND (P100,000.00) PESOS for the Heirs of Maria Abendao and John Abendao and FIFTY THOUSAND (P50,000.00) PESOS for the Heirs of Hegino Hernandez, without imprisonment in case of insolvency, and to pay the costs. "SO ORDERED. "GIVEN this 26th day of July, 1993 at Libmanan, Camarines Sur, Philippines. "(Sgd.) SALVADOR G. CAJOT .."Presiding Judge"26 On the same day, all three (3) accused filed a notice of appeal with the trial court. In their appeal, accused-appellants claim that the trial court erred in: (1) relying on Maximo Velardes extra-judicial confession notwithstanding the violation of his constitutional rights;

(2) giving full faith and credit to Romualda Algarins testimony; and (3) finding all three (3) accused guilty as charged despite the prosecutions failure to prove their guilt beyond reasonable doubt. Considering that there were no eyewitnesses to the commission of the crime, the extra-judicial confessions of the three (3) accused play a pivotal role in the determination of their culpability. The Court is duty-bound, therefore, to resolve the issue of whether or not the extra-judicial confessions were executed in accordance with the provisions of the 1973 Constitution, in light of the fact that the crime took place in 1985. The pertinent provision of the 1973 Constitution provides: "Article IV, Section 20. No person shall be compelled to be a witness against himself. Any person under investigation for the commission of an offense shall have the right to remain silent and to counsel, and to be informed of such right. No force, violence, threat, intimidation, or any other means, which vitiates the free will, shall be used against him. Any confession obtained in violation of this section shall be inadmissible in evidence."27 The right to counsel attaches the moment an investigating officer starts to ask questions to elicit information on the crime from the suspected offender. It is at this point that the law requires the assistance of counsel to avoid the pernicious practice of extorting forced or coerced admissions or confessions from the person undergoing interrogation. In other words, "the moment there is a move or even urge of said investigators to elicit admissions or confessions or even plain information which may appear innocent or innocuous at the time, from said suspect, he should then and there be assisted by counsel, unless he waives the right, but the waiver shall be made in writing and in the presence of counsel."28

Lt. Idians team apprehended appellant Maximo in Magallanes, Sorsogon on June 1, 1985 when no warrant had been issued for his arrest. Immediately thereafter, the arresting peace officers investigated appellant Maximo. His statement was reduced in writing when they were in Camaligan, Camarines Sur. It was in Camaligan that CLAO lawyer Ocampo was summoned to assist appellant Maximo in the execution of his written confession. Atty. Ocampo was not present during the entire duration that accused Maximo was subjected to custodial investigation as could be inferred from the testimony of Pat. Rodolfo Cario, to wit: "Q: And after taking the statement of Velarde, what did you do with the statement of Velarde? A: It was presented to Atty. Ocampo. Q: Do you want to tell me that inspite of the fact that he was present when the confession was made you still present the statement to Atty. Ocampo? A: In order to let him sign the statement. Q: And where did Atty. Ocampo sign the confession of Velarde? A: It was sign [sic] at Naga because he went ahead. Q: Do you mean to tell me now that after the confession was made, the confession was left to you and after the confession was brought to his office at the CLAO Office in Naga, is that what you want to tell this court. A: We went to Naga with Lt. Idian and Velarde. Q: But it remains a fact that Atty. Ocampo was already at Naga when the statement of Velarde was presented to him for signature, is that correct? A: Yes he went ahead to Naga."29

There was no evidence that Maximo executed a waiver of his right to counsel. In light of these facts, we are constrained to rule that Maximo Velardes extra-judicial statement is inadmissible in evidence.30 "An uncounselled extra-judicial confession without a valid waiver of the right to counsel - that is, in writing and in the presence of counsel - is inadmissible in evidence."31 The respective sworn statements of appellants Tito and Nelson were likewise inadmissible in evidence because they were executed without the assistance of counsel. Despite the fact that the reason for the absence of lawyer during the custodial investigation was the scarcity of lawyers in the area, the Court could not be lenient in this case. The absence or scarcity of lawyers in any given place is not a valid reason for defying the constitutional mandate on counseled confessions. Contrary to the ruling of the trial court, the defect in the confessions of Tito and Nelson was not cured by their signing the extra-judicial statements before Judge Bagalacsa. Nevertheless, the infirmity of accused-appellants sworn statements did not leave a void in the prosecutions case. Accused-appellant Maximo repeated the contents of his sworn statement to Romualda Algarin who, in turn, related these in court. Such declaration to a private person is admissible in evidence against accused-appellant Maximo pursuant to Rule 130, Section 26 of the Rules of Court stating that the "act, declaration or omission of a party as to a relevant fact may be given in evidence against him." The trial court, therefore, correctly gave evidentiary value to Romualdas testimony. In People vs. Maqueda,32 we held: "However, the extrajudicial admissions of Maqueda to Prosecutor Zarate and to Ray Dean Salvosa stand on a different footing. These are not governed by the exclusionary rules under the Bill of Rights. Maqueda voluntarily and freely made them to Prosecutor Zarate not in the course of an

investigation, but in connection with Maquedas plea to be utilized as a state witness; and as to the other admission, it was given to a private person. The provisions of the Bill of Rights are primarily limitations on government, declaring the rights that exist without governmental grant, that may not be taken away by government and that government has the duty to protect; or restrictions on the power of the government found not in particular specific types of action prohibited, but in the general principle that keeps alive in the public mind the doctrine that governmental power is not unlimited. They are the fundamental safeguards against aggressions of arbitrary power, or state tyranny and abuse of authority. In laying down the principles of the government and fundamental liberties of the people, the Constitution did not govern the relationships between individuals. "Accordingly, Maquedas admissions to Ray Dean Salvosa, a private party, are admissible in evidence against the former under Section 26, Rule 130 of the Rules of Court. In Aballe vs. People (183 SCRA 196 [1990]), this Court held that the declaration of an accused expressly acknowledging his guilt of the offense may be given in evidence against him and any person, otherwise competent to testify as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood it. The said witness need not repeat verbatim the oral confession; it suffices if he gives its substance. By analogy, that rule applies to oral extrajudicial admission." (Underscoring supplied.)33 And in the recent case of People vs. Andan34 the Court reiterated the doctrine enunciated in the Maqueda case. In Andan, the Court said that "when the accused talked with the mayor as confidant and not as a law enforcement officer, his uncounselled confession did not violate his constitutional rights. Constitutional procedures on custodial investigation do not apply to a spontaneous statement, not elicited through questioning by the authorities, but given in an ordinary manner whereby appellant orally admitted having committed the

crime." Of course, accused-appellant Maximo attempted to discredit Romualda's credibility as a witness when he swore that he could not have been in Camaligan on June 6, 1985 because since June 4, 1985 until some three weeks later, he was detained at the Libmanan jail.35 The trial court correctly disregarded this self-serving uncorroborated assertion. The defense failed to attribute any ill-motive on the part of Romualda for testifying on accused-appellant Maximos admission and therefore the presumption that in so testifying, she was impelled by no other reason than to tell the truth, stands. The fact that she is related to two of the victims did not render her testimony incredible. Relationship per se is not proof of prejudice.36 She might have been mistaken as to the date when she talked with accused-appellant Maximo while he was detained considering the more than three-year gap between June 1985 and September to October 1988 when Romualda testified. However, it is not necessary that the witness should be able to fix accurately the date of the conversation in which the admission was made. What is important is that the witness is able to state the substance of the conversation or declaration.37 Romualdas testimony on accused-appellant Maximos admission sealed not only the latters fate but also that of appellants Tito and Nelson. The rule that an extrajudicial confession is binding only upon the confessant and is not admissible against his co-accused because the latter has no opportunity to cross-examine the confessant and therefore, as against him, the confession is hearsay,38 is not applicable here. What is involved here is an admission, not a confession. Wharton distinguished these terms as follows: "A confession is an acknowledgment in express terms, by a party in a criminal case, of his guilt of the crime charged, while an admission is a statement by the accused, direct or implied, of facts pertinent to the issue and tending, in connection with proof of other facts, to prove his guilt. In other words, an

admission is something less than a confession, and is but an acknowledgment of some fact or circumstance which in itself is insufficient to authorize a conviction and which tends only to establish the ultimate fact of guilt."39 Appellants Tito and Nelson were afforded the opportunity to cross-examine witness Romualda on accused-appellant Maximos declaration. They could have questioned its veracity by presenting evidence in support of their defenses of denial and alibi so they could put to test Romualdas credibility. Having failed to do so, Romualdas testimony, which the trial court correctly considered as credible, stands unscathed. Romualdas testimony on the substance of accused-appellant Maximos admission standing alone, may not be the basis for conviction of the appellants. However, such testimony, taken with circumstances duly established by the prosecution, point unerringly to accused-appellants culpability. These circumstances are: (1) accused-appellants and the victims were all residents of Barcelonita, Cabusao, Camarines Sur, a small barangay where everyone knew everybody; (2) accusedappellants Tito and Nelson helped in the stores of the sisters Maria and Romualda a week before the incident; (3) Romualda saw the three accused-appellants as they boarded Marias jeepney during its last palay delivery to Libmanan; (4) Gerardo Atienza saw accused-appellant Maximo with Marias group during the jeepneys second delivery of palay; (5) Atienza saw accused-appellant Maximo riding in Marias jeepney after the last delivery; (6) after the commission of the crime, accused-appellants Tito and Nelson no longer went to the store of Romualda; (7) accused-appellants never attended the wake of the victims, and (8) accused-appellant Maximo fled to Manila. These circumstances form an unbroken chain, which, by themselves, lead to a fair and reasonable conclusion that accused-appellants were the culprits in the robbery with homicide.40 Under the law, circumstantial evidence is sufficient

basis for conviction as long as: (1) there is more than one circumstance; (2) the facts from which the inferences are derived are proved, and (3) the combination of all the circumstances is such as to produce conviction beyond reasonable doubt.41 These requisites were present in this case. Accused-appellants diverse courses of action after the commission of the crime, with accused-appellant Maximo going to Manila and accused-appellants Tito and Nelson staying in Barcelonita, do not negate their guilt. As regards accused-appellant Maximo, his flight to Manila and to Magallanes, Sorsogon with no plausible explanation therefor is a clear indication of guilt.42 With respect to accused-appellants Tito and Nelson, their decision to stay in Barcelonita did not mean that they were not equally guilty as accused-appellant Maximo. As this Court once said: "Accused-appellant argues that had he participated in the crime, his natural reaction would have been to flee. We do not agree. Each culprit behaves differently in externalizing and manifesting his guilt. Others may escape or flee which circumstance is strongly indicative of guilt, while others may remain in the same vicinity so as to create a semblance of normalcy, careful not to arouse suspicion in the community."43 Conspiracy may be inferred from the acts of accusedappellants before, during and after the commission of the crime, which indicate a joint purpose, concerted action and concurrence of sentiments.44 Whenever homicide is committed as a consequence or on the occasion of the robbery, all those who took part as principals in the conspiracy are also guilty as principals in the special complex crime of robbery with homicide although they did not actually take part in the killing, unless there is proof that they tried to prevent the crime.45 There is no evidence that any of the accusedappellants desisted from the malevolent intent of the others to

kill the victims during the robbery. As such, they shall equally bear the responsibility for the resulting crime. Treachery was not alleged in the information but the suddenness of the assault upon Hegino and Maria from behind was proven beyond reasonable doubt. As such, treachery may be appreciated as a generic aggravating circumstance.46 As regards seven-year-old John, even if the manner by which he was attacked was not shown, treachery may be deemed to have attended his killing. Treachery exists when an adult person illegally attacks a child of tender years and causes his death.47 The crime committed is the special complex crime of robbery with homicide defined and penalized in Article 294 of the Revised Penal Code. The trial court correctly considered the crime as robbery with homicide and not "robbery with triple homicide" as charged in the information. The term "homicide" in Article 294(1) is used in its generic sense, embracing not only the act which results in death but also all other acts producing anything short of death.48 Neither is the nature of the offense altered by the number of killings in connection with the robbery.49 The multiplicity of victims slain on the occasion of the robbery is only appreciated as an aggravating circumstance. This would preclude an anomalous situation where, from the standpoint of the gravity of the offense, robbery with one killing would be treated in the same way that robbery with multiple killings would be.50 Under Article 294 (1) of the Revised Penal Code, robbery with homicide is punishable by reclusion perpetua to death. By the presence of two aggravating circumstances, namely, treachery and multiplicity of slain victims, the proper penalty should be death in view of Article 63 (1) of the same Code.51 However, considering that when this case happened, the imposition of the death penalty was proscribed, the proper imposable penalty was reclusion perpetua. The heinousness of the crime

they committed notwithstanding, accused-appellants may not be deprived of such favorable factor in their case. The Solicitor Generals plea for modification of the penalty in accordance with Republic Act No. 7659 which "has already expressly converted reclusion perpetua into a divisible penalty" and on account of the decision in People vs. Lucas,52 is untenable. It must be stressed that the Lucas ruling has been reconsidered and, accordingly, the Court has held: "After deliberating on the motion and re-examining the legislative history of R.A. No. 7659, the Court concludes that although Section 17 of the R.A. No. 7659 has fixed the duration of reclusion perpetua from twenty (20) years and one (1) day to forty (40) years, there was no clear legislative intent to alter its original classification as an indivisible penalty. It shall then remain as an indivisible penalty."53 The trial court failed to award the heirs of Maria Abendao the amount of twenty three thousand (P23,000.00) pesos in reimbursement of the stolen cash, ring and wristwatch and the expenses amounting to twenty thousand (P20,000.00) pesos for her wake and that of her son, which were duly proved.54 The heirs are entitled to those amounts as reparation of the damage caused by accused-appellants. They shall also be liable for exemplary damages in view of the presence of two aggravating circumstances in the commission of the crime.55 WHEREFORE, the Court AFFIRMS with MODIFICATION the decision of the trial court. The Court renders judgment finding accused-appellants Tito Zuela y Morandarte, Maximo Velarde y de los Reyes, and Nelson Garcia y Temporas guilty beyond reasonable doubt of robbery with homicide, defined and penalized under Article 294 (1) of the Revised Penal Code, and sentences each of them to reclusion perpetua with all its accessory penalties and to pay civil indemnity of one hundred thousand (P100,000.00) pesos to the heirs of Maria Abendao

and John Abendao and fifty thousand (P50,000.00) pesos to the heirs of Hegino Hernandez, Jr. In addition, the Court sentences each of the accusedappellants solidarily to pay the additional amounts of forty three thousand (P43,000.00) pesos as reimbursement of damages to the heirs of Maria Abendao, and fifty thousand (P50,000.00) pesos as exemplary damages to the heirs of each of the three (3) victims. With costs. SO ORDERED. Davide, Jr., C.J., (Chairman), Puno, Kapunan, and YnaresSantiago, JJ., concur.2/22/00 9:49 AM EOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PACITO ORDOO Y NEGRANZA alias ASING and APOLONIO MEDINA Y NOSUELO alias POLING, accusedappellants. DECISION PER CURIAM: COURTS are confronted, repeatedly, with the difficult task of scrutinizing the sufficiency of extrajudicial confessions as basis for convicting the accused. The drive to apprehend the culprits at any cost, particularly in crimes characterized by brutality and savagery, not too infrequently tempts law enforcement agencies to take unwarranted shortcuts and disregard constitutional and legal constraints that are intended to ensure that only the guilty are punished. In the delicate process of establishing guilt beyond reasonable doubt, courts play a crucial role in assuring that the evidence gathered by government agents scrupulously meets the exacting constitutional standards which if not met impose a strict exclusionary rule, i.e., "any confession or admission obtained

in violation of Art. II, Sec. 12 (1), shall be inadmissible in evidence." This case is on automatic review of the 11 December 1997 Decision of the Regional Trial Court, Br. 34, Balaoan, La Union, in Crim. Case No. 2415 finding both accused Pacito Ordoo y Negranza alias Asing and Apolonio Medina y Nosuelo alias Poling guilty beyond reasonable doubt of rape with homicide and imposing upon each of them two (2) separate death penalties. The records show that on 5 August 1994 the decomposing body of a young girl was found among the bushes near a bridge in Barangay Poblacion, Santol, La Union. The girl was later identified as Shirley Victore, fifteen (15) years old, a resident of Barangay Guesset, Poblacion, Santol, La Union, who three (3) days before was reported missing. Post-mortem examination conducted by Dr. Arturo Llavore, a medico-legal officer of the NBI, revealed that the victim was raped and strangled to death. Unidentified sources pointed to Pacito Ordoo and Apolonio Medina as the authors of the crime. Acting on this lead, the police thereupon invited the two (2) suspects and brought them to the police station for questioning. However, for lack of evidence then directly linking them to the crime, they were allowed to go home. On 10 August 1994 the accused Pacito Ordoo and Apolonio Medina returned to the police station one after another and acknowledged that they had indeed committed the crime. Acting on their admission, the police immediately conducted an investigation and put their confessions in writing. The investigators however could not at once get the services of a lawyer to assist the two (2) accused in the course of the investigation because there were no practicing lawyers in the Municipality of Santol, a remote town of the Province of La Union. Be that as it may, the statements of the two (2) accused

where nevertheless taken. But before doing so, both accused were apprised in their own dialect of their constitutional right to remain silent and to be assisted by a competent counsel of their choice. Upon their acquiescence and assurance that they understood their rights and did not require the services of counsel, the investigation was conducted with the Parish Priest, the Municipal Mayor, the Chief of Police and other police officers of Santol, La Union, in attendance to listen to and witness the giving of the voluntary statements of the two (2) suspects who admitted their participation in the crime. The first to confess was Apolonio Medina who in addition to the Parish Priest, the Mayor, the Chief of Police and the other police officers was also accompanied by his wife and mother. Apolonio Medina narrated that in the morning of 2 August 1994 while he was walking towards the house of Pacito Ordoo in Sitio Buacao, Poblacion, Santol, La Union, he noticed a young woman walking towards the school at the Poblacion. Upon reaching Sitio Buacao, he saw Pacito Ordoo standing along the road. When the woman reached him he suddenly grabbed her, held her tightly and covered her mouth with his right hand. As Medina neared them, Ordoo turned to him and said, "Come and help me, I am feeling uneasy." Although Medina claimed he was surprised at the request, he nonetheless went to Ordoo, helped him hold the legs of the young woman including her bag and umbrella and together they carried her to the bushes where they laid her down. Medina held her legs as requested while Ordoo continued to cover her mouth with his hand and boxing her many times on the head. When she was already weak and weary Ordoo knelt near her, raised her skirt and lowered her panty down to her knees. Medina continued to remove her panty as Ordoo removed his short pants, then his briefs. Ordoo then raped her, boxed her head continuously, with Medina continuously pinning her legs down and boxing those legs every time she struggled.

After Ordoo had satiated himself Medina took his turn in raping the same victim with Ordoo holding her legs. After they were through, Medina left to watch out for intruders while Ordoo tied a vine around the girl's neck, hanged her on a tree that ended her life. Then, they went back to the road and parted ways. After Medina said his piece, his wife and mother suddenly burst into tears. He then affixed his signature on his statement and so did his wife, followed by all the other witnesses who listened to his confession. Pacito Ordoo narrated his story in the afternoon. According to him, in the morning of 2 August 1994 he was on his way to Sitio Guesset, Barangay Manggaan, Santol, La Union, when he saw a girl followed by Apolonio Medina. When the girl was near him he immediately grabbed her and covered her mouth. Medina drew near, held her two legs, bag and umbrella and together they carried her into the thicket. After laying her down Ordoo boxed her breasts and face while Medina boxed her legs. When she became weak Ordoo raised her skirt and lowered her panty while Medina completely, removed it. Ordoo then removed his pants and walker briefs, went on top of Shirley and as Medina spread her legs Ordoo immediately inserted his penis into her vagina. After ejaculating Ordoo turned to Medina for him to take his turn in raping the girl. Ordoo was now holding her legs. At the end of his narration Ordoo affixed his thumbmark on his statement in lieu of his signature as he did not know how to write. Thereafter, Apolonio Medina and Pacito Ordoo were detained at the Santol police station. News about the apprehension and detention of the culprits of the rape-slay of Shirley Victore soon spread that Roland Almoite, leading radio announcer of radio station DZNL, visited and interviewed them. In the interview which was duly tape-recorded both accused admitted again their complicity in the crime and narrated individually the events surrounding their commission thereof. According to

Medina, his remorse in having committed the crime was so great but his repentance came too late.[1] He and Ordoo hoped that the parents of Shirley Victore would forgive them. [2] Upon conclusion of the interview, Roland Almoite immediately went to radio station DZNL and played the taped interview on the air. The same interview was played again on the air the following morning and was heard by thousands of listeners. A couple of days later, the police brought the two (2) accused to the office of the PAO lawyer in Balaoan, La Union, for assistance and counseling. In a closed-door session, PAO lawyer Oscar B. Corpuz apprised each of the accused of his constitutional rights and, even though their confessions were already written in their dialect, explained to them each of the questions and answers taken during the investigation. He likewise advised them to ponder the consequences of their confessions, leading them to defer the affixing of their second signature/ thumbmark thereon. After a week or so, the two (2) separately went back to Atty. Corpuz and informed him of their willingness to affix their signatures and thumbmarks for the second time in their respective confessions. Once again Atty. Corpuz apprised the two (2) accused of their constitutional rights, explained the contents of their respective statements, and finally, accompanied them to Judge Fabian M. Bautista, MTC judge of Balaoan, La Union, who further apprised the two (2) accused of their constitutional rights and asked them if they had been coerced into signing their confessions. They assured Judge Bautista that their statements had been given freely and voluntarily. Upon such assurance that they had not been coerced into giving and signing their confessions, Judge Bautista finally asked the accused Pacito Ordoo and Apolonio Medina to affix their signatures/ thumbmarks on their respective confessions, and to subscribe the same before him. Atty. Corpuz then signed their statements as their assisting

counsel, followed by a few members of the MTC staff who witnessed the signing. On arraignment, in a complete turnabout, the two (2) accused pleaded not guilty. In his defense, Pacito Ordoo testified that on 5 August 1994, while he was cooking at home, the police arrived and invited him to the headquarters for questioning. The police asked him his whereabouts on 2 August 1994 and he answered that he worked in the farm of Barangay Captain Valentin Oriente. According to Ordoo, the questioning took one (1) hour with the police boxing him several times on his stomach and on his side. They even inserted the barrel of a gun into his mouth in an effort to draw out answers from him. This being fruitless, he was placed in jail and released only the following morning, 6 August 1994. Three (3) days later, or on 9 August 1994, the police once again invited him to the headquarters where he was told that he was responsible for the rape and death of Shirley Victore. Accused Pacito Ordoo insisted on his innocence and maintained that he was working with a certain barangay captain; nonetheless, he was detained. Later that night the police took him out from jail and brought him to the room of investigator SPO4 Alfredo A. Ominga where he was hit with the butt of an armalite and forced to admit to the rape and slay of Shirley Victore. On 10 August 1994 SPO4 Alfredo A. Ominga took a typewriter and asked questions from him for one (1) hour without a lawyer assisting him nor a priest witnessing the investigation. A barrel of a gun was placed inside his mouth forcing him to admit the commission of the crime and to affix his thumbmark on the document. He was also brought to the office of the PAO lawyer twice but did not affix his thumbmark on any document because he could not understand its contents. A radio announcer visited him inside his cell for an interview but he declined to answer his questions. He only answered the radio announcer during his

fourth visit when SPO4 Alfredo A. Ominga threatened to hit him if he did not admit to the commission of the crime. As to Apolonio Medina, he heard from the police that he was also detained but maintained that he (Ordoo) did not know Apolonio. For his part, Apolonio Medina testified that on 5 August 1994 while he was pasturing his carabaos at Barangay Guesset, in Santol, La Union, the police came and invited him for questioning. They asked him where he was on 2 August 1994 and he replied that he was carrying bananas for his aunt Resurreccion. The interrogation lasted for about an hour with neither a lawyer assisting him nor a relative being present, after which he was placed in jail. Later, he was brought out and taken to a hut near the headquarters where he was boxed, kicked and hit with a nightstick. He lost consciousness and recovered only after he was brought back to his cell. That same night he was returned to the hut outside the police headquarters where he was again boxed. On 8 August 1994, with his legs tied to the ceiling beam, he was hanged upside down. His breast was hit with the butt of a gun which was fired near his ear. A barrel of a gun was inserted into his mouth. He was threatened that he would be salvaged if he did not admit to killing the victim. He was forced to sign a statement but could not recall its date of execution. He was brought to the office of the PAO lawyer twice but he did not sign the document. The investigator warned him that if he did not sign he would be buried in the pit which he himself dug. On his third visit to the office of the PAO lawyer he signed the document. He could not remember having gone to the office of the MTC Judge of Balaoan; La Union. He was interviewed by a radio announcer and was instructed by the investigator to narrate those that were in his statement. He admitted he knew Pacito Ordoo. He showed his bruises to his mother when the latter visited him in jail, prompting the latter to request medical treatment for her son but the request was denied.

On 11 December 1997 the trial court adjudged accused Pacito Ordoo and Apolonio Medina guilty of the crime of rape with homicide attended with conspiracy, and imposed upon each of them two (2) death penalties on the basis of their extrajudicial confessions. The accused are now before us assailing their conviction on the ground that constitutional infirmities attended the execution of their extrajudicial confessions, i.e., mainly the lack of counsel to assist them during custodial investigation thereby making their confessions inadmissible in evidence. Under the Constitution[3] and the rules laid down pursuant to law[4] and jurisprudence,[5] a confession to be admissible in evidence must satisfy four (4) fundamental requirements: (a) the confession must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the confession must be express; and, (d) the confession must be in writing.[6] Among all these requirements none is accorded the greatest respect than an accused's right to counsel to adequately protect him in his ignorance and shield him from the otherwise condemning nature of a custodial investigation. The person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense.[7]Hence, if there is no counsel at the start of the custodial investigation any statement elicited from the accused is inadmissible in evidence against him. This exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent.
[8]

asking questions to elicit information and/or confession from them. At such point, the right of the accused to counsel automatically attached to them. Concededly, after informing the accused of their rights the police sought to provide them with counsel. However, none could be furnished them due to the non-availability of practicing lawyers in Santol, La Union, and the remoteness of the town to the next adjoining town of Balaoan, La Union, where practicing lawyers could be found. At that stage, the police should have already desisted from continuing with the interrogation but they persisted and gained the consent of the accused to proceed with the investigation. To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation. In providing that during the taking of an extrajudicial confession the accused's parents, older brothers and sisters, his spouse, the municipal mayor, municipal judge, district school supervisor, or priest or minister of the gospel as chosen by the accused may be present, RA 7438 does not propose that they appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: (a) counsel of the accused must be absent, and, (b) a valid waiver must be executed. RA 7438 does not therefore unconditionally and unreservedly eliminate the necessity of counsel but underscores its importance by requiring that a substitution of counsel with the above-mentioned persons be made with caution and with the essential safeguards. Hence, in the absence of such valid waiver, the Parish Priest of Santol, the Municipal Mayor, the relatives of the accused, the Chief of Police and other police officers of the municipality could not stand in lieu of counsel's presence. The apparent

In the instant case, custodial investigation began when the accused Ordoo and Medina voluntarily went to the Santol Police Station to confess and the investigating officer started

consent of the two (2) accused in continuing with the investigation was of no moment as a waiver to be effective must be made in writing and with the assistance of counsel. [9] Consequently, any admission obtained from the two (2) accused emanating from such uncounselled interrogation would be inadmissible in evidence in any proceeding. Securing the assistance of the PAO lawyer five (5) to eight (8) days later does not remedy this omission either. Although there was a showing that the PAO lawyer made a thorough explanation of the rights of the accused, enlightened them on the possible repercussions of their admissions, and even gave them time to deliberate upon them, this aid and valuable advice given by counsel still came several days too late. It could have no palliative effect. It could not cure the absence of counsel during the custodial investigation when the extrajudicial statements were being taken.[10] The second affixation of the signatures/ thumbmarks of the accused on their confessions a few days after their closeddoor meeting with the PAO lawyer, in the presence and with the signing of the MTC judge, the PAO lawyer and other witnesses, likewise did not make their admissions an informed one. Admissions obtained during custodial investigation without the benefit of counsel although reduced into writing and later signed in the presence of counsel are still flawed under the Constitution.[11] If the lawyer's role is diminished to being that of a mere witness to the signing of a prepared document albeit an indication therein that there was compliance with the constitutional rights of the accused, the requisite standards guaranteed by Art. III, Sec. 12, par. (1), are not met. The standards utilized by police authorities to assure the constitutional rights of the accused in the instant case therefore fell short of the standards demanded by the Constitution and the law. It should further be recalled that the accused were not effectively informed of their constitutional rights when they

were arrested, so that when they allegedly admitted authorship of the crime after questioning, their admissions were obtained in violation of their constitutional rights against selfincrimination under Sec. 20, Art. IV, of the Bill of Rights. As testified to, the police informed the accused of their rights to remain silent and to counsel in a dialect understood by them, but despite the accused's apparent showing of comprehension, it is doubtful if they were able to grasp the significance of the information being conveyed. Pertinent portions of the extrajudicial confessions of Pacito Ordoo and Apolonio Medina, translated into English, read PRELIMINARY Mr. Pacito Ordoo, I am informing you that you are being investigated of an offense but before we continue, I tell you that you have the right to remain silent under the new Constitution of the Philippines. And you are also herein reminded that all statements you give may be used for or against you in any Philippine court as evidence and it is herein likewise reminded that you have the right to secure the services of a lawyer of your own choice to represent you in this investigation, do you understand all these? A:....Yes, sir because all that I will state will only be the truth. Q:....Do you want that we will continue with this investigation after having been appraised of all your rights? A:....Yes, sir. Q:....And, do you want that we continue wit the investigation even without a lawyer of your own choice to represent you? A:....Yes, sir.

Q:....Are you now prepared to give your voluntary statement consisting only the truth, without any lies whatsoever? A:....Yes, sir x x x x PRELIMINARY Mr. Apolonio Medina, I inform you that you are being investigated of an offense but before we proceed with this investigation, I am informing you that you have the right to remain silent to all questions asked of you, according to the new Philippine Constitution. And you are likewise reminded that all statements you give may be used for or against you in any Philippine court and you have a right to have a lawyer of your own choice to represent you in this investigation, do you understand this? ANSWER - Yes, sir. Q:....After having known all your rights, do you want that we continue with the investigation? A:....Yes, sir. Q:....Do you want that we continue with this investigation even without a lawyer to represent you? A:....Yes, sir because all that I will state are the truth. Q:....Are you now prepared to give your voluntary statement consisting only the truth, nothing but the truth? A....Yes, sir. The advice proffered by the investigating officer to Ordoo starkly resembles that given to Medina, thus leading us to conclude that the advice was given perfunctorily and belonged to the stereotyped class - a long question by the investigator informing the appellant of his right followed by a monosyllabic answer - which this Court has condemned for being

unsatisfactory.[12] The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer gives an advice in a cursory manner as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If advice is given casually and tritely as to be useless, understanding on the part of the accused is sacrificed and the unconstrained giving up of a right becomes impaired. To be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." It is not enough for the interrogator to merely enumerate to the person under investigation his rights as provided in Sec. 12, Art. III, of the Constitution; the interrogator must also explain the effect of such provision in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands.[13] With the extrajudicial confession of the accused rendered inadmissible in evidence, we are left with the interview taken by DZNL radio announcer Roland Almoite as evidence. The taped interview was offered to form part of the testimony of witness Roland Almoite to whom the admissions were made and to prove through electronic device the voluntary admissions by the two (2) accused that they raped and killed Shirley Victore. The defense objected to its acceptance on the ground that its integrity had not been preserved as the tape could easily have been spliced and tampered with.[14] However, as Roland Almoite testified, it was the original copy of the taped interview; it was not altered; the voices therein were the voices of the two (2) accused; and, the defense never submitted evidence to prove otherwise. Under the circumstances, we are inclined, as was the lower court, to admit the authenticity of the taped interview. A review of the contents of the tape as included in Roland Almoite's testimony reveals that the interview was conducted

free from any influence or intimidation from police officers and was done willingly by the accused. Despite allegations to the contrary, no police authority ordered or forced the accused to talk to the radio announcer. While it may be expected that police officers were around since the interview was held in the police station, there was no showing that they were within hearing distance nor within the vicinity where the interview was being conducted. At most, the participation of the police authorities was only to allow Roland Almoite to conduct an interview. The taped interview likewise revealed that the accused voluntarily admitted to the rape-slay and even expressed remorse for having perpetrated the crime. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence.[15] By analogy, statements made by herein accused to a radio announcer should likewise be held admissible. The interview was not in the nature of an investigation as the response of the accused was made in answer to questions asked by the radio reporter, not by the police or any other investigating officer. When the accused talked to the radio announcer, they did not talk to him as a law enforcement officer, as in fact he was not, hence their uncounselled confession to him did not violate their constitutional rights. Sections 12, pars. (1) and (3), Art. III, of the Constitution do not cover the verbal confessions of the two (2) accused to the radio announcer. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights enumerated under Sec. 12, Art. III, are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth.[16] The Bill of Rights does not concern itself with the relation between a private individual and another individual.[17] It

governs the relationship between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. They confirm that certain rights of the individual exist without need of any governmental grant, rights that may not be taken away by government, rights that government has the duty to protect.[18] Governmental power is not unlimited and the Bill of Rights lays down these limitations to protect the individual against aggression and unwarranted interference by any department of government and its agencies. The admissions of the accused before the radio announcer and duly tape-recorded are further bolstered and substantiated by the findings of the NBI Medico-Legal Officer as reflected in the Autopsy Report/Post Mortem Findings. The narration of the accused Apolonio Medina that Asing boxed the victim, who was struggling as she was being raped,[19] was proved by the Autopsy Report stating that the victim suffered contusions on the leg, right, lateral aspect, middle third, etc.;[20] that accused Pacito Ordoo boxed the face of the victim to make her weak[21] was proved by the testimony of the NBI MedicoLegal Officer that there was blackening on the face of the victim due to hematoma caused by violence or boxing on her face;[22] and, that accused Pacito Ordoo hanged the victim on a tree by tying a vine around her neck,[23] was proved by the finding of a depressed mark involving the anterior and lateral portions of the neck.[24] As to the assertion of the accused that they were tortured and subjected to inhuman treatment, we find such allegations baseless. The accused were given several opportunities to decry the maltreatment they allegedly suffered in the hands of the police but at no time did they complain about it. First, they could have told the radio announcer outright of the abuses they were subjected to before signing their confessions. Second, when they were brought before the PAO lawyer they likewise did not make any such claims but instead chose to ponder over the lawyer's advice and deferred the signing of their confessions. Lastly, they had the chance to tell

the MTC judge about the fatal defect of their confessions, if there was any, when the latter asked them whether they voluntarily signed the same and whether coercion was used in extracting their confessions; however, they answered in the negative. The accused cannot therefore on a later date make assertions that they were maltreated when at no time - during their detention and when they were in the presence of persons who could have helped them - did they make such complaints. The doctor who physically examined them further disproved their assertions when she testified thus FISCAL TECAN: Q:....Now, you said that you talked with the prisoners, Pacito Ordoo and Apolonio Medina, what did you actually tell them? A:....I said, "What do you feel on your body?" and I also said, "What part of your body are (sic) painful?" Q:....What did they answer? A:....They did not answer me, sir. Q:....More or less, how many questions did you ask? A:....Only that, sir. Q:....After you have observed the prisoners, did you notice any injury? A:....None, sir x x x x Q:....x x x x You noticed any injury on their bodies? A:....None, sir, that is why I looked to see what was really painful.[25] Considering that the doctor was a witness for the defense, it was surprising that she never mentioned about any maltreatment. She saw not a single scratch on the bodies of

the accused. She even inquired into their physical well-being but they did not tell her of any pain or injury. They could have easily asked the doctor for immediate treatment if indeed they were physically harmed, but they did not. This puts their claim of maltreatment into serious doubt. With this, the testimony of the mother of the accused Apolonio Medina alleging that the police refused treatment for her son despite his critical condition becomes a fabrication, a mere figment of the imagination. As found by the lower court, her tale of buying an antibiotic for her son, all on her own, without the prescription of a doctor, is hard to believe since she is already an elderly woman, seventy-three (73) years of age, unschooled and illiterate.[26] To further exculpate themselves, the accused invoked alibi. Ordoo testified that at the time of the incident he was at work in the place of Barangay Captain Valentin Oriente,[27]while Medina claimed that he went to carry bananas for a certain aunt Resurreccion.[28] However, such allegations deserve no credit as alibi becomes worthless when it is established mainly by the accused themselves.[29] The defense of alibi is always considered with suspicion and received with caution, not only because it is inherently weak and unreliable, but also because it can easily be fabricated.[30] Quite interestingly, Bgy. Capt. Valentin Oriente was presented as a witness for the prosecution, not for the defense, while "aunt Resurreccion" was not presented at all. Bgy. Capt. Oriente testified that Pacito Ordoo did not work with him on 2 August 1994; on the contrary, he saw him on the bridge at Sitio Guesset.[31] Other than their lame assertions that they were with the above-mentioned persons, the accused failed to substantiate their defense and to give details on what transpired that fateful day, especially since they were in the same town where the crime happened. For alibi to Prosper, it must be convincing, enough to preclude any doubt about the physical impossibility

of the presence of the accused at the locus criminis or its immediate vicinity at the time of the incident.[32] Since the accused failed to convince the Court otherwise, their defense must fall. The lack of prior design or plan to rape and kill the victim prior to the commission of the crime does not negate conspiracy. For conspiracy to exist, proof of an actual planning of the perpetration of the crime is not a condition precedent. It is sufficient that at the time of the commission of the offense the accused had the same purpose and were united in its execution. From the foregoing, it is evident that the accused helped each other in carrying out their beastly acts. The taped interview as played in open court clearly revealed thus (STATEMENT OF ACCUSED APOLONIO MEDINA) INTERPRETER: When I was walking there already about to be near him, he was already holding the woman and said, come and help me because I was (sic) not feeling well. Well, I was shocked of what I saw, sir. But later on, as usual I regained my composure and so I finally went to help him, sir. FISCAL TECAN: We will continue, Your Honor. INTERPRETER: And then we laid her down among the bushes then Asing boxed her because she was struggling, Your Honor. And Asing did what he wanted, sir. And then he asked me to take my turn and then I went outside to look and see if there are (sic) people and then Asing went to get a vine, sir. And when I arrived at their place, he was already tieing (sic). After that, we left for home, sir.[33] xxx (STATEMENT OF ACCUSED PACITO ORDOO)

Q:....But Apolonio Medina was already there as your companion? A:....He was there already, sir. He was the one who held her legs, sir. Q:....Who was the first one to rape or use her? A:....Me, sir. And after that, Apolonio Medina, sir. Q:....And after you were through, what did you do, was she still conscious? A:....She was practically unconscious, sir. Q:....What did you do then? A:....We tied her neck and hanged her on a tree, sir.[34] The modifying circumstance of conspiracy being present, each of the accused shall be liable for the other's acts as well. Article 335 of the Revised Penal Code provides that "when by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death." In 1971, in People v. Jose[35] this Court convicted the four (4) accused with forcible abduction with rape, and three (3) counts of simple rape, and imposed upon each of the accused four (4) death penalties in view of the existence of conspiracy. In 1981, in People v. Yutila[36] this Court affirmed the judgment of the court a quo declaring each of the three (3) accused guilty of the special complex crime of rape with homicide and sentenced each of them to suffer a single penalty of death. However, Justice Barredo in his separate opinion interposed that in accordance with the doctrine laid down in the Jayme Jose case, three (3) death penalties should have been imposed on each of the accused. In People v. Vizcarra[37] where the four (4) accused were charged with rape with homicide, the Court held that only one

of them should be held liable for the crime of rape with homicide and all the rest for simple rape. But since four (4) successive offenses were charged and proved, each of the accused was imposed four (4) death sentences for four (4) separate and distinct crimes of rape. The existence of conspiracy among them, the overwhelming evidence as to the nature and the number of crimes committed, as well as the attendance of the aggravating circumstances, fully justified the imposition of four (4) death penalties. In 1988, in People v. Dio[38] where the three (3) accused took turns in ravishing the victim and thereafter killed her, the Court declared each of them guilty of three (3) crimes of rape with homicide and sentenced each of them to three (3) penalties of reclusion perpetua. The penalty in fact should have been death but with its proscription in the 1987 Constitution the penalty imposed was reduced to reclusion perpetua. In 1991, in People v. Flores[39] a registered nurse was successively raped by four (4) men and then killed. The trial court convicted each of them with the special complex,crime of multiple rape with homicide on four (4) counts and as a consequence thereof sentenced each of them to four (4) death penalties. This Court affirmed the decision of the lower court with the modification that the accused should instead suffer four (4) penalties of reclusion perpetua by reason of the constitutional proscription on the imposition of the death penalty. The four (4) death penalties for each of the appellants were explained to be ordained by the fact that conspiracy had been established beyond reasonable doubt. In 1996, in People v. Laray[40] this Court convicted two (2) of the accused charged therein with multiple rape and sentenced each of them to suffer two (2) counts of reclusion perpetua because of the existence of conspiracy. Accordingly, herein accused Pacito Ordoo and Apolonio Medina should be held liable for the special complex crime of

rape with homicide on two (2) counts as defined and penalized in Art. 335 of the Revised Penal Code as amended by RA 7659. We have held that the indemnification of the victim shall be in the amount of P100,000.00 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws.[41] In addition, this Court has likewise ruled that in crimes of rape the amount of P50,000.00 as moral damages must be awarded to the victim without need of proof nor even pleading the basis thereof.[42] Four (4) Justices of the Court however continue to maintain the unconstitutionality of RA 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. WHEREFORE, the 11 December 1997 Judgment rendered by the Regional Trial Court-Branch 34, Balaoan, La Union, is AFFIRMED with the MODIFICATION that the two (2) accused PACITO ORDONO y NEGRANZA alias ASING and APOLONIO MEDINA y NOSUELO alias POLING are held guilty beyond reasonable doubt of the special complex crime of rape with homicide on two (2) counts and are sentenced each to two (2) DEATH PENALTIES. Each of the accused is further ordered to indemnify the heirs of Shirley Victore in the amount of P200,000.00 as civil indemnity and P100,000.00 for moral damages for both counts of rape. Costs against both accused. In consonance with Sec. 25 of RA 7659 amending Art. 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of his pardoning power. SO ORDERED.

Davide, Jr., C.J., Bellosillo, Melo, Puno, vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur. PEOPLE OF THE PHILIPPINES, PlaintiffAppellee, v. EDUARDO PAVILLARE y VARONA and SOTERO SANTOS y CRUZ,accused, EDUARDO PAVILLARE y VARONA, Accused-Appellant. DECISION PER CURIAM : Before us is an appeal from the decision of the Regional Trial Court of Quezon City, Branch 219 in Criminal Case no. Q9665214 entitled People v. Eduardo Pavillare y Varona, a prosecution for kidnapping for ransom. On March 14, 1996 the accused-appellant and his co-accused were criminally charged as follows: INFORMATION "The undersigned accuses EDUARDO PAVILLARE Y VARONA and SOTERO SANTOS Y CRUZ of the crime of kidnapping for Ransom, committed as follows: That on or about the 12th day of February, 1996,in Quezon City, Philippines, the above-named accused, conspiring, confederating with another person, whose truename, identity and whereaboutshad not as yet beenascertained and mutually helping one another, by means of force, violence and /or intimidation did then and there, willfully, unlawfully and feloniously kidnap one SUKHJINDER SINGH at the corner ofout Reyes and Roces Avenue, this City, and thereafter brought him at the corner of Aurora Boulevard and Boston street, this City, for the purpose of extorting ransom money in the amount of P20,000.00 Philippine currency, thereby detaining and depriving him of his liberty for more than three

hours, to the damage and prejudice of the said offended party." On April 29, 1996 both accused were arraigned and both pleaded "not guilty". The accused Sotero Santos y Cruz filed a Motion to Dismiss the charge against him for failure of the private complainant to identify him as one of the malefactors. On February 28, 1997 the trial court granted the motion and acquitted accused Sotero Santos. The trial of the case proceeded only as against the accused-appellant Pavillare. The private complainant, an Indian national named Sukhjinder Singh testified in court that at about noon of February 12, 1996 while he was on his way back to his motorcycle parked at the corner ofout Reyes and Roces Avenue, three men blocked his way. The one directly in front of him, whom he later identified as herein accused-appellant, accused him of having raped the woman inside the red Kia taxi cab parked nearby. Singh denied the accusation, the three men nevertheless forced him inside the taxi cab and brought him somewhere near St Joseph's College in Quezon City. One of the abductors took the key to his motorcycle and drove it alongside the cab. Singh testified that the accused-appellant and his companions beat him up and demanded one hundred thousand pesos (P100,000.00) for his release but Singh told him he only had five thousand pesos (P5,000.00) with him. The accusedappellant forced him to give the phone numbers of his relatives so they can make their demand from them. Singh gave the phone number of his cousin Lakhvir Singh and the appellant made the call. The private complainant also stated in court that it was accused-appellant who haggled with his cousin for the amount of the ransom.1 When the amount of twenty five thousand was agreed upon the complainant stated that the kidnappers took him to the corner of Aurora Boulevard and Boston streets and parked the cab there. The accusedappellant and two of the male abductors alighted while the

driver and their lady companion stayed with the complainant in the car. When the complainant turned to see where the accused-appellant and his, companions went he saw his uncle and his cousin in a motorcycle and together with the kidnappers they entered a mini-grocery. Later the kidnappers brought the complainant to the mini-grocery where he met his relatives. The ransom money was handed to the appellant by the complainant's cousin, after which the accused-appellant counted the money and then, together with his cohorts, immediately left the scene.2 Lakhvir Singh, the complainant's cousin, testified in court that the kidnappers made about three to four phone calls a few minutes apart. The kidnappers allowed him to talk to the private complainant to prove that he is indeed in their custody. The kidnappers also told Lakhvir that his cousin, Sukhjinder, raped their companion and threatened that unless Lakhvir pays one hundred thousand pesos for Sukhjinder's release "tutuluyan namin ito". Lakhvir told the kidnappers he does not have that much money and after some haggling the kidnappers settled for twenty five thousand pesos.3 The kidnappers also gave instructions to deliver the money outside the Aurora Boulevard branch of the Land Bank near the old Arcega's movie house. Lakhvir stated in court that he did as instructed. When he and another relative reached the designated place three men approached him and one of them, whom he identified in court as the accused-appellant herein, asked him "Ano dala mo ang pera?" Lakhvir said "yes" but, he refused to give the money until he saw his cousin. One of the kidnappers told him to follow them and they proceeded to a mini-grocery nearby. A few minutes later one of the kidnappers came with his cousin. Lakhvir handed the money to the accused-appellant who counted it before leaving with his companions.4 SPO1 Eduardo Frias testified for the prosecution that he was the police officer who took the sworn statement of the private complainant on February 14, 1996 pertainingto the February

12, 1996 incident.5 When the accused-appellant was apprehended in connection with another case involving the kidnapping of another Indian national the private complainant herein again showed up at the police station on March 11, 1996 and identified the accused-appellant as one of his kidnappers. Another sworn statement was executed by the private complainant after he identified the accused-appellant at the police station.6 For the defense, the accused-appellant testified that on the whole day of February 12, 1996, the alleged date of the incident, he was at theb site in Novaliches where he had contracted to build the house of a client and that he could not have been anywhere near Roces Avenue at the time the complainant was allegedly kidnapped.7 One of his employees, an electrician, testified that the accused-appellant was indeed at theb site in Novaliches the whole day of February 12, 1996.8 On July 15, 1997 the trial court rendered judgment as follows: "WHEREFORE, finding EDUARDO PAVILLARE guilty beyond reasonable doubt of having committed the crime of kidnapping for the purpose of ransom, the Court hereby sentences him to suffer the penalty of Death; to indemnify the private complainant in the amount of P20,000.00, as actual damages, with interest at 6% percent per annum from February 12, 1996; to pay him the amount of P50,000.00 as moral damages; and to pay the costs. The Branch clerk of Court is hereby directed to immediately transmit the entire records of the case to the Supreme Court for automatic review."9 This, case is before us on automatic review. The accused-appellant Pavillare prays for an acquittal based on reasonable doubt. On March 10, 1996 the accusedappellant was apprehended in connection with the kidnapping of another Indian national. While under police custody the

appellant was required to stand in a police line-up where he was supposedly identified by the private complainant as one of his abductors. Five separate charges arising from five separate incidents of kidnapping, all of whom were Indian nationals, were filed against him. He claims that he was identified by the private complainant as one of his abductors because the Indians needed a "scapegoat" for the other four cases of kidnapping of Indian nationals then pending. The appellant argues that the private complainant could not identify his captors by himself which is shown by the inconsistencies in his testimony and by the improper suggestion made by the investigating police officer pointing to the accused-appellant as one of the malefactors. In court the private complainant stated that he described his abductors to the police investigator while the latter typed his sworn statement. He said that two of the abductors look like policemen, the third one was "tall, a little bit aged" and the other one was the driver. Their female companion was pretty. Pavillare points out however, that the sworn statement given by the private complainant does not contain a physical description of the kidnappers and that SPO1 Frias, who took the complainant's statement, testified in court that the complainant described one of his abductors as short, bejeweled and with a pock marked face. The different descriptions allegedly given by the private complainant and the absence of a physical description of the kidnappers in his sworn statement supports the accused-appellant's contention that the complainant could not describe his abductors. Pavillare contends that his arrest in connection with a different case for the kidnapping of another Indian national provided the complainant an improper suggestion that he was indeed one of the culprits in this case. The appellant claims that SPO1 Frias pointed to him and conversed with the private complainant before the latter was asked to identify the kidnappers. The time interval from the date of the incident on February 12, 1996 up to the day the accused-appellant was

identified at the police line-up on March 11, 1996 further weakened the complainant's vague recognition of the culprits. Pavillare finally argues that he should not have been convicted of kidnapping for ransom but only of simple robbery as it is borne by the undisputed facts that the offenders were motivated by an intent to gain and not to deprive the complainant of his liberty. The money demanded by the offenders was not ransom money but one in the nature of a bribe to drop the accusation for rape of their lady companion. The Solicitor-General filed brief praying for the affirmance in toto of the appealed decision. The appellee contends that in court the private complainant unhesitatingly and consistently identified the accused-appellant Pavillare as one of the kidnappers. Throughout his narration of the incident in court the complainant referred to Pavillare as one of the kidnappers because he was the one who made the phone call and the one who received the ransom money. The complainant had more than adequate opportunity to observe his abductors and he testified in court that Pavillare is one of them. As a sign of the complainant's candor, he admitted in court that he does not recognize the other co-accused, Sotero Santos, as one of his abductors and for which reason the case was dismissed against him. The complainant's failure to state an accurate description of the kidnappers in his sworn statement does not belie his identification of Pavillare in court as it is the general rule that affidavits are often inaccurate and incomplete. The argument of the accused-appellant that his identification in the police line-up was made with improper motive either from the other Indian nationals who were at the police station or from SPO1 Frias is without evidentiary basis. Moreover, the complainant's testimony is corroborated by the testimony of his cousin who met the kidnappers and handed over the ransom money to them. The trial court did not err in giving credence to the complainant's identification of Pavillare as one of the abductors.

The Solicitor-General further contends that the accusedappellant's alibi that he was in Novaliches when the crime was committed cannot stand against the positive identification of two witnesses and that his alibi does not make it physically impossible for him to be at the crime scene at the time it happened. As regards accused-appellant's plea to be convicted instead of simple robbery is without legal nor factual basis. The complainant was restrained of his liberty even if only for a few hours and his captors demanded money for his release which in fact they did after the ransom money was paid. Whether or not the kidnappers only wanted money from the complainant the manner by which they compelled him to give money, i.e. by restraining his liberty until the ransom money was paid, constitutes kidnapping for ransom. Finally, the submission that the offenders demanded a bribe and not ransom money is likewise unfounded. There is no evidence that any one of the kidnappers was a public officer in the performance of his duties when they demanded money from the complainant in exchange for his liberty. Accused-appellant Pavillare filed Reply brief to reiterate his contention that the prosecution did not controvert his testimony to the effect that the complainant could not recognize his abductors and that it was SPO1 Frias who pinpointed him to the private complainant as one of the malefactors. Pavillare cites the complainant's failure to identify his own relative who met him at the police station after the arrest of the accusedappellant and argues that considering that the complainant was held captive only for about two hours and the interval of almost one month from the day of the incident up to the time the accused-appellant was identified at the police line-up, the complainant was deprived of any reliable recollection of his captors. The complainant's failure to give a physical description of the abductors when he gave a sworn statement to the police two days after the incident supports the accusedappellant's contention that the complainant could not identify his captors. It is also claimed that the improper identification of

the accused-appellant at the police line-up without the assistance of counsel renders the said identification, including that made in court inadmissible in evidence. The appeal is without merit. The accused-appellants defense that the identification made by the private complainant in the police line-up is inadmissible because the appellant stood at the line-up without the assistance of counsel is without merit. Section 12 (1) Art III of the Commission states that "Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent counsel preferably of his own choice. If the person cannot afford the services of counsel, he must be provided with one. These rights cannot be waived except in writing and in the presence of counsel." Thus the prohibition for custodial investigation conducted without the assistance of counsel. Any evidence obtained in violation of the constitutional mandate is inadmissible in evidence.10 The prohibition however, does not extend to a person in a police line-up because that stage of an investigation is not yet a part of custodial investigation.11 It has been repeatedly held that custodial investigation commences when a person is taken into custody and is singled out as a suspect in the commission of the crime under investigation and the police officers begin to ask questions on the suspect's participation therein and which tend to elicit an admission.12 The stage of an investigation wherein a person is asked to stand in a police line-up has been held to be outside the mantle of protection of the right to counsel because it involves a general inquiry into an unsolved crime and is purely investigatory in nature.13 It has also been held that an uncounseled identification at the police line-up does not preclude the admissibility of an in-court identification.14 The identification made by the private complainant in the police line-up pointing to Pavillare as one of his abductors is admissible in evidence although the accused-

appellant was not assisted by counsel. In court, the private complainant positively identified Paviallare as one of his captors and testified as follows: "Q:.....Were you able to recognize the faces of the men and woman who abducted you on the afternoon of February 12, 1996? A:.....Yes, sir I can recognize if I see them again. Q: .....If you see them in court will you be able to identify them? A: .....Yes, sir. Q:.....Please point to them if the accused are inside the court room? A: .....That man, sir. INTERPRETER: Witness pointing at a man seated inside the court room and when asked to identify himself he gave his name as Eduardo Pavillare. ATTY. CRUZ: Q:.....Other than the accused Pavillare, do you recognize anybody else in this court room if among those who abducted you in the afternoon of February 12, 1996? A:.....None, sir. Q:.....Tell us how were you abducted by the accused Pavillare and his companions in that particular date in the afternoon of February 12, 1996? A:.....While I was returning to my motorcycle, they blocked my way and asked for my name, sir. ATTY. CRUZ:

Q: .....Who blocked your way and asked for your name? A: .....He was infront of his companions, sir. INTERPRETER: Witness referring to accused earlier identified as Eduardo Pavillare. x x x............................x x x............................x x x ATTY. CRUZ: Q:.....If you know, Mr. Singh, where were you taken by the accused after they abducted you at the corner of Roces Avenue andout Reyes St., Quezon City? A:.....It was a deserted street somewhere in St. Joseph College, Quezon City, sir. Q:.....After you reached that deserted place, what happened next, if any? A:.....They asked me for P100,000.00 and I told them that I have only P5,000,00 and they told me that if I give P 100,000.00 they will let me go, sir. Q:.....Who demanded the amount of P100,000.00 from you? WITNESS: A:.....He is the one, sir. INTERPRETER: Again, witness pointing to the accused earlier , identified as Pavillare. x x x............................x x x............................x x x ATTY. CRUZ:

Q:.....Could you tell us what did your abductors tell to Lakhvir while they are talking over the telephone? A:.....They told him that they should pay the amount of money for my release, sir. Q:.....Incidentally, can you tell us who among your abductors who actually talked to Lakvir over the telephone? A:.....He is the one, sir. INTERPRETER: Again, witness is referring to accused earlier identified as Pavillare. ATTY. CRUZ: Q:.....Why do you know that it was the accused Pavillare who was talking to Lakhvir over the telephone? A:.....Because I was near him and I saw him talking to Lakhvir, sir. x x x............................x x x............................x x x ATTY. CRUZ: Q:.....Where did the two of you go? A:.....Inside the mini-grocery, sir. Q:.....After you went inside this mini-grocery, what happened next, if any? A:.....I saw my cousin Lakhvir. He asked me if I am okey and I told him that they bit me up but I am still fine, sir. Q:.....After you told your cousin that you are okey except for the beating that you got but you are fine, what transpired next, if any?

A: .....Lakhvir gave the P20,000.00, sir. ATTY. CRUZ: Q: .....To whom did Lakhvir handed the P20,000.00? A: .....To him sir. INTERPRETER: Witness pointed to the accused Pavillare earlier identified. ATTY. CRUZ: Q:.....Why do you know that only P20,000.00 was handed over by accused Pavillare? A:.....Because they counted the money and they complained about it, sir. Q:.....Who counted the money? A:.....He was the one who counted the money, sir. INTERPRETER: Witness pointing to accused Pavillare earlier identified. ATTY. CRUZ: Q:.....Were you present when Pavillare counted the money? A:.....Yes, sir. Q:.....After Pavillare got the P20,000.00, what happened next, if any? A:.....They left immediately and they left me too, and we went to get my Motorcycle, sir."15 On cross-examination the complainant stood firm on his identification of the accused-appellant as one of the abductors. He testified:

"ATTY. MALLABO: Q:.....You said that at approximately 12:00 o'clock noon of February 12, 1996 while, you are going back to your motorcycle you were blocked by four persons, is that correct? ATTY. CRUZ: ..... Misleading, he said 3 persons, your Honor. COURT: Reform. ATTY. MALLABO: Q:.....You were blocked, by 3 persons, is that correct?. A:.....Yes, sir. Q:.....Who was the person immediately in front of you when you were blocked? A:.....He was the one, sir. INTERPRETER: Witness pointing to accused Eduardo Pavillare which was earlier identified. ATTY. MALLABO: Q:.....What about the two (2) other persons? WITNESS: A:.....They were behind me, sir. ATTY. MALLABO: Q:.....What was the distance if you can tell us?

A:.....Almost together and then when they asked me my name I replied and they hold my arms, sir. Q:.....Who hold your arms? A:.....He was the first, sir. INTERPRETER: Witness pointed to accused Eduardo Pavillare which was identified earlier. x x x............................x x x............................x x x ATTY. MALLABO: Q:.....You said that there were 5 persons who abducted you? A:.....Yes, sir, 4 male and one female. Q:.....On March 11, 1996 your cousin informed you or your friend informed you that there were persons apprehended because also of kidnapping incident? A:.....Yes, sir. There were 4 of them arrested and when I went to see them I only recognized one of them, sir. ATTY. MALLABO: Q:.....Who was that person? A:..... He is the one, sir. INTERPRETER: x Witness pointing to accused Eduardo Pavillare. ATTY. MALLABO: That would be all for the witness, your Honor. COURT:

Any redirect? ATTY. CRUZ: Few redirect, your Honor. ATTY. CRUZ: Q:.....Mr. Witness, before you went to the police station on March 11, 1996 you were aware of how many suspects were in custody of kidnapping of Gormel, is it not? A:.....Yes, sir they were 4 of them. Q:.....You were aware that 4 persons were arrested for the kidnapping of your friend Gormel? A:.....Yes, sir. Q:.....These 4 people were shown to you, were they not? A:.....Yes, sir. ATTY. CRUZ: Q:.....But when you were asked to identify who among them were involved in your kidnapping you only pointed one of them? A:.....Yes, sir. Q:..... You did not point to the other accused? A:.....No, sir. Q:.....The only one whom you pointed as being involved in your kidnapping was none other than the person of the accussed Pavillare? A:.....Yes, sir."16

Moreover, the complainant's cousin Lakhvir Singh who met the kidnappers to pay the ransom money corroborated the complainant's identification of the accused-appellant Pavillare. Lakhvir Singh testified as follows: "Q:.....After reaching the designated area somewhere along Aurora Boulevard, what happened next, if any? A:.....As we parked our motorcycle near Land Bank, the kidnappers immediately approached us, sir. Q:.....How many kidnappers approached you? A:.....Three (3) of them, sir. ATTY. CRUZ: Q:.....How were you able to know that they are the kidnappers? A:.....Because when they approached us one of them said: "Ano dala mo and pera?" Q:.....Tell us, were you able to recognize the faces of these three persons who approached you and demanded to you whether you brought the money? A:.....Yes, sir. Q:.....If you see anyone inside the courtroom, please point to him. INTERPRETER: Witness pointing at a man sitting inside the courtroom and when asked to identify himself, he gave his name as EDUARDO PAVILLARE. ATTY. CRUZ: Q:.....After Pavillare demanded to you whether you brought with you the money, what did you do next, if any?

A:.....I told them "I have the money with me but I would not hand the money to you until I see Sukhjinder Singh." Q:.....What was the response of the accused Pavillare after you told him that Sukhjinder Singh be first shown to you before you turn over the money? A:.....One of them told us to follow him and they would bring Sukhjinder Singh, sir. Q:.....From that place, where did you go if you can still recall? A:.....We proceeded to a small grocery store near Land Bank, sir. Q:.....After going inside this grocery store near Land Bank, tell us what happened next, if any? A:.....After a few minutes, one of the kidnappers arrived together with Sukhjinder Singh, sir. ATTY. CRUZ: Q:.....After you saw Sukhjinder Singh together with one of his kidnappers, what did you do next, if any? A:.....I immediately approached Sukhjinder Singh and I asked him if he was hurt by the kidnappers and he said "yes but I am now okey." Q:.....After Sukhjinder confirmed to you that he was previously beaten and that he was already okey at that time, what did you do next, if any? WITNESS: A:.....After that, one of the kidnappers said: "Andiyan na ang tao ninyo ibinigay mo sa akin ang pera". ATTY. CRUZ: Q:.....Who among the kidnappers who said that?

A:.....That person, sir. INTERPRETER: Witness pointing to the accused earlier identified as Eduardo Pavillare. ATTY. CRUZ: Q:.....After Pavillare demanded that you turn-over to him the money, what did you do next, if any? A:.....I gave him the money, sir. Q:.....When you said "him", to whom are you referring to? A:.....To him, sir. INTERPRETER: Witness pointing to the accused earlier identified as Eduardo Pavillare. ATTY. CRUZ: If you recall, how many money all in all did you give to Eduardo Pavillare that afternoon of February 12, 1996? A:.....P20,000.00, sir.17 x x x............................x x x............................x x x We find that the trial court did not err in giving due weight and credence to the identification in open court of the accusedappellant by the private complainant and his cousin as one of the kidnappers. Both witnesses had ample opportunity to observe the kidnappers and to remember their faces. The complainant had close contact with the kidnappers when he was abducted and beaten up, and later when the kidnappers haggled on the amount of the ransom money. His cousin met Pavillare face to face and actually dealt with him when he paid the ransom money. The two-hour period that the complainant

was in close contact with his abductors was sufficient for him to have a recollection of their physical appearance. Complainant admitted in court that he would recognize his abductors if he sees them again and upon seeing Pavillare he immediately recognized him as one of the malefactors as he remembers him as the one who blocked his way, beat him up, haggled with the complainant's cousin and received the ransom money. As an indicium of candor the private complainant admitted that he does not recognize the coaccused, Sotero Santos for which reason the case was dismissed against him. It bears repeating that the finding of the trial court as to the credibility of witnesses is given utmost respect and as a rule will not be disturbed on appeal because it had the opportunity to closely observe the demeanor of the witness in court. As regards the alibi forwarded by the appellant, we find that the positive identification made by two eyewitnesses for the prosecution pointing to the appellant as one of the kidnappers prevails over it. The appellant's employee who testified to corroborate his alibi only stated that in the month of February 1996 the accused-appellant was at the Novalichesb site everyday18 The trial court properly took judicial notice that it will take only a few hours drive from Novaliches, where the accused-appellant claimed to be on the day of the incident, to Roces Ave., in Quezon City,where the complainant was kidnapped.19 Absent any competent proof that Pavillare could nothave been at the scene of the crime at the time and day it was committed, the trial court correctly denied weight and credence to the appellant's alibi. Pavillare's argument that the complainant could not have identified his abductors were it not for the improper suggestion made by the police investigator is based on the bare and uncorroborated allegation of the accused-appellant himself. The police investigator was not confronted with this accusation20 and the defense did not present any evidence to support it. It is on record that when Pavillare's counsel made

an attempt to question the police investigator, SPO1 Frias, on a matter not covered by the direct examination, i.e., where SPO1 Frias recorded the physical description given by the complainant of his abductors, the trial court suggested that the defense may later call SPO1 Frias to the stand as a defense witness apparently to give the defense a chance to prove its allegation that the complainant did not give any physical description of his abductors and that the identification at the police line-up is tainted with an improper suggestion.21 The defense counsel never called SPO1 Frias to the stand. The appellant must prove the veracity of his own defense22 and the prosecution could not controvert what was not presented in evidence. In the same vein, the defense did not present any competent proof that Pavillare was identified by the complainant only as a scapegoat for the four other kidnapping cases committed against other Indian nationals. The cited variance between the complainant's testimony in court and his affidavit on whether or not the complainant gave a physical description of his abductors before the police investigator pertains to a minor detail. Both the complainant and police investigator SPO1 Frias testified that the former gave a physical description of the abductors to the police. The complainant testified that he gave the physical description of the kidnappers while the police typed his affidavit but no such physical description of the kidnappers is stated in the affidavit. On the other hand, the police investigator testifiedthat the said description was entered in the police logbook. The defense never requiredSPO1 Frias to produce the logbook in court to ascertain whether such a description was given during the investigation. As a rule, variance between the private complainant's affidavit and his testimony in court, as long as it does not deviate from the nature of the crime as stated in the Information, does not weaken the credibility of the testimony in court.23 Finally, the accused-appellant's argument that he should have been convicted of simple robbery and not kidnapping with

ransom because the evidence proves that the prime motive of the accused-appellant and his companions is to obtain money and that the complainant was detained only for two hours, are both unmeritorious. Art. 267 of the Revised Penal Code states: Art. 267. Kidnapping and serious illegal detention.- any private individual who shall kidnap or detain another, or in any other manner deprive him of liberty, shall suffer the penalty of reclusion perpetua to death; 1......If the kidnapping or detention shall have lasted more than three days. 2......If it shall have been committed simulating public authority. 3......If any serious physical injuries shall have been inflicted upon the person kidnapped or detained; or if threats to kill him shall have been made. 4......If the person kidnapped or detained shall be a minor, except when the accused is any of the parents, female or a public officer. The penalty shall be death where the kidnapping or detention was committed for the purpose of extorting ransom from the victim or any other person, even if none of the circumstances above mentioned were present in the commission of the offense. When the victim is killed or dies as a consequence of the detention or is raped, or is the subjected to torture or dehumanizing acts, the maximum penalty shall be imposed.24 The testimonies of both the private complainant and his cousin are replete with positive declarations that the accusedappellant and his companions demanded money forthe complainant's release. The pretense that the money was supposedly in exchange for the dropping of the charges for rape is not supported by the evidence. The complainant's cousin testified that at the agreed drop-off point Pavillare

demanded the ransom money and stated, "Andiyan na ang tao ninyo ibigay mo sa akin ang pera". The accused-appellant released the complainant when the money was handed over to him and after counting the money Pavillare and his companions immediately left the scene. This clearly indicated that the payment of the ransom money is in exchange for the liberty of the private complainant. The death penalty was properly imposed by the trial court.25 The duration of the detention even if only for a few hours does not alter the nature of the crime committed. The crime of kidnapping is committed by depriving the victim of liberty whether he is placed in an enclosure or simply restrained from going home.26 As squarely expressed in Article 267, abovequoted the penalty of death is imposable where the detention is committed for the purpose of extorting ransom, and the duration of the detention is not material. Four Members of the court maintain their position that RA 7659 is unconstitutional insofar as it prescribes the death penalty. Nonetheless they submit to the ruling of the majority of this Court i.e., that the law is constitutional and the death penalty should be imposed in this case. WHEREFORE , the decision of the Regional Trial Court of Quezon City in Criminal Case No. Q96-65214 finding the accused-appellant Eduardo Pavillare y Varona guilty of kidnapping for ransom and imposing the DEATH penalty and the awards for actual and moral damages is AFFIRMED in toto. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, Vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, Ynares-Santiago, and De Leon, Jr., JJ., concur.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PACITO ORDOO Y NEGRANZA alias ASING and APOLONIO MEDINA Y NOSUELO alias POLING, accused-appellants. DECISION PER CURIAM: COURTS are confronted, repeatedly, with the difficult task of scrutinizing the sufficiency of extrajudicial confessions as basis for convicting the accused. The drive to apprehend the culprits at any cost, particularly in crimes characterized by brutality and savagery, not too infrequently tempts law enforcement agencies to take unwarranted shortcuts and disregard constitutional and legal constraints that are intended to ensure that only the guilty are punished. In the delicate process of establishing guilt beyond reasonable doubt, courts play a crucial role in assuring that the evidence gathered by government agents scrupulously meets the exacting constitutional standards which if not met impose a strict exclusionary rule, i.e., "any confession or admission obtained in violation of Art. II, Sec. 12 (1), shall be inadmissible in evidence." This case is on automatic review of the 11 December 1997 Decision of the Regional Trial Court, Br. 34, Balaoan, La Union, in Crim. Case No. 2415 finding both accused Pacito Ordoo y Negranza alias Asing and Apolonio Medina y Nosuelo alias Poling guilty beyond reasonable doubt of rape with homicide and imposing upon each of them two (2) separate death penalties. The records show that on 5 August 1994 the decomposing body of a young girl was found among the bushes near a bridge in Barangay Poblacion, Santol, La Union. The girl was later identified as Shirley

Victore, fifteen (15) years old, a resident of Barangay Guesset, Poblacion, Santol, La Union, who three (3) days before was reported missing. Post-mortem examination conducted by Dr. Arturo Llavore, a medico-legal officer of the NBI, revealed that the victim was raped and strangled to death. Unidentified sources pointed to Pacito Ordoo and Apolonio Medina as the authors of the crime. Acting on this lead, the police thereupon invited the two (2) suspects and brought them to the police station for questioning. However, for lack of evidence then directly linking them to the crime, they were allowed to go home. On 10 August 1994 the accused Pacito Ordoo and Apolonio Medina returned to the police station one after another and acknowledged that they had indeed committed the crime. Acting on their admission, the police immediately conducted an investigation and put their confessions in writing. The investigators however could not at once get the services of a lawyer to assist the two (2) accused in the course of the investigation because there were no practicing lawyers in the Municipality of Santol, a remote town of the Province of La Union. Be that as it may, the statements of the two (2) accused where nevertheless taken. But before doing so, both accused were apprised in their own dialect of their constitutional right to remain silent and to be assisted by a competent counsel of their choice. Upon their acquiescence and assurance that they understood their rights and did not require the services of counsel, the investigation was conducted with the Parish Priest, the Municipal Mayor, the Chief of Police and other police officers of Santol, La Union, in attendance to listen to and witness the giving of the voluntary statements of the two (2) suspects who admitted their participation in the crime.

The first to confess was Apolonio Medina who in addition to the Parish Priest, the Mayor, the Chief of Police and the other police officers was also accompanied by his wife and mother. Apolonio Medina narrated that in the morning of 2 August 1994 while he was walking towards the house of Pacito Ordoo in Sitio Buacao, Poblacion, Santol, La Union, he noticed a young woman walking towards the school at the Poblacion. Upon reaching Sitio Buacao, he saw Pacito Ordoo standing along the road. When the woman reached him he suddenly grabbed her, held her tightly and covered her mouth with his right hand. As Medina neared them, Ordoo turned to him and said, "Come and help me, I am feeling uneasy." Although Medina claimed he was surprised at the request, he nonetheless went to Ordoo, helped him hold the legs of the young woman including her bag and umbrella and together they carried her to the bushes where they laid her down. Medina held her legs as requested while Ordoo continued to cover her mouth with his hand and boxing her many times on the head. When she was already weak and weary Ordoo knelt near her, raised her skirt and lowered her panty down to her knees. Medina continued to remove her panty as Ordoo removed his short pants, then his briefs. Ordoo then raped her, boxed her head continuously, with Medina continuously pinning her legs down and boxing those legs every time she struggled. After Ordoo had satiated himself Medina took his turn in raping the same victim with Ordoo holding her legs. After they were through, Medina left to watch out for intruders while Ordoo tied a vine around the girl's neck, hanged her on a tree that ended her life. Then, they went back to the road and parted ways.

After Medina said his piece, his wife and mother suddenly burst into tears. He then affixed his signature on his statement and so did his wife, followed by all the other witnesses who listened to his confession. Pacito Ordoo narrated his story in the afternoon. According to him, in the morning of 2 August 1994 he was on his way to Sitio Guesset, Barangay Manggaan, Santol, La Union, when he saw a girl followed by Apolonio Medina. When the girl was near him he immediately grabbed her and covered her mouth. Medina drew near, held her two legs, bag and umbrella and together they carried her into the thicket. After laying her down Ordoo boxed her breasts and face while Medina boxed her legs. When she became weak Ordoo raised her skirt and lowered her panty while Medina completely, removed it. Ordoo then removed his pants and walker briefs, went on top of Shirley and as Medina spread her legs Ordoo immediately inserted his penis into her vagina. After ejaculating Ordoo turned to Medina for him to take his turn in raping the girl. Ordoo was now holding her legs. At the end of his narration Ordoo affixed his thumbmark on his statement in lieu of his signature as he did not know how to write. Thereafter, Apolonio Medina and Pacito Ordoo were detained at the Santol police station. News about the apprehension and detention of the culprits of the rapeslay of Shirley Victore soon spread that Roland Almoite, leading radio announcer of radio station DZNL, visited and interviewed them. In the interview which was duly tape-recorded both accused admitted again their complicity in the crime and narrated individually the events surrounding their commission thereof. According to Medina, his remorse in having committed the crime was so great but his repentance came too late.[1] He and Ordoo hoped that the parents

of Shirley Victore would forgive them.[2] Upon conclusion of the interview, Roland Almoite immediately went to radio station DZNL and played the taped interview on the air. The same interview was played again on the air the following morning and was heard by thousands of listeners. A couple of days later, the police brought the two (2) accused to the office of the PAO lawyer in Balaoan, La Union, for assistance and counseling. In a closed-door session, PAO lawyer Oscar B. Corpuz apprised each of the accused of his constitutional rights and, even though their confessions were already written in their dialect, explained to them each of the questions and answers taken during the investigation. He likewise advised them to ponder the consequences of their confessions, leading them to defer the affixing of their second signature/ thumbmark thereon. After a week or so, the two (2) separately went back to Atty. Corpuz and informed him of their willingness to affix their signatures and thumbmarks for the second time in their respective confessions. Once again Atty. Corpuz apprised the two (2) accused of their constitutional rights, explained the contents of their respective statements, and finally, accompanied them to Judge Fabian M. Bautista, MTC judge of Balaoan, La Union, who further apprised the two (2) accused of their constitutional rights and asked them if they had been coerced into signing their confessions. They assured Judge Bautista that their statements had been given freely and voluntarily. Upon such assurance that they had not been coerced into giving and signing their confessions, Judge Bautista finally asked the accused Pacito Ordoo and Apolonio Medina to affix their signatures/ thumbmarks on their respective confessions, and to subscribe the same before him. Atty. Corpuz then signed their statements as their

assisting counsel, followed by a few members of the MTC staff who witnessed the signing. On arraignment, in a complete turnabout, the two (2) accused pleaded not guilty. In his defense, Pacito Ordoo testified that on 5 August 1994, while he was cooking at home, the police arrived and invited him to the headquarters for questioning. The police asked him his whereabouts on 2 August 1994 and he answered that he worked in the farm of Barangay Captain Valentin Oriente. According to Ordoo, the questioning took one (1) hour with the police boxing him several times on his stomach and on his side. They even inserted the barrel of a gun into his mouth in an effort to draw out answers from him. This being fruitless, he was placed in jail and released only the following morning, 6 August 1994. Three (3) days later, or on 9 August 1994, the police once again invited him to the headquarters where he was told that he was responsible for the rape and death of Shirley Victore. Accused Pacito Ordoo insisted on his innocence and maintained that he was working with a certain barangay captain; nonetheless, he was detained. Later that night the police took him out from jail and brought him to the room of investigator SPO4 Alfredo A. Ominga where he was hit with the butt of an armalite and forced to admit to the rape and slay of Shirley Victore. On 10 August 1994 SPO4 Alfredo A. Ominga took a typewriter and asked questions from him for one (1) hour without a lawyer assisting him nor a priest witnessing the investigation. A barrel of a gun was placed inside his mouth forcing him to admit the commission of the crime and to affix his thumbmark on the document. He was also brought to the office of the PAO lawyer twice but did not affix his thumbmark on

any document because he could not understand its contents. A radio announcer visited him inside his cell for an interview but he declined to answer his questions. He only answered the radio announcer during his fourth visit when SPO4 Alfredo A. Ominga threatened to hit him if he did not admit to the commission of the crime. As to Apolonio Medina, he heard from the police that he was also detained but maintained that he (Ordoo) did not know Apolonio. For his part, Apolonio Medina testified that on 5 August 1994 while he was pasturing his carabaos at Barangay Guesset, in Santol, La Union, the police came and invited him for questioning. They asked him where he was on 2 August 1994 and he replied that he was carrying bananas for his aunt Resurreccion. The interrogation lasted for about an hour with neither a lawyer assisting him nor a relative being present, after which he was placed in jail. Later, he was brought out and taken to a hut near the headquarters where he was boxed, kicked and hit with a nightstick. He lost consciousness and recovered only after he was brought back to his cell. That same night he was returned to the hut outside the police headquarters where he was again boxed. On 8 August 1994, with his legs tied to the ceiling beam, he was hanged upside down. His breast was hit with the butt of a gun which was fired near his ear. A barrel of a gun was inserted into his mouth. He was threatened that he would be salvaged if he did not admit to killing the victim. He was forced to sign a statement but could not recall its date of execution. He was brought to the office of the PAO lawyer twice but he did not sign the document. The investigator warned him that if he did not sign he would be buried in the pit which he himself dug. On his third visit to the office of the PAO lawyer he signed the document. He could not remember having gone to the

office of the MTC Judge of Balaoan; La Union. He was interviewed by a radio announcer and was instructed by the investigator to narrate those that were in his statement. He admitted he knew Pacito Ordoo. He showed his bruises to his mother when the latter visited him in jail, prompting the latter to request medical treatment for her son but the request was denied. On 11 December 1997 the trial court adjudged accused Pacito Ordoo and Apolonio Medina guilty of the crime of rape with homicide attended with conspiracy, and imposed upon each of them two (2) death penalties on the basis of their extrajudicial confessions. The accused are now before us assailing their conviction on the ground that constitutional infirmities attended the execution of their extrajudicial confessions, i.e., mainly the lack of counsel to assist them during custodial investigation thereby making their confessions inadmissible in evidence. Under the Constitution[3] and the rules laid down pursuant to law[4] and jurisprudence,[5] a confession to be admissible in evidence must satisfy four (4) fundamental requirements: (a) the confession must be voluntary; (b) the confession must be made with the assistance of competent and independent counsel; (c) the confession must be express; and, (d) the confession must be in writing.[6] Among all these requirements none is accorded the greatest respect than an accused's right to counsel to adequately protect him in his ignorance and shield him from the otherwise condemning nature of a custodial investigation. The person being interrogated must be assisted by counsel to avoid the pernicious practice of extorting false or coerced admissions or confessions from the lips of the person undergoing interrogation for the commission of the offense.[7]Hence, if there is no

counsel at the start of the custodial investigation any statement elicited from the accused is inadmissible in evidence against him. This exclusionary rule is premised on the presumption that the defendant is thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures where the potentiality for compulsion, physical and psychological, is forcefully apparent.[8] In the instant case, custodial investigation began when the accused Ordoo and Medina voluntarily went to the Santol Police Station to confess and the investigating officer started asking questions to elicit information and/or confession from them. At such point, the right of the accused to counsel automatically attached to them. Concededly, after informing the accused of their rights the police sought to provide them with counsel. However, none could be furnished them due to the non-availability of practicing lawyers in Santol, La Union, and the remoteness of the town to the next adjoining town of Balaoan, La Union, where practicing lawyers could be found. At that stage, the police should have already desisted from continuing with the interrogation but they persisted and gained the consent of the accused to proceed with the investigation. To the credit of the police, they requested the presence of the Parish Priest and the Municipal Mayor of Santol as well as the relatives of the accused to obviate the possibility of coercion, and to witness the voluntary execution by the accused of their statements before the police. Nonetheless, this did not cure in any way the absence of a lawyer during the investigation. In providing that during the taking of an extrajudicial confession the accused's parents, older brothers and sisters, his spouse, the municipal mayor, municipal judge, district school supervisor, or priest or minister of the gospel as chosen by the accused may be present,

RA 7438 does not propose that they appear in the alternative or as a substitute for counsel without any condition or clause. It is explicitly stated therein that before the above-mentioned persons can appear two (2) conditions must be met: (a) counsel of the accused must be absent, and, (b) a valid waiver must be executed. RA 7438 does not therefore unconditionally and unreservedly eliminate the necessity of counsel but underscores its importance by requiring that a substitution of counsel with the above-mentioned persons be made with caution and with the essential safeguards. Hence, in the absence of such valid waiver, the Parish Priest of Santol, the Municipal Mayor, the relatives of the accused, the Chief of Police and other police officers of the municipality could not stand in lieu of counsel's presence. The apparent consent of the two (2) accused in continuing with the investigation was of no moment as a waiver to be effective must be made in writing and with the assistance of counsel. [9] Consequently, any admission obtained from the two (2) accused emanating from such uncounselled interrogation would be inadmissible in evidence in any proceeding. Securing the assistance of the PAO lawyer five (5) to eight (8) days later does not remedy this omission either. Although there was a showing that the PAO lawyer made a thorough explanation of the rights of the accused, enlightened them on the possible repercussions of their admissions, and even gave them time to deliberate upon them, this aid and valuable advice given by counsel still came several days too late. It could have no palliative effect. It could not cure the absence of counsel during the custodial investigation when the extrajudicial statements were being taken.[10]

The second affixation of the signatures/ thumbmarks of the accused on their confessions a few days after their closed-door meeting with the PAO lawyer, in the presence and with the signing of the MTC judge, the PAO lawyer and other witnesses, likewise did not make their admissions an informed one. Admissions obtained during custodial investigation without the benefit of counsel although reduced into writing and later signed in the presence of counsel are still flawed under the Constitution.[11] If the lawyer's role is diminished to being that of a mere witness to the signing of a prepared document albeit an indication therein that there was compliance with the constitutional rights of the accused, the requisite standards guaranteed by Art. III, Sec. 12, par. (1), are not met. The standards utilized by police authorities to assure the constitutional rights of the accused in the instant case therefore fell short of the standards demanded by the Constitution and the law. It should further be recalled that the accused were not effectively informed of their constitutional rights when they were arrested, so that when they allegedly admitted authorship of the crime after questioning, their admissions were obtained in violation of their constitutional rights against self-incrimination under Sec. 20, Art. IV, of the Bill of Rights. As testified to, the police informed the accused of their rights to remain silent and to counsel in a dialect understood by them, but despite the accused's apparent showing of comprehension, it is doubtful if they were able to grasp the significance of the information being conveyed. Pertinent portions of the extrajudicial confessions of Pacito Ordoo and Apolonio Medina, translated into English, read PRELIMINARY -

Mr. Pacito Ordoo, I am informing you that you are being investigated of an offense but before we continue, I tell you that you have the right to remain silent under the new Constitution of the Philippines. And you are also herein reminded that all statements you give may be used for or against you in any Philippine court as evidence and it is herein likewise reminded that you have the right to secure the services of a lawyer of your own choice to represent you in this investigation, do you understand all these? A:....Yes, sir because all that I will state will only be the truth. Q:....Do you want that we will continue with this investigation after having been appraised of all your rights? A:....Yes, sir. Q:....And, do you want that we continue wit the investigation even without a lawyer of your own choice to represent you? A:....Yes, sir. Q:....Are you now prepared to give your voluntary statement consisting only the truth, without any lies whatsoever? A:....Yes, sir x x x x

PRELIMINARY Mr. Apolonio Medina, I inform you that you are being investigated of an offense but before we proceed with this investigation, I am informing you that you have the right to remain silent to all questions asked of you, according to the new Philippine Constitution. And you are likewise reminded that all statements you give may be used for or against you in any Philippine court and you have a right to have a lawyer of your own choice to represent you in this investigation, do you understand this? ANSWER - Yes, sir. Q:....After having known all your rights, do you want that we continue with the investigation? A:....Yes, sir. Q:....Do you want that we continue with this investigation even without a lawyer to represent you? A:....Yes, sir because all that I will state are the truth. Q:....Are you now prepared to give your voluntary statement consisting only the truth, nothing but the truth? A....Yes, sir.

The advice proffered by the investigating officer to Ordoo starkly resembles that given to Medina, thus leading us to conclude that the advice was given perfunctorily and belonged to the stereotyped class - a long question by the investigator informing the appellant of his right followed by a monosyllabic answer - which this Court has condemned for being unsatisfactory.[12] The desired role of counsel in the process of custodial investigation is rendered meaningless if the lawyer gives an advice in a cursory manner as opposed to a meaningful advocacy of the rights of the person undergoing questioning. If advice is given casually and tritely as to be useless, understanding on the part of the accused is sacrificed and the unconstrained giving up of a right becomes impaired. To be informed of the right to remain silent and to counsel contemplates "the transmission of meaningful information rather than just the ceremonial and perfunctory recitation of an abstract constitutional principle." It is not enough for the interrogator to merely enumerate to the person under investigation his rights as provided in Sec. 12, Art. III, of the Constitution; the interrogator must also explain the effect of such provision in practical terms, e.g., what the person under interrogation may or may not do, and in a language the subject fairly understands.[13] With the extrajudicial confession of the accused rendered inadmissible in evidence, we are left with the interview taken by DZNL radio announcer Roland Almoite as evidence. The taped interview was offered to form part of the testimony of witness Roland Almoite to whom the admissions were made and to prove through electronic device the voluntary admissions by the two (2) accused that they raped and killed Shirley Victore. The defense objected to its acceptance on the

ground that its integrity had not been preserved as the tape could easily have been spliced and tampered with.[14] However, as Roland Almoite testified, it was the original copy of the taped interview; it was not altered; the voices therein were the voices of the two (2) accused; and, the defense never submitted evidence to prove otherwise. Under the circumstances, we are inclined, as was the lower court, to admit the authenticity of the taped interview. A review of the contents of the tape as included in Roland Almoite's testimony reveals that the interview was conducted free from any influence or intimidation from police officers and was done willingly by the accused. Despite allegations to the contrary, no police authority ordered or forced the accused to talk to the radio announcer. While it may be expected that police officers were around since the interview was held in the police station, there was no showing that they were within hearing distance nor within the vicinity where the interview was being conducted. At most, the participation of the police authorities was only to allow Roland Almoite to conduct an interview. The taped interview likewise revealed that the accused voluntarily admitted to the rape-slay and even expressed remorse for having perpetrated the crime. We have held that statements spontaneously made by a suspect to news reporters on a televised interview are deemed voluntary and are admissible in evidence. [15] By analogy, statements made by herein accused to a radio announcer should likewise be held admissible. The interview was not in the nature of an investigation as the response of the accused was made in answer to questions asked by the radio reporter, not by the police or any other investigating officer. When the accused talked to the radio announcer, they did not talk to him as a law enforcement officer, as in fact he was not,

hence their uncounselled confession to him did not violate their constitutional rights. Sections 12, pars. (1) and (3), Art. III, of the Constitution do not cover the verbal confessions of the two (2) accused to the radio announcer. What the Constitution bars is the compulsory disclosure of incriminating facts or confessions. The rights enumerated under Sec. 12, Art. III, are guaranteed to preclude the slightest use of coercion by the state as would lead the accused to admit something false, not to prevent him from freely and voluntarily telling the truth.[16] The Bill of Rights does not concern itself with the relation between a private individual and another individual.[17] It governs the relationship between the individual and the State. The prohibitions therein are primarily addressed to the State and its agents. They confirm that certain rights of the individual exist without need of any governmental grant, rights that may not be taken away by government, rights that government has the duty to protect.[18] Governmental power is not unlimited and the Bill of Rights lays down these limitations to protect the individual against aggression and unwarranted interference by any department of government and its agencies. The admissions of the accused before the radio announcer and duly tape-recorded are further bolstered and substantiated by the findings of the NBI Medico-Legal Officer as reflected in the Autopsy Report/Post Mortem Findings. The narration of the accused Apolonio Medina that Asing boxed the victim, who was struggling as she was being raped,[19] was proved by the Autopsy Report stating that the victim suffered contusions on the leg, right, lateral aspect, middle third, etc.;[20] that accused Pacito Ordoo boxed

the face of the victim to make her weak[21] was proved by the testimony of the NBI Medico-Legal Officer that there was blackening on the face of the victim due to hematoma caused by violence or boxing on her face; [22] and, that accused Pacito Ordoo hanged the victim on a tree by tying a vine around her neck,[23] was proved by the finding of a depressed mark involving the anterior and lateral portions of the neck.[24] As to the assertion of the accused that they were tortured and subjected to inhuman treatment, we find such allegations baseless. The accused were given several opportunities to decry the maltreatment they allegedly suffered in the hands of the police but at no time did they complain about it. First, they could have told the radio announcer outright of the abuses they were subjected to before signing their confessions. Second, when they were brought before the PAO lawyer they likewise did not make any such claims but instead chose to ponder over the lawyer's advice and deferred the signing of their confessions. Lastly, they had the chance to tell the MTC judge about the fatal defect of their confessions, if there was any, when the latter asked them whether they voluntarily signed the same and whether coercion was used in extracting their confessions; however, they answered in the negative. The accused cannot therefore on a later date make assertions that they were maltreated when at no time - during their detention and when they were in the presence of persons who could have helped them - did they make such complaints. The doctor who physically examined them further disproved their assertions when she testified thus FISCAL TECAN:

Q:....Now, you said that you talked with the prisoners, Pacito Ordoo and Apolonio Medina, what did you actually tell them? A:....I said, "What do you feel on your body?" and I also said, "What part of your body are (sic) painful?" Q:....What did they answer? A:....They did not answer me, sir. Q:....More or less, how many questions did you ask? A:....Only that, sir. Q:....After you have observed the prisoners, did you notice any injury? A:....None, sir x x x x Q:....x x x x You noticed any injury on their bodies? A:....None, sir, that is why I looked to see what was really painful.[25] Considering that the doctor was a witness for the defense, it was surprising that she never mentioned about any maltreatment. She saw not a single scratch on the bodies of the accused. She even inquired into their physical well-being but they did not tell her of any pain or injury. They could have easily asked the doctor for immediate treatment if indeed they were physically harmed, but they did not. This puts their claim of maltreatment into serious doubt. With this, the testimony of the mother of the accused Apolonio Medina alleging that the police refused treatment for her son despite his critical condition becomes a

fabrication, a mere figment of the imagination. As found by the lower court, her tale of buying an antibiotic for her son, all on her own, without the prescription of a doctor, is hard to believe since she is already an elderly woman, seventy-three (73) years of age, unschooled and illiterate.[26] To further exculpate themselves, the accused invoked alibi. Ordoo testified that at the time of the incident he was at work in the place of Barangay Captain Valentin Oriente,[27]while Medina claimed that he went to carry bananas for a certain aunt Resurreccion.[28] However, such allegations deserve no credit as alibi becomes worthless when it is established mainly by the accused themselves.[29] The defense of alibi is always considered with suspicion and received with caution, not only because it is inherently weak and unreliable, but also because it can easily be fabricated.[30] Quite interestingly, Bgy. Capt. Valentin Oriente was presented as a witness for the prosecution, not for the defense, while "aunt Resurreccion" was not presented at all. Bgy. Capt. Oriente testified that Pacito Ordoo did not work with him on 2 August 1994; on the contrary, he saw him on the bridge at Sitio Guesset.[31] Other than their lame assertions that they were with the above-mentioned persons, the accused failed to substantiate their defense and to give details on what transpired that fateful day, especially since they were in the same town where the crime happened. For alibi to Prosper, it must be convincing, enough to preclude any doubt about the physical impossibility of the presence of the accused at the locus criminis or its immediate vicinity at the time of the incident.[32] Since the accused failed to convince the Court otherwise, their defense must fall.

The lack of prior design or plan to rape and kill the victim prior to the commission of the crime does not negate conspiracy. For conspiracy to exist, proof of an actual planning of the perpetration of the crime is not a condition precedent. It is sufficient that at the time of the commission of the offense the accused had the same purpose and were united in its execution. From the foregoing, it is evident that the accused helped each other in carrying out their beastly acts. The taped interview as played in open court clearly revealed thus (STATEMENT OF ACCUSED APOLONIO MEDINA) INTERPRETER: When I was walking there already about to be near him, he was already holding the woman and said, come and help me because I was (sic) not feeling well. Well, I was shocked of what I saw, sir. But later on, as usual I regained my composure and so I finally went to help him, sir. FISCAL TECAN: We will continue, Your Honor. INTERPRETER: And then we laid her down among the bushes then Asing boxed her because she was struggling, Your Honor. And Asing did what he wanted, sir. And then he asked me to take my turn and then I went outside to look and see if there are (sic) people and then Asing went to

get a vine, sir. And when I arrived at their place, he was already tieing (sic). After that, we left for home, sir.[33] xxx (STATEMENT OF ACCUSED PACITO ORDOO) Q:....But Apolonio Medina was already there as your companion? A:....He was there already, sir. He was the one who held her legs, sir. Q:....Who was the first one to rape or use her? A:....Me, sir. And after that, Apolonio Medina, sir. Q:....And after you were through, what did you do, was she still conscious? A:....She was practically unconscious, sir. Q:....What did you do then? A:....We tied her neck and hanged her on a tree, sir.[34] The modifying circumstance of conspiracy being present, each of the accused shall be liable for the other's acts as well. Article 335 of the Revised Penal Code provides that "when by reason or on the occasion of the rape, a homicide is committed, the penalty shall be death." In 1971, in People v. Jose[35] this Court convicted the four (4) accused with forcible abduction with rape, and three (3) counts of simple rape, and imposed upon

each of the accused four (4) death penalties in view of the existence of conspiracy. In 1981, in People v. Yutila[36] this Court affirmed the judgment of the court a quo declaring each of the three (3) accused guilty of the special complex crime of rape with homicide and sentenced each of them to suffer a single penalty of death. However, Justice Barredo in his separate opinion interposed that in accordance with the doctrine laid down in the Jayme Jose case, three (3) death penalties should have been imposed on each of the accused. In People v. Vizcarra[37] where the four (4) accused were charged with rape with homicide, the Court held that only one of them should be held liable for the crime of rape with homicide and all the rest for simple rape. But since four (4) successive offenses were charged and proved, each of the accused was imposed four (4) death sentences for four (4) separate and distinct crimes of rape. The existence of conspiracy among them, the overwhelming evidence as to the nature and the number of crimes committed, as well as the attendance of the aggravating circumstances, fully justified the imposition of four (4) death penalties. In 1988, in People v. Dio[38] where the three (3) accused took turns in ravishing the victim and thereafter killed her, the Court declared each of them guilty of three (3) crimes of rape with homicide and sentenced each of them to three (3) penalties of reclusion perpetua. The penalty in fact should have been death but with its proscription in the 1987 Constitution the penalty imposed was reduced to reclusion perpetua. In 1991, in People v. Flores[39] a registered nurse was successively raped by four (4) men and then killed. The

trial court convicted each of them with the special complex,crime of multiple rape with homicide on four (4) counts and as a consequence thereof sentenced each of them to four (4) death penalties. This Court affirmed the decision of the lower court with the modification that the accused should instead suffer four (4) penalties of reclusion perpetua by reason of the constitutional proscription on the imposition of the death penalty. The four (4) death penalties for each of the appellants were explained to be ordained by the fact that conspiracy had been established beyond reasonable doubt. In 1996, in People v. Laray[40] this Court convicted two (2) of the accused charged therein with multiple rape and sentenced each of them to suffer two (2) counts of reclusion perpetua because of the existence of conspiracy. Accordingly, herein accused Pacito Ordoo and Apolonio Medina should be held liable for the special complex crime of rape with homicide on two (2) counts as defined and penalized in Art. 335 of the Revised Penal Code as amended by RA 7659. We have held that the indemnification of the victim shall be in the amount of P100,000.00 if the crime of rape is committed or effectively qualified by any of the circumstances under which the death penalty is authorized by the applicable amendatory laws.[41] In addition, this Court has likewise ruled that in crimes of rape the amount of P50,000.00 as moral damages must be awarded to the victim without need of proof nor even pleading the basis thereof.[42] Four (4) Justices of the Court however continue to maintain the unconstitutionality of RA 7659 insofar as it prescribes the death penalty; nevertheless, they submit

to the ruling of the majority to the effect that the law is constitutional and that the death penalty can be lawfully imposed in the case at bar. WHEREFORE, the 11 December 1997 Judgment rendered by the Regional Trial Court-Branch 34, Balaoan, La Union, is AFFIRMED with the MODIFICATION that the two (2) accused PACITO ORDONO y NEGRANZA alias ASING and APOLONIO MEDINA y NOSUELO alias POLING are held guilty beyond reasonable doubt of the special complex crime of rape with homicide on two (2) counts and are sentenced each to two (2) DEATH PENALTIES. Each of the accused is further ordered to indemnify the heirs of Shirley Victore in the amount of P200,000.00 as civil indemnity and P100,000.00 for moral damages for both counts of rape. Costs against both accused. In consonance with Sec. 25 of RA 7659 amending Art. 83 of the Revised Penal Code, upon finality of this Decision, let the records of this case be forthwith forwarded to the Office of the President for the possible exercise of his pardoning power. SO ORDERED. Davide, Jr., C.J., Bellosillo, Melo, Puno, vitug, Kapunan, Mendoza, Panganiban, Quisumbing, Purisima, Pardo, Buena, Gonzaga-Reyes, YnaresSantiago, and De Leon, Jr., JJ., concur. G.R. No. 129723 May 19, 1999 THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DANILO MORADA y TUMLOD, accused-appellant.

MENDOZA, J.:

This is an appeal from the decision, dated July 7, 1997, of the Regional Trial Court, Branch 90 of Dasmarias, Cavite, the dispositive portion of which reads: WHEREFORE, the Court finds the accused [Danilo Morada y Tumlod] GUILTY beyond reasonable doubt of the crime of Murder, committed with treachery and taking advantage of superior strength and hereby sentences him to suffer the penalty of DEATH and to pay FIFTY THOUSAND PESOS (P50,000.00) to the legal heirs of the deceased, Jonalyn Navidad, in consonance with our current case law and policy on death indemnity. No pronouncement with respect to the cost. SO ORDERED. 1 This case originated from the information filed against accused-appellant which alleged: That on April 13, 1995 in the Municipality of Imus, Province of Cavite, Philippines and within the jurisdiction of this Honorable Court, the above-named accused with intent to kill, with treachery, with evident premeditation and with the use of superior strength while armed with Bolo, did then and there, wilfully, unlawfully and feloniously attack, assault, and hack several times JONALYN NAVIDAD y MONZON inflicting multiple fatal wounds on the head of the said victim causing her instantaneous death to the damage and prejudice of the heirs. CONTRARY TO LAW. 2 The killing took place in Barangay Bukandala 5, Imus, Cavite. The victim, Jonalyn Navidad y Monzon, 17, was found, with several hack wounds on the head, near a creek. She was

taken to the hospital, but she died shortly after at 11:15 a.m. The cause of death was "Cardio-Respiratory Arrest, Sec. to Multiple Hacking wounds." 3 Five witnesses were presented by the prosecution. The first witness was SPO3 Arsenio Gomez, 44 years of age and a member of the Philippine National Police at Imus, Cavite. He testified that, on April 13, 1995, while he was on duty, he received a telephone call that a certain Jonalyn Navidad had been hacked and was in serious condition at Bukandala 5. He said he proceeded to the scene of the crime but, when he reached the place, the victim had already been taken to the hospital. According to him, he and Edgardo Manimbao, the barangay captain of Bukandala, found a pair of slippers (Exhs. B and B-2) with thumbtacks (Exhs. B-1 and B3) embedded in the insteps. One of the bystanders, Alejandro de la Cruz, identified the slippers as those of accusedappellant. SPO3 Gomez and Barangay Captain Manimbao, therefore, proceeded to the nipa hut of accused-appellant. SPO3 Gomez claimed they found a stained T-shirt hanging from a tree more or less a meter away from the nipa hut. SPO3 Gomez said he took the T-shirt as he suspected the red stain on it to be human blood. Also a meter away from the side of the nipa hut he recovered a bolo with a stain on it. Present were accused-appellant, his wife, and his brother. SPO3 Gomez said accused-appellant's brother told him the slippers belonged to accused-appellant. SPO3 Gomez said that he asked accused-appellant whether he knew anything about the crime, but the latter did not answer and just kept quiet. He then "invited" accused-appellant to the police station for questioning. During oral interrogation, SPO3 Gomez said, accused-appellant admitted that he had hacked Jonalyn Navidad but they did not take down accused-appellant's confession because there was no available lawyer to assist accused-appellant. According to SPO3 Gomez, the T-shirt and bolo were sent to the National Bureau of Investigation (NBI) for testing, while the slippers were turned over to the Regional

Trial Court. The NBI subsequently reported that the shirt and bolo both tested positive for "human blood showing reactions to Group 'O.'"(Exh. E) 4 SPO3 Gomez and the barangay captain, Edgardo Manimbao, signed a "Magkasamang Salaysay" (Exh. C) 5 on April 13, 1995. 6 On July 3, 1996, SPO3 Gomez was recalled to the witness stand. He was shown a bolo (Exh. F) and a T-shirt (Exh. G). He identified them as the ones he recovered near accusedappellant's house. He claimed that he took the items in the presence of the barangay captain. 7 On cross-examination, SPO3 Gomez admitted that he took the shirt and the bolo from accused-appellant without any search warrant. 8 The next witness was Edgardo Manimbao, barangay captain of Bukandala, Imus. He testified that on April 13, 1995, he received a report of a woman having been hacked. Accompanied by the barangay secretary and some members of the barangay council, he proceeded to the scene of the crime, but when he reached the place the victim was no longer there. What he only saw were "traces that a woman fell" and a pair of slippers near an acacia tree. Manimbao said that he accompanied SPO3 Gomez to the house of accusedappellant, which was 120 meters away from the scene of the crime. They found a bloodstained bolo and T-shirt a meter away from accused-appellant's house. The witness said that accused-appellant's wife identified the T-shirt as her husband's. SPO3 Gomez and Manimbao then took accusedappellant, his wife, and his brother to the police station. Afterwards, Manimbao said, he went to the hospital to see the victim and saw that she had suffered several hack wounds on the head. Manimbao said he returned to the police station where he was told by SPO3 Gomez that accused-appellant, who was in jail, wanted to talk to him. Accompanied by a certain Cenon Santarin, Manimbao then went to see accusedappellant. Manimbao claimed accused-appellant admitted to him that the pair of slippers found at the scene of the crime was his and that he was the one who had killed the victim.

After being told thus, Manimbao said he asked the prison guard if accused-appellant had told him why he had killed the victim and he was told it was because Jonalyn Navidad was so angry at accused-appellant she spat on his face. 9 The third witness was Christopher Saliva, 19 years of age, a delivery boy and a resident of Bukandala. He testified that on April 13, 1995, between 10 and 11 in the morning, while he was on his way home after feeding the fighting cocks at his farm, he saw accused-appellant, a childhood friend, going away from the scene of the crime carrying a bolo, and that when accused-appellant saw him the latter acted as if he had just seen a ghost and turned pale. He described accusedappellant as wearing a polo shirt with blue and yellow stripes. He did not notice whether the latter was wearing shoes or slippers. He also said that it was only at about 11 in the morning that he learned about the hacking incident from his cousin Allan Saquilayan. He later told the victim's father that he had seen accused-appellant coming from the scene of the crime, and, the next day, he went to the police station to give a statement (Exh. D). 10 (He must have told the victim's father about seeing accused-appellant on April 13, 1995 near the scene of the crime on April 15 because he gave his statement to the police on April 16, 1995.) 11 On cross-examination, Saliva testified that he knew accusedappellant and the victim as both were his childhood friends. He said that he and accused-appellant had no misunderstanding. 12 Eric Navidad, the 13-year old brother of the victim, testified that he was the one who found his sister between 10 and 11 on April 13, 1995 near a creek. He ran and fetched his father. Eric said that he saw a pair of yellow slippers near the body. He testified that it was the one that accused-appellant wore while playing basketball. He recognized the slippers because they had thumbtacks in the insteps which he noticed everytime he passed by accused-appellant's house and the latter took

them off and left them at the foot of the stairs. Eric also said that although accused-appellant was married, he courted Jonalyn. 13 On cross-examination, Eric testified that he was asked questions by the police. Although the unvestigation was reduced to writing, Eric said that he was not placed under oath or made to sign any report or statement. 14 The last witness for the prosecution was Alejandro de la Cruz, a 34-year old driver and resident of Bukandala 5. He testified that, on April 13, 1995, at about 11 in the morning, he was roused from sleep by his wife and told that Jonalyn Navidad had been seriously wounded and taken to the hospital. With only his briefs on and a towel wrapped around his hips, he went to the scene of the crime where he saw a pair of yellow slippers near an acacia tree. One slipper was upright, while the other was overturned. De la Cruz said he knew that accused-appellant owned the slippers because of the thumbtacks on them. He claimed that during the wake of his father in January 1995, he hid the slippers as he and his friends played a game while accused-appellant was asleep. 15 De la Cruz gave a sworn statement (Exh. E) 16 in which he identified the slippers as those of accused-appellant. On cross-examination, De la Cruz said he was neither a friend of accused-appellant nor a relative of the victim. 17 The defense thereafter presented its witnesses, accusedappellant and Rosita Cabaero. Accused-appellant claimed 18 that on April 13, 1995, between 10 and 11 in the morning, he was in his house cooking. He and his wife had a visitor from Makati, Rosita Cabanero. Earlier that day, between nine and 10, accused-appellant said the victim's mother, Jocelyn Navidad, came for help because her daughter Jonalyn had been found slumped in the creek. Hence, accused-appellant and his elder brother, Joel Avenda, 19 went to the creek. They saw Jonalyn being held by

her father Nicasio Navidad. She was placed in a jeepney and taken to the hospital. Accused-appellant said he and his brother then went home, but, 30 minutes later, a group of policemen led by SPO3 Arsenio Gomez, went to his house and arrested him. He complained that the policemen took his bolo and his T-shirt without any search warrant or warrant of arrest. He claimed that he was taken to the municipal building where he was beaten up to make him admit to the killing of Jonalyn Navidad, but he admitted no such thing. As to the T-shirt, accused-appellant said it had no stain when the police took it. He denied that Christopher Saliva saw him carrying a bolo and wearing a bloodstained shirt, saying, "[t]here's no truth to that allegation, sir, because at that time I was already at home." Accused-appellant also denied attending the wake of the father of Alejandro de la Cruz "[b]ecause at that time . . . my wife is pregnant and I have to stay at home." As for the testimony of the victim's brother, Eric Navidad, that he knew that the slippers belonged to accused-appellant because he used to see the latter playing basketball while wearing the same, accused-appellant claimed that he does not know how to play basketball. Accused-appellant said that he saw the slippers for the first time when they were shown to him in court. He said that he does not place thumbtacks on his slippers because the same would cause him injuries. Accused-appellant testified that the family of the victim owned the land which he had been cultivating for the last 12 years. On cross-examination, 20 accused-appellant testified he had written two letters, dated December 27, 1995 and February 1, 1996, to the court in which he questioned the legality of his arrest and invoked his right to a speedy trial. He said that he had complained to the policemen at the municipal jail that his arrest was illegal, but they would not listen to him; and that while he knew it was his right to have a preliminary

investigation, he had no way of asking for reinvestigation because he knew no one whom he could approach for help. Accused-appellant admitted being close to the victim, but he denied that he had any special feelings for her. Accused-appellant said that his house faces the victim's house and that the house next to his house is his in-laws' house. Other than those three houses, accused-appellant said that there are no other houses in the vicinity. Accused-appellant said that the reason why he was implicated in the killing of Jonalyn was because the latter's family wanted to eject him from the land on which his house was built so that the land could be sold. He said that already his house as well as that of his parents had been removed from the property. Accused-appellant's alibi was corroborated by Rosita Cabanero. She testified that accused-appellant was a cousin of her neighbor in Makati, Geraldine Defenso. She claimed that in the morning of April 13, 1995 she was at accusedappellant's house because the latter's cousin had asked her to get from accused-appellant's mother a dog that will be slaughtered for the birthday of accused-appellant's cousin. At around 10 in the morning, Rosita Cabanero said a woman (apparently Jonalyn's mother) came to accused-appellant's house asking for help. Accused-appellant woke up his brother and then left the house and returned after 30 minutes. Half an hour later, policemen arrived together with some barangay officers and took accused-appellant with them. 21 On cross-examination, Rosita testified that accusedappellant's brother Joel did not leave the house. She said that the dog she came to get was killed and placed in a sack by Joel at around nine in the morning. 22 On July 7, 1997, the Regional Trial Court rendered its decision finding accused-appellant guilty of the murder of Jonalyn Navidad. It held that "[t]he chain of circumstances occurring

before, during, and after the hacking of Jonalyn Navidad, linked together, leads to but one indubitable conclusion: that she was murdered by the herein accused, Danilo Morada." It imposed on him the penalty of death after finding that the crime had been committed with treachery, evident premeditation, abuse of superior strength, and cruelty. Hence, this appeal. Accused-appellant contends that THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSEDAPPELLANT OF MURDER AND SENTENCING HIM TO SUFFER THE PENALTY OF DEATH BASED ON PURELY CIRCUMSTANTIAL EVIDENCE. 23 In convicting accused-appellant, the trial court relied on the following circumstances as constituting an unbroken chain leading to the conclusion that accused-appellant was the author of the crime: 1. In the scene of the crime the accused's pair of slippers with thumbtacks on them was found. This was positively identified as belonging to the accused by Eric Navidad, a younger brother of the victim and the first person who discovered the victim's body. Alejandro Dela Cruz, likewise, identified the same subject slippers having seen them during a hide-andseek game in the wake of his dead father while Joel Avenda, accused's half brother, also identified the accused as the owner of the same pair of slippers. 2. Accused was seen by Christopher Saliva coming from the scene of the crime carrying with him a bolo and reacted as if he saw a ghost and turned pale when he saw Saliva.

Accused was then wearing a polo shirt with striped design of blue and yellow which matched the blood-stained shirt recovered from a tree beside the nipa house of the accused. 3. From the premises of the accused were recovered a blood-stained yellow and gray striped T-shirt hanging on a tree and one (1) blood-stained bolo about a meter away from the side of the nipa house of the accused. Further, Morada's wife identified the blood-stained Tshirt as belonging to her husband DaniloMorada. 4. The NBI Forensic Chemistry Division laboratory examinations of the blood-stained yellow and gray striped T-shirt and bolo recovered at Danilo Morada's place both gave positive results for human blood. 5. At the police headquarters, accused admitted before barangay captain Edgardo Manimbao that the pair of slippers was actually his and that he was really the one who hacked Jonalyn Navidad because Jonalyn Navidad, according to the jail guard when asked by Manimbao, was very angry at him (Morada) up to the point that she spat on his face. 6. Eric Navidad revealed that Danilo Morada had intimated to him that he (Morada) had an affection for his elder sister when she was still alive even though Morada was a married man. 24 Rule 133, 4 of the Revised Rules on Evidence provides:

Sec. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for conviction if: (a) There is more than one circumstance; (b) The facts from which the inference are derived are proven; and (c) The combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. The question in this case is whether the circumstances from which the trial court drew its conclusion have been duly proven by the prosecution and, if so, whether, taken together, they support a conviction beyond reasonable doubt. If some of the circumstances have not been duly established, the further question is whether the remaining ones are nevertheless sufficient to produce such conviction beyond reasonable doubt. First is accused-appellant's alleged confession to Barangay Captain Edgardo Manimbao. Manimbao testified that, after coming from the hospital to see the victim, he returned to the police station and there was told by SPO3 Gomez that accused-appellant wanted to talk to him. Accordingly, he said, he went to see accused-appellant who was then in jail. Accused-appellant allegedly admitted that he had killed the victim. Apparently, the purpose is to show that accusedappellant spontaneously made the confession, that is, not in the course of interrogation by the police. In fact, Manimbao claimed accused-appellant sought him out for a meeting. 25 In People v. Andan, 26 this Court held that the constitutional guarantees during custodial investigation do not apply to spontaneous statements not elicited through questioning by the authorities and given during ordinary conversation or during media interviews, whereby the suspect orally admits the

commission of the crime. Our ruling in that case does not, however, authorize the police to obtain confessions they cannot otherwise obtain through media reporters who are acting for the police. The holding in Andan is qualified by the following: Clearly, appellant's confessions to the news reporters were given free from any undue influence from the police authorities. The news reporters acted as news reporters when they reported when they interviewed appellant. They were not acting under the direction and control of the police. They were to check appellant's confession to the mayor. They did not force appellant to grant them an interview and reenact the commission of the crime. In fact, they asked his permission before interviewing him . . . . 27 In the case at bar, it is doubtful whether, as Manimbao claimed, accused-appellant's confession was given divorced from the police interrogation. In his testimony, SPO3 Gomez stated: We conducted [oral] interrogation to the suspect. During our [oral] interrogation with the help of Bgy. Captain [Edgardo Manimbao], the suspect admitted to us that he's the one who hacked Jonalyn Navidad. Although we do not reduced [sic] it into writing because of the absen[ce] of [a] lawyer. 28 It would thus appear that Manimbao's conversation with accused-appellant was part of the then ongoing police investigation. In fact, he said it as SPO3 Gomez who told him about the alleged desire of accused-appellant to see him (Manimbao). Since the confession was admittedly given without the safeguards in Art. III, 12 29 and the additional

ones provided in R.A. No. 7438, particularly the requirement that the confession be in writing and duly signed by the suspect in the presence of counsel, we hold that accusedappellant's confession is inadmissible, and it was error for the trial court to use it in convicting accused-appellant. Moreover, Edgardo Manimbao's testimony as to the circumstances surrounding the confession allegedly given to him is in itself improbable. First of all, Manimbao did not give a plausible reason why accused-appellant would want to talk to him. He testified that accused-appellant want[ed] to get out of jail. 30 If that were the case, it was very unlikely that accused-appellant would admit his guilt. Another reason which makes Edgardo Manimbao's account unlikely is his claim that after accused-appellant had confessed to the crime, Manimbao asked the prison guard if accused-appellant had told him (the prison guard) why he killed the victim. 31 Manimbao himself could have asked accused-appellant the question if accused-appellant had really admitted to him the crime. Indeed, if one were to believe the prosecution evidence, it would seem that accused-appellant confessed to the crime to almost everyone: to SPO3 Gomez, to Barangay Captain Manimbao, and to the prison guard. How then could accused-appellant hope to be freed? Manimbao's claim is not only patently improbable; it is even hearsay as far as the alleged information given to him by the prison guard is concerned. As for the T-shirt and the bolo which SPO3 Gomez and Barangay Captain Edgardo Manimbao said they found near accused-appellant's nipa hut with bloodstains on them, the evidence is doubtful. Accused-appellant admits that the shirt and the bolo are his, but he denies that when they were taken from him on April 13, 1995 they were bloodstained. Indeed, in his testimony in court, Christopher Saliva did not say he saw

bloodstains on the shirt which accused-appellant was wearing and the bolo he was carrying. It is improbable that these incriminating pieces of evidence would be left in the premises of accused-appellant's house within public view: the T-shirt, bloodstained, hanging from a tree, and the bolo, also bloodstained, in the yard. The articles in question could only have been left outside the house because, as accusedappellant contends, they had no bloodstains. Moreover, even if the shirt and the bolo were bloodstained when found by SPO3 Gomez and Barangay Captain Manimbao, it has not been shown that the blood matched the blood type of the victim. As held in People v. Padilla,32 unless shown that bloodstains on alleged instruments of crime match the blood type of the victim the same cannot sustain conviction of the accused. The question now is whether, without accused-appellant's alleged confession and the bloodstains on the T-shirt and bolo which were admittedly taken from accused-appellant, there is enough circumstantial evidence to convict him of the killing of Jonalyn Navidad. The remaining evidence consists of circumstances which, according to the trial court, were duly proven, to wit: (1) that accused-appellant was seen near the scene of the crime between 10 and 11 in the morning of the day in question wearing the T-shirt and carrying the bolo which the prosecution presented in evidence and (2) that a pair of slippers was found near the place where the body of the victim was retrieved and the slippers belonged to accused-appellant. The claim that accused-appellant was near the scene of the crime between 10 and 11 in the morning comes from the testimony of Christopher Saliva. His testimony would be uncorroborated if he did not describe what he allegedly saw accused-appellant wearing and the bolo the latter was supposedly carrying at the time. This part of Saliva's testimony is critical to his claim that he saw accused-appellant because it coincides with the description of the

T-shirt 33 and the bolo taken by SPO3 Gomez and Barangay Captain Manimbao from accused-appellant. It appears, however, that Saliva was simply made to say that accusedappellant was wearing the T-shirt and carrying the bolo in question after these articles had been taken from accusedappellant not so much to corroborate Gomez and Manimbao's claim (because after all accused-appellant admits that the articles belonged to him) but rather to give verisimilitude to Saliva's own claim that he had seen accused-appellant near the scene of the crime. Note that Saliva gave his statement to the police only on April 16, 1995, after Gomez and Manimbao had executed a joint statement that they had taken a T-shirt and a bolo, both allegedly bloodstained, from accusedappellant. Saliva said that around 11 in the morning of April 13, 1995 (which means shortly after he had allegedly seen accused-appellant near the scene of the crime), he was told by his cousin, Allan Saquilayan, that Jonalyn Navidad had been killed. Yet, judging by the delay in giving his sworn statement to the police, it appears that it did not immediately occur to him that accused-appellant might have something to do with the killing. This is strange since according to this witness, accused-appellant had a bolo which was bloodstained and turned pale as though surprised while committing something wrong. There is, therefore, doubt whether Christopher Saliva really saw accused-appellant near the scene of the crime at about the time the crime was committed. It would thus appear that Saliva did not mention in hos sworn statement (Exh. D) that when-accused appellant saw him on April 13, 1995 the latter turned pale and appeared surprised because it is not true Saliva saw accused-appellant, in the same way that Saliva did not mention in his testimony in court that he saw accused-appellant with bloodstained shirt and bloodstained bolo because he really did not see accusedappellant on that day, much less the bloodstain on the shirt and the bolo.

The last piece of evidence mentioned by the trial court constituting a link in a chain of circumstances are the slippers are the slippers (Exhs. B and B-2) which SPO3 Gomez, Barangay Captain Manimbao, and an onlooker, Alejandro de la Cruz, said they found near the place where Jonalyn Navidad was found. These slippers were identified to be those of accused-appellant by Eric Navidad, younger brother of the victim, and Alejandro de la Cruz. Both witnesses said they recognized the slippers because of thumbtacks (Exhs. B-1 and B-3) placed in the middle of the insteps. Actually, the slippers are rubber sandals with Japanese-style straps designed for beachwalk. It is inconceivable why the owner should place thumbtacks in the insteps of his sandals. The thumbtacks could not have been used to hold the straps or fasten them to the sandals because the fact is that the straps had not given way. On the other hand, as accused-appellant pointed out, he would not place the thumbtacks there because they could injure him. Eric said he saw accused-appellant wearing these sandals while playing basketball and on the occasions he passed by accused-appellant's house. Accuse-appellant would take off his sandals and leave them at the foot of the stairs, and this was how Eric noticed the thumbtacks. Eric Navidad was interviewed at the police station in connection with the killing of his sister. Yet, it does not appear he ever told the police that he recognized the sandals because of the thumbtacks embedded in their insteps. He made this claim only on February 14, 1996 when he testified in court. On the other hand, Alejandro de la Cruz had an ingenious explanation why he recognized the slippers to be those of accused-appellant because of the thumbtacks embedded in their insteps. He said accused-appellant went to his (Alejandro de la Cruz's) father's wake in January 1995 and, while there, accused-appellant dozed off. In the course of a game, Alejandro de la Cruz said he and his companions hid accusedappellant's sandals. In doing so, he noticed the thumbtacks in

question. The story sounds artificial. Alejandro de la Cruz was 33 years old at the time. To drive away boredom would he have played "hide and seek" with other people attending the wake? And did he think it proper to do this (play "hide and seek") even when it was the wake for his own father? The attempt at ingeniousness can only create doubt in his story of how he allegedly came to see thumbtacks embedded in the insteps of accused-appellant's sandals that would later give him away as the author of the crime. Alejandro de la Cruz must be very observant to notice something in otherwise nondescript sandals. There may indeed be suspicion that accused-appellant is the author of the crime. But our legal culture demands proof beyond reasonable doubt to be established according to law before any person may be deprived of his life, liberty, or even property. We cannot render judgment on the basis of mere guesses, surmises, or suspicion. It is not sufficient for a conviction that the evidence establishes a strong suspicion or a probability of guilt. Before an accused can be convicted, the hypothesis of his guilt must flow naturally from the facts proved and must be consistent with all of them. WHEREFORE, the decision appealed from is REVERSED and accused-appellant Danilo Morada y Tumlod is ACQUITTED on the ground of reasonable doubt. The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant unless the latter is being lawfully held for another cause and to inform the Court accordingly within ten (10) days from notice.1wphi1.nt SO ORDERED. Davide, Jr., C.J., Romero, Bellosillo, Melo, Puno, Vitug, Kapunan, Panganiban, Quisumbing, Pardo, Gonzaga-Reyes and Ynares-Santiago, JJ., concur. Purisima and Buena, JJ., are on leave.

EOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. DAVID SALVATIERRA y EGUIA, accused-appellant. DECISION KAPUNAN, J.: For the fatal stabbing of Charlie Fernandez y De Guzman, the Regional Trial Court of Manila, Branch XLIX,[1] meted accused David Salvatierra y Eguia the penalty of reclusion perpetua and the payment of the amounts of P30,183.25 as actual damages and P50,000.00 as indemnity to the heirs of the victim, plus the cost of suit (Criminal Case No. 90-88985). At around 4:30 in the afternoon of August 17, 1990, Charlie Fernandez, a vendor of palamig was walking along M. de la Fuente Street,[2] going towards the direction of Quiapo at the opposite side of the street.[3] Suddenly, three (3) persons met him. One of them was appellant David Salvatierra, who lunged a pointed instrument at Charlie. The latter was able to parry the thrust but appellant swung the instrument anew hitting Charlie at the left breast. Thereafter, all three persons scampered away.[4] Charlie still managed to walk home to tell his father about the incident but suddenly collapsed.[5] He was taken immediately to the hospital where he was operated on. The assault was witnessed by Milagros Martinez, an ambulant vendor of fish and salted eggs who stopped by to rest at the right side of J. Fajardo St. in Sampaloc, Manila near the Trabajo Market. Milagros told the incident only to her daughter.[6] She did not immediately report the incident to the police authorities because she was afraid. Charlies father, Marciano Fernandez, reported the crime to the police at Station No. 4 at about 5:40 that afternoon. Since the victim could not be interviewed as he was then undergoing operation, the police and Marciano Fernandez proceeded to the crime scene to get information about the incident but their effort was fruitless as no one in the area would volunteer to identify the culprits.[7] A relative of the victim informed the police that appellant was one of the suspects in the crime.[8]

The next day or on August 18, 1990, 20-year-old Charlie expired. His death was caused by hemorrhage secondary to the stab wound on the anterior chest wall.[9] The medical report prepared by Dr. Sergio Alteza, Jr., medico-legal officer of the U.S.T. Hospital, showed that Charlie sustained, aside from the stab wound on the chest, another stab wound on the left forearm and an incised wound on the left wrist.[10] Marciano Fernandez went back to Police Station No. 4 to inform the authorities that his son had died. He was advised to report the matter to the Homicide Section of the Western Police District (WPD).[11] where an advance information was prepared indicating that four (4) unidentified persons perpetrated the crime.[12] On November 15, 1990 at about 4:35 in the afternoon, Police Station No.4 received a complaint that appellant was creating a commotion along Miguelin Street, Sampaloc, Manila. He was thereby taken in custody by Pat. Celso Tan and two other policemen who later found out that appellant was a suspect in the killing of Charlie Fernandez.[13] Later that day, appellant was turned over to the WPD. Milagros Martinez learned about the apprehension of appellant from her children. Later, she was approached by Marciano Fernandez who persuaded her to testify on what she witnessed on August 17, 1990. Upon being informed that appellant was transferred to the WPD, the two proceeded to said station where Milagros executed a sworn statement implicating appellant to the crime.[14] In a police line-up, Milagros pinpointed appellant as the person who stabbed Charlie. Thereafter, Pat. Amores prepared a booking sheet and arrest order which appellant signed.[15] On November 19, 1990, appellant was charged with murder in an information which reads as follows: That on or about August 17, 1990 in the City of Manila, Philippines, the said accused, conspiring and confederating with three others whose true names, identities and present whereabouts are still unknown and helping one another, did then and there wilfully,

unlawfully and feloniously with intent to kill and with treachery and evident premeditation, attack, assault and use personal violence upon one CHARLIE FERNANDEZ Y DE GUZMAN, by then and there stabbing the latter twice with a bladed weapon on the chest, thereby inflicting upon him mortal stab wounds which were direct and immediate cause of his death thereafter. Contrary to law.[16] At his arraignment, appellant pleaded not guilty to the crime charged.[17] Apellant put up the defense of alibi alleging that at 4:30 in the afternoon of August 17, 1990, he was having merienda with his wife and children at their home in 459 Miguelin Street, Sampaloc, Manila and could not possibly be near the Trabajo Market.[18] Appellant further testified that in the afternoon of November 15, 1990, he had an altercation with a woman in their neighborhood who caused his arrest for the crime of malicious mischief. He was detained for a few hours at Police Station No. 4. Later. Police from WPD arrived and picked him up and brought him to the Homicide Section where he was investigated, interrogated and detained for the stabbing of one Charlie Fernandez on August 17, 1990.[19] After two (2) days, he was brought out of his cell where a man and two (2) women were made to view him. One of the women was the mother of the victim while the other one was someone he was not acquainted with. The latter was the witness against him who pointed to him as the killer of Charlie in the police line-up. [20] Two days later, he was made to sign a document the contents of which he was not allowed to read. When he insisted on reading the document, his head was hit with a key and he was forced to sign it. The document was the booking and information sheet.[21] In this appeal, he makes the following assignment of errors:

I.-THE COURT A QUO GRAVELY ERRED IN NOT FINDING THAT THE ARREST, INVESTIGATION AND DETENTION OF THE ACCUSEDAPPELLANT FOR THE OFFENSE CHARGED IN THE INSTANT CASE WAS VIOLATIVE OF HIS CONSTITUTIONAL RIGHTS.[22] II.-THE COURT A QUO ERRED IN FINDING THAT TREACHERY ATTENDED THE KILLING OF THE DECEASED CHARLIE FERNANDEZ.[23] III.-THE COURT A QUO GRAVELY ERRED IN ACCEPTING AT FACE VALUE THE VAGUE AND AMBIGUOUS TESTIMONY OF MILAGROS MARTINEZ AND UTILIZING SUCH INCONCLUSIVE TESTIMONY AS THE BASIS FOR CONVICTING THE ACCUSED-APPELLANT OF THE CRIME OF MURDER.[24] Anent the first error, appellant claims that his constitutional right against warrantless arrests was violated because (t)here is nothing on record show that (his) arrest xxx for the minor offense of malicious mischief was effected by virtue of a warrant.[25] Indeed, appellants arrest on suspicion that he was involved in the killing of Charlie Fernandez was made almost three (3) months after the commission of the crime on August 17, 1990 and only after he had been taken in police custody for a minor offense. As such, because no warrant had been obtained during the 3-month intervening period between the commission of the crime and his apprehension, his arrest would have ordinarily been rendered unconstitutional and illegal inasmuch as even warrantless arrests made within shorter periods like ten (10) days[26] are illegal. The element of immediacy between the time of the commission of the offense and the time of the arrest had not been complied with. It should be stressed that section 5(b) of Rule 113 of the Rules of Court has excluded situations under the old rule which allowed a warrantless arrest provided that the offense has in fact been committed.[27]

While these arguments may be valid, appellants claim that the case against him should be dismissed for violation of his constitutional rights, must fail. Appellant is estopped from questioning the legality of his arrest considering that he never raised this before entering his plea. Any objection involving a warrant of arrest or the procedure in the acquisition of jurisdiction over the person of an accused must be made before he enters his plea, otherwise, the objection is deemed waived.[28] This is the first time that appellant is raising this issue as he did not even move for the quashal of the information before the trial court on the ground of illegal arrest. [29] Consequently, any irregularity attendant to his arrest, if any, had been cured by his voluntary submission to the jurisdiction of the trial court when he entered his plea and participated during the trial.[30] Verily, the illegal arrest of appellant is not a sufficient cause for setting aside a valid judgment rendered upon a sufficient complaint and where the trial was free from error.[31] Neither may appellant successfully assert that the case should be dismissed because during custodial investigation and the police line-up he was deprived of his constitutional right to counsel. To bolster his assertion, appellant quotes People v. Campos[32] and People v. Vasquez,[33] where the Court in effect held that during custodial investigation, an accused should be assisted by counsel. Those cases, however, should be distinguished from the case at bar because in the former, the extrajudicial confessions of the accused during custodial investigation were the only bases for conviction, unlike in this case where there are other pieces of evidence by which the culpability of the appellant may be founded. Moreover, in People v. Lamsing,[34] the Court categorically stated as follows: Finally, although it is not assigned as error, accused-appellant complains that he was made to join a police lineup where he was identified by three persons, including Elizabeth De los Santos, without the assistance of counsel. It was settled

in Gamboa v. Cruz (G.R. No. 56291, June 27, 1988, 162 SCRA 642, 651), however, that the right to counsel guaranteed in Art. III, Section 12(1) of the Constitution does not extend to police lineups because they are not part of custodial investigations. The reason for this is that at that point, the process has not yet shifted from the investigatory to the accusatory. The accuseds right to counsel attaches only from the time that adversary judicial proceedings are taken against him.[35] (Italization supplied.) In the same vein, appellant may not validly claim that dismissal of the case against him should be a matter of course because he signed the booking and information sheet without the assistance of counsel. Granting that affixing the signature of an accused is covered by the constitutional mandate requiring assistance of counsel to an accused during custodial investigation, this piece of evidence may be disregarded without the least diluting the prosecutions case against appellant. The booking and information sheet is not the only incriminatory evidence against appellant. What needs scrutiny is the testimony of eyewitness Milagros Martinez. In assailing the testimony of Milagros, appellant points out that it is flawed by inconsistencies on material matters such as while she testified that she did not know the identity of the other assailants, she could delineate appellants features his curly hair, mustache and piercing (nanlilisik) eyes.[36] On the very material point of identification of appellant as the perpetrator of the crime, she testified as follows: FISCAL PERALTA: Did you come to know the name of that person whom you said (was) the victim of that stabbing? WITNESS: A certain Charlie, sir. FISCAL PERALTA: What about that person whom you identified a while ago as the one who stabbed the victim

Charlie? When did you come to know the name David Salvatierra? WITNESS: When I went to the Homicide Section and there was a police lineup made by the police officers there consisting of eight (8) persons and I was made to point to that person who stabbed the victim and I pointed to that person, sir. FISCAL PERALTA: Could you recall, Madam Witness, when was that police lineup conducted? WITNESS: November 17, 1990, sir. FISCAL PERALTA: Now, the incident happened on August 17, 1990. Why is it that it was only November 17, 1990, that you identified the assailant David Salvatierra? WITNESS: Because he was not yet arrested and I was also afraid, sir. xxx FISCAL PERALTA: Now, that person whom you said you saw stabbed the victim together with two (2) other companions and the person whom you pointed to in the police lineup conducted by the police on November 17, 1990, if you see him again, can you still identify him? WITNESS: Yes, sir. FISCAL PERALTA: Will you please look around the courtroom and point to him? COURT:

Fiscal, what are you asking this witness? FISCAL PERALTA: The one who was pointed to by the witness in the police station during the police lineup because she already identified the accused as the one who stabbed, Your Honor. FISCAL PERALTA: (to the Witness) Will you please point to him? WITNESS: That person, sir. INTERPRETER: Witness pointed to a persons (sic) who, when asked, stated his name as David Salvatierra.[37] Even on cross-examination, she remained steadfast on the issue of identification of appellant. Thus: ATTY. CORTES: What pecularities (sic) did these companions of Salvatierra have that could possibly help you identify them when you see them again? WITNESS: When those persons will be showed (sic) to me, I could remember their faces, sir. I just do not know how to describe their appearances but whenever they will be showed (sic) to me, I could possibly identify them, because of my low educational attainment. ATTY. CORTES: Not even their noses, you could not describe? WITNESS: I could not tell you, sir, but I fully remember him. INTERPRETER: Witness is pointing to the Accused. WITNESS: (continuing)

Because he has a moustache and he has a curly hair and at that time, sir, his eyes were fiercing (sic) nanlilisik. [38] From this testimony, it is clear that although Milagros did not know appellants name, she remembered his features and recognize him as the perpetrator of the crime. Indeed, she could not have failed to identify him because she was only eight (8) meters away when the assault occurred. Visibility was not a problem because while there were some pedestrians in the area, traffic light was light and could not have obstructed Milagros view. Furthermore, it was 4:30 in the afternoon when the day was still bright. Aside from the said inconsistency regarding the identity of the perpetrators of the crime, appellant points to other inconsistencies in her testimony such as: (a) she first testified that the three persons met the victim in the sense that, as appellant puts it in his brief, the three (3) persons and the victim were walking towards each other until they met, but later she said that they were only standing on that occasion; (b) she claimed that she never told anyone about the incident and yet Marciano Fernandez was able to locate her; (c) although no one knew the identity of the assailant, Milagros went to Police Station No. 4 upon appellants apprehension, to identify him; (d) Marciano Fernandez asked her to testify on November 16, 1990 and they went to the police the following day; and (e) it was impossible for Milagros to have remembered the features of appellant considering the lapse of time between the commission of the crime and appellants arrest because, contrary to the trial courts finding, she was not so startled by the incident that she continued vending after its occurrence.[39] Obviously geared at derailing the eyewitness credibility, such inconsistencies, however, are collateral matters which are too trivial and minor to affect the credibility of Milagros and the evidentiary value of her testimony.[40] Minor discrepancies in the testimony of a witness even enhances her credibility, as these minor discrepancies could also indicate that the

response given by the witness was honest and unrehearsed. [41] In fact, when an unlettered person like Milagros testifies, inconsistencies in her testimony may be disregarded without impairing her credibility. The evidence actually shows that Milagros Martinez, an ambulant fish vendor who finished only grade 3, was witness to the crime. She never told anybody about what she saw except to her daughter. How she was tracked down by Marciano Fernandez to testify intrigues appellant indeed. But this was a marketplace where people were at least familiar to each other since they were selling their wares regularly in said place and where word got around easily. It was, therefore, not highly improbable that word spread around pointing to Martinez as a possible witness. Martinez did not report the crime to the police immediately because she was afraid. Appellant was a known tough guy in the area. He was a member of the Bahala Na Gang and said to belong to a family of killers.[42] The trial court correctly observed that witnesses to a horrendous crime do not involve themselves by reporting the commission of such crimes because of the attendant and consequent peril to their lives and those of their loved ones. Unless the victims are relatives or close friends of such witnesses, the latter ordinarily keep mum about such incidents and attend to their usual business[43] just as what Milagros exactly did in this case. In crimes such as this, the police, as part of their investigatory work certainly had leads and knew more or less who the suspects were. All what was necessary was a credible witness to confirm their suspicions. Thus, when appellant was arrested, Milagros Martinez was persuaded by Marciano Fernandez to confirm if appellant was indeed the killer. Only sufficient proof of a sinister motive could have discredited Milagros as a credible eyewitness. This the defense failed to provide. Its insinuations that Marciano

Fernandez colluded with Milagros to pin down appellant as the killer of Charlie is bereft of factual foundation and, therefore, they serve no purpose. Having failed to prove such ill motive certainly demolished appellants protestations on the credibility of the prosecutions sole eyewitness. Her testimony is thus entitled to full faith and credit[44] more so because Milagros was even presented by the defense as a hostile witness to prove that she was not around during the incident.[45] Unfortunately, aside from a repetition of her story for the prosecution, the defense elicited no more than the added information that she did not inform the parents of the victim on what she saw because she and her children were afraid of the accused who belonged to a family of killers.[46] Contrary to appellants claim, treachery attended the killing of Charlie Fernandez. Appellants claim that there was no treachery because two of the three assailants did nothing and that the stabbing of the victim could probably be attributed to a whim or impulse and not a planned and deliberate act[47] is too preposterous for comfort. Treachery is present when the offender adopts means, methods or forms in the execution of a felony, which insure its commission without risk to himself arising from the defense which the offended party might make.[48] The prosecution proved beyond reasonable doubt that all these elements were present in the case at bar. They were sufficiently proven by the testimony of Milagros Martinez whose credibility the defense failed to destroy. Appellants and his two (2) companions suddenly appeared, surrounded the victim and appellant stabbed him at least two times. The victim was unarmed. He did not provoked nor attack the assailants. He was alone walking on a street with people around. He had no inkling whatsoever that an assailant and his cohorts were lurking and about to assault him. The fact that the victim and the malefactors were facing each other during the assault does not negate the presence of treachery. Even a frontal attack can be treacherous when it is sudden and unexpected and the victim is unarmed.[49] Neither

may the presence of defense wounds on the body of the victim rule out treachery, Charlies act of parrying with his bare hands the first thrust inflicted by appellant was an instinctive reaction to an attack. After all, the law recognizes mans natural instinct to protect himself from impending danger.[50] The trial court correctly disregarded appellants alibi. It is elementary that for alibi to prosper, credible and tangible proof of physical impossibility for the accused to be at the scene of the crime is indispensable.[51] Even if the testimony of appellants wife that the distance between the crime scene and their house was about twenty minutes walk away, still, it was not impossible for appellant to be in the crime scene and return home for merienda not only by walking but by means of transportation like pedicabs and jeepneys which abounded in the area.[52] The killing of Charlie Fernandez, being qualified by treachery, constituted murder as defined and penalized by Article 248 of the Revised Penal Code punishable by reclusion perpetua in the absence of any aggravating or mitigating circumstances.[53] The proper imposable penalty being an indivisible one, appellant shall not benefit from the provisions of the Indeterminate Sentence Law.[54] The trial court also correctly imposed actual damages of P30,183.25, which amount was duly proven[55] and not contested by the defense, apart from the civil indemnity ofP50,000.00. WHEREFORE, the decision of the trial court convicting appellant David Salvatierra of the crime of murder for the killing of Charlie Fernandez is hereby AFFIRMED in toto. Costde oficio. SO ORDERED. Padilla, Bellosillo, and Vitug, JJ., concur. Hermosisima, Jr., J., on leave.

G.R. No. L-27511

November 29, 1968

IN THE MATTER OF THE APPLICATION FOR A WRIT OF HABEAS CORPUS, SIMON LUNA, petitioner-appellant, vs. HON. LORENZO M. PLAZA, as Judge of the Municipal Court of Tandag, Surigao del Sur; HON. SANTOS B. BEBERINO as Provincial Fiscal of Surigao del Sur; and THE PROVINCIAL WARDEN of Surigao del Sur,respondents- appellees. Sisenando Villaluz and Juan T. David for petitioner-appellant. Office of the Assistant Solicitor General Pacifico P. de Castro and Solicitor Augusto M. Amores for other respondentsappellees. Provincial Fiscal Santos B. Beberno in his own behalf as respondent-appellee. ZALDIVAR, J.: Appeal from the decision of the Court of First Instance of Surigao del Sur, dated April 20, 1967, dismissing the petition for a writ of habeas corpus, filed by herein petitioner-appellant Simon Luna hereinafter referred to simply as petitioner who was charged with murder in Criminal Case No. 655-New of the same court. The criminal action was commenced by T-Sgt. Candido Patosa, PC investigator of Tandag, Surigao del Sur, by filing with respondent Municipal Judge Lorenzo M. Plaza, of the Municipal Court of Tandag, criminal case No. 1138 charging the accused, herein petitioner, with the crime of murder. Supporting the complaint were sworn statements of the witnesses for the prosecution, in the form of questions and answers taken by T-Sgt. Patosa, and subscribed and sworn to before the respondent Judge at the time of the filing of the complaint. The respondent Judge examined the prosecution witnesses by reading to them "all over again the questions and answers" in their statements in writing, and the witnessesaffiants declared before said Judge that the questions were

propounded by T-Sgt. Candido Patosa, and that the answers were made by them. The affiants further declared before respondent Judge that their answers were true, and were freely and voluntarily made; that they fully understood the questions and answers, and that they were willing to sign their respective affidavits. The affiants signed their respective affidavits in the presence of the respondent Judge, who also signed after the usual procedure of administering the oath. Considering the answers of the affiants to the questions contained in their sworn statements, together with the postmortem and autopsy report on the dead body of the victim Jaime Diaz Ng, the certificate of death, the sketch showing the position of the victim and the accused, and Exhibits 6, 7, 8, 12, and 13 of herein respondents, the respondent Judge opined that there was reasonable ground to believe that the crime of murder had been committed and the accused was probably guilty thereof. Respondent Judge issued the order and warrant of arrest, specifying therein that no bail should be accepted for the provisional release of the accused. On February 20, 1967, upon motion of petitioner that he be admitted to bail upon the ground that the evidence of guilt was not strong, respondent Judge issued an order granting bail, fixing it at P30,000.00; which order, however, respondent Judge later revoked, and petitioner was denied bail. The case was subsequently remanded to the Court of First Instance of Surigao del Sur, after petitioner filed a waiver of his right to preliminary investigation. On March 9, 1967 respondent Provincial Fiscal filed an information charging herein petitioner with the crime of murder. The petitioner was detained in the provincial jail of Surigao del Sur under the custody of respondent Provincial Warden. On April 5, 1967, petitioner filed a petition for a writ of habeas corpus with the Court of First Instance of Surigao del Sur, therein docketed as Special Proceedings No. 105-New, claiming that he was being deprived of liberty without the due

process of law, on the ground that the imprisonment and detention was the result of a warrant of arrest issued by respondent Judge in violation of Republic Act No. 3828, and praying for the annulment of the order for his arrest and his discharge from confinement. Herein respondents filed their answer, alleging that Republic Act No. 3828 had been substantially complied with; that a motion to quash, and not a petition for habeas corpus was the proper remedy; and that petitioner's application for bail constituted a waiver of the right to question the validity of the arrest. After trial, the Court of First Instance of Surigao del Sur rendered its decision, dated April 20, 1967, holding that respondent Municipal Judge had substantially complied with Republic Act No. 3828, and consequently denied the application for the writ of habeas corpus, and dismissed the case. Hence this appeal. Petitioner, in his assignment of errors, claims that the trial court erred, as follows: 1. In giving absolute credence to the oral testimony of the respondent Judge to the effect that he adopted and made his own the questions and answers taken by TSgt. Patosa, PC Investigator, one of the prosecution witnesses, because the records show the contrary; 2. In denying the writ of habeas corpus and in dismissing the petition. 1. In support of his first assignment of error, petitioner contends that Republic Act No. 3828 imposes on a municipal judge, before he can issue a warrant of arrest, two specific duties, to wit: (1) personally examine the complainant and witnesses with "searching questions and answers", which means that the judge must cross-examine them in case their affidavits are presented; and (2) said examination must be

reduced to writing and form part of the records of the case. The record of the instant case, according to petitioner, does not show said examination was performed by respondent Judge. Petitioner urges that the absence of any document in the record that shows that respondent Judge had performed the examination is positive proof that respondent Judge did not perform his duty, notwithstanding his testimony before the Court of First Instance of Surigao del Sur, during the hearing of this case, to the effect that he adopted the questions propounded to each of the prosecution witnesses by T-Sgt. Patosa. Petitioner maintains that this testimony, being selfserving intended to cover up the failure to comply with the law, should not have been believed by the Court of First Instance, and said court thereby committed errors when, believing said testimony, it found that there had been substantial compliance with the requirement that the municipal judge should personally examine the witnesses. Petitioner further maintains that assuming that the adoption of the questions made by TSgt. Patosa constituted substantial compliance with the requirement that the judge should examine the witnesses by asking searching questions, still the second requirement, that of reducing to writing the said procedure of adoption, has not been complied with; and so, Republic Act No. 3828 was still violated, and the issuance of the warrant of arrest was in violation of said Act and the Constitution and constituted denial of due process. Petitioner contends that the trial court erred in giving absolute credence to the testimony of respondent Municipal Judge. Regarding credibility of witnesses, this Court has consistently held that, as a general rule, the lower court's findings as to the credibility of witnesses will not be interfered with by appellate courts. Thus, in the case of People vs. Sinaon1 this Court said: Time and again, we have held that as a rule where the issue is one of credibility of witnesses, appellate courts will not generally disturb the findings of the trial court, considering that it is in a better position to decide the

question, having seen and heard the witnesses themselves and observed their deportment and manner of testifying during the trial, unless there is a showing that it has overlooked certain facts of substance and value, that if considered, might affect the result of the case. Petitioner has appealed "from the decision/order" of the trial court "to the Honorable Supreme Court of the Philippines, on the ground that the same is contrary to law and the Philippine Constitution" and prayed that "all the records of the proceeding and the evidence, oral and documentary, be transmitted or forwarded to the Honorable Supreme Court ...".2 Since petitioner appealed directly to this Court he must, therefore, raise only questions of law and he has thereby waived the right to raise any question of fact,3 and the findings of facts of the trial court, under the rules and precedents, must be deemed final and binding upon this Court.4 The findings of facts of the trial court are found in the following portion of the decision appealed from, to wit: There is no dispute that there is a valid complaint charging the accused Simon Luna, the herein petitioner with the crime of Murder filed with the respondent Judge authorized to conduct the examination of the witnesses for the prosecution for the purpose of determining the existence of probable cause before the issuance of the corresponding warrant of arrest; that the complaint is supported by the statements of the witnesses under oath in writing in the form of questions and answers and other documents attached to the complaint; that before the issuance of the corresponding warrant of arrest, the respondent judge personally examined the witnesses for the prosecution on their statements taken by T-Sgt. Candido Patosa by reading the questions and answers all over again to the affiants who confirmed to the respondent Judge that

the statements contained in their sworn statements are true; that being satisfied that the questions and answers contained in the sworn statements taken by TSgt Patosa partake of the nature of his searching questions and answers as required by law, the respondent Judge adopted them as his own personal examination of the witnesses for the purpose of determining the existence of probable cause, the order and the warrant of arrest were issued to take the accused into custody for the commission of the offense charged (Exhibits "H", "H-1", "I", and "I-1"-petitioner); and that the petitioner waived his right to the preliminary investigation (Exhibit "12"-respondent) and applied to be admitted to bail. Petitioner, however, claims that the failure of respondent Judge to put in writing that he adopted the questions asked by T-Sgt. Patosa and his failure to ask "searching questions" violated Republic Act No. 3828. Republic Act No. 3828, approved June 22, 1963, inserted in section 87 (e) of the Judiciary Act of 1948 the following paragraph: No warrant of arrest shall be issued by any justice of the peace in any criminal case filed with him unless he first examines the witness or witnesses personally, and the examination shall be under oath and reduced to writing in the form of searching questions and answers. Before a municipal judge may issue a warrant of arrest, the following conditions must first be fulfilled: (1) he must examine the witnesses personally; (2) the examination must be under oath; (3) the examination must be reduced to writing in the form of searching questions and answers. Were these conditions fulfilled in the instant case? The first condition was fulfilled. The trial court found as a fact that "the respondent judge personally examined the witnesses

for the prosecution ...;" that respondent judge adopted as his own personal examination the questions asked by T-Sgt. Patosa as appearing in the written statements, which he read over again to the witnesses together with the answers given therein, asking the witnesses whether said answers were theirs, and whether the same answers were true, to which the witness answered in the affirmative. Republic Act No. 3828 does not prohibit the municipal Judge from adopting the questions asked by a previous investigator. It appears that the sworn statements5 of the witnesses state at the beginning that the sworn statement was "taken by T-Sgt. Candido L. Patosa", and does not state that it was taken by the respondent municipal Judge himself. This circumstance is explained by the fact that said written statements already taken by T-Sgt. Patosa were delivered to respondent Municipal Judge who adopted the questions therein in his examination, because he considered them searching questions. Respondent Judge presumably did not consider it necessary to change the introductory remarks in each of the written statements. But that he made the examination personally cannot be doubted; it is so stated in the order dated February 18, 1967, which recites: After examining the witness personally and under oath there is reasonable ground to believe that an offense for murder has been committed and that the accused, Simon Luna, is probably guilty thereof. (Exh. H) The ruling in Doce vs. Branch II of the Court of First Instance of Quezon, et al.,6 wherein this Court held that the warrant of arrest issued therein was irregularly issued is not applicable to the case at bar for the simple reason that the facts are different. This Court in that case said: There is merit in the assertion that the warrant of arrest was irregularly issued. Section 87 of the Judiciary Act as amended by Republic Act 3828 requires that the

Municipal Judge issuing the same, personallyexamine under oath the witnesses, and by searching questions and answers which are to be reduced to writing. Here, instead of searching questions and answers, we have only the affidavits of respondent and her one witness. Moreover, said affidavits were sworn to before Judge Cabungcal, not before Judge Juntereal who issued the warrant of arrest. In the instant case, as stated above, the respondent Municipal Judge personally examined under oath the witnesses by asking questions, that were adopted from a previous investigation, and considered by him as sufficiently searching and which questions and the answers thereto were in writing and sworn to before him prior to his issuance of the order of arrest. The second condition required by Republic Act No. 3828 for the issuance of a warrant of arrest was also fulfilled. The trial court found that the complaint was "supported by statements of the witnesses under oath." The record also shows the following documents to have been subscribed and sworn to before respondent Judge, namely: Exhibit B, sworn statement of herein petitioner Simon Luna y Albay; Exhibit C, sworn statement of Eusebio Corpuz; Exhibit D, sworn statement of Bruno M. Zafra; Exhibit E, sworn statement of Martiliano J. Bautista; Exhibit F, sworn statement of Janedina Diaz y Bandoy. The third condition required by Republic Act No. 3828 was likewise fulfilled. The examination of the witnesses was written down, in the form of searching questions and answers. The term "searching questions and answers" means only, taking into consideration the purpose of the preliminary examination which is to determine "whether there is a reasonable ground to believe that an offense has been committed and the accused is probably guilty thereof so that a warrant of arrest may be issued and the accused held for trial",7 such questions as have

tendency to show the commission of a crime and the perpetrator thereof. What would be searching questions would depend on what is sought to be inquired into, such as: the nature of the offense, the date, time, and place of its commission, the possible motives for its commission; the subject, his age, education, status, financial and social circumstances, his attitude toward the investigation, social attitudes, opportunities to commit the offense; the victim, his age, status, family responsibilities, financial and social circumstances, characteristics, etc. The points that are the subject of inquiry may differ from case to case. The questions, therefore, must to a great degree depend upon the Judge making the investigation. At any rate, the court a quo found that respondent judge was "satisfied that the questions and answers contained in the sworn statements taken by T-Sgt. Patosa partake of the nature of his searching questions and answers as required by law," so the respondent Judge adopted them. Petitioner's further contention that the issuance of the warrant of arrest was a violation of the constitution and of procedural due process is likewise untenable. The Constitution, in Section 1(3), Article III, provides that no warrant shall issue but upon probable cause, to be determined by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce. The constitutional requirement of examination of witnesses under oath was, as shown above, fulfilled. The existence of probable cause depended to a large degree upon the finding or opinion of the judge conducting the examination. Respondent judge found that there was probable cause, as stated in his order of arrest, that "after examining the witnesses personally and under oath there is a reasonable ground to believe that an offense of murder has been committed and that the accused, Simon Luna, is probably guilty thereof." Petitioner's last contention that the warrant of arrest issued was a violation of procedural due process because of the

alleged defective preliminary examination has no leg to stand on, in view of what we have hereinbefore stated. Moreover, this Court has held that preliminary examination is not an essential part of due process of law.8Preliminary examination may be conducted by the municipal judge, prior to the issuance of the warrant of arrest, either in the presence, or in the absence, of the accused. The record shows that herein petitioner waived the preliminary investigation before respondent Municipal Judge, and instead, he filed a petition for bail. The petition for bail was at first granted by respondent Judge, but later the order granting bail was revoked. This conduct of petitioner indicates that he had waived his objection to whatever defect, if any, in the preliminary examination conducted by respondent Judge prior to the issuance of the warrant of arrest. Indeed, petitioner has no substantial much less legal ground to complain that he was denied the due process of law. We find that the trial Judge committed no error when he held that, based upon the facts shown during the hearing of this case, respondent Municipal Judge had substantially complied with the requirements of the law specifically Republic Act 3828 before issuing the warrant of arrest in this case. 2. In the light of what has been said above, it appears clear that petitioner's second assignment of error, that the trial court erred in denying the writ of habeas corpus, is untenable. Moreover, Section 4 of Rule 102; of the Rules of Court provides in part, as follows: SEC. 4. When writ not allowed or discharge authorized. If it appears that the person alleged to be restrained of his liberty is in the custody of an officer under process issued by a court or judge ... and that the court or judge had jurisdiction to issue the process ... or make the order the writ, shall not be allowed....

All the conditions, in the afore-quoted Section 4, set forth to deny the writ, are present in the instant case. It is shown that petitioner is detained and is in the custody of the respondent Provincial Warden by virtue of the order of arrest dated February 18, 1967, and the order dated February 21, 1967, of respondent Judge, to confine petitioner in the provincial jail. It is not disputed by petitioner that respondent Judge had jurisdiction to issue the warrant of arrest and the order of commitment under the provisions of Section 47, Republic Act No. 409, as amended by Republic Act No. 1201, although petitioner did question the validity of the warrant of arrest for allegedly having been issued in violation of Republic Act No. 3828 which claim We have found to be untenable. Consequently, the trial Judge did not commit an error in denying the writ of habeas corpus prayed for. At any rate, we believe that, if at all, the remedy available to the petitioner herein, under the circumstances stated in this opinion, is not a petition for a writ of habeas corpus but a petition to quash the warrant of arrest or a petition for a reinvestigation of the case by the respondent Municipal Judge or by the Provincial Fiscal. We wish to stress, however, that what has been stated in this opinion is certainly not intended to sanction the return to the former practice of municipal judges of simply relying upon affidavits or sworn statements that are made to accompany the complaints that are filed before them, in determining whether there is a probable cause for the issuance of a warrant of arrest. That practice is precisely what is sought to be voided by the amendment of Section 87 (c) of Republic Act 296 (Judiciary Act of 1948) which requires that before a municipal judge issues a warrant of arrest he should first satisfy himself that there is a probable cause by examining the witnesses personally, and that the examination must be under oath and reduced to writing in the form of searching questions and answers. It is obvious that the purpose of this amendment is to prevent the issuance of a warrant of arrest against a

person based simply upon affidavits of witnesses who made, and swore to, their statements before a person or persons other than the judge before whom the criminal complaint is filed. We wish to emphasize strict compliance by municipal or city judges of the provision of Section 87 (c) of the Judiciary Act of 1948, as amended by Republic Act 3828, in order to avoid malicious and/or unfounded criminal prosecution of persons.9 In the case now before Us, while it is true that the respondent Municipal Judge did not himself personally cause to be reduced to writing in the form of questions and answers the examination of witnesses presented before him by the person who filed the criminal complaint, We are satisfied that, as shown by the evidence, respondent Judge had personally examined the witnesses under oath and that the questions asked by the Judge and the answers of the witnesses were reflected in writings which were actually subscribed and sworn to before him. Moreover, We are of the considered view that no substantial right of the petitioner had been violated because, as hereinbefore adverted to, petitioner waived his right to preliminary investigation after he was arrested, and he took the step of applying for bail before respondent Municipal Judge. These acts of the petitioner subsequent to his arrest, constitute an implied admission on his part that here was a probable cause for the issuance of the warrant of arrest against him. Those acts of the petitioner constitute a waiver of whatever irregularity, if any there was, that attended his arrest.10 WHEREFORE, the decision of the trial court dated April 20, 1967, appealed from, is affirmed. Costs against petitionerappellant. It is so ordered. Concepcion, C.J., Dizon, Makalintal, Sanchez, Castro, Fernando and Capistrano, JJ., concur. Reyes, J.B.L., J., concurs in the result.

FIRST DIVISION [G.R. No. L-27331 : July 30, 1981.] ELISEO ALIMPOOS, CIRIACA ALIMPOOS, SGT. MILLARDO M. PATES, PEDRO BACLAY, CATALINO YAMILO, RAFAEL CAPANGPANGAN, DALMACIO YGOT and EUFROCINA ESTORES, Petitioners, vs. THE HONORABLE COURT OF APPEALS, HONORABLE JUDGE MONTANO A. ORTIZ, REYNALDO MOSQUITO and MATILDE ABASTILLAS MOSQUITO, Respondents. DECISION MELENCIO-HERRERA, J.: Petitioner-spouses, Eliseo Alimpoos and Ciriaca Alimpoos, shall hereinafter be called the Offended Parties. Petitioners Pedro Baclay, Catalino Yamilo, Rafael Capangpangan, Dalmacio Ygot, Eufrocina Estores and Sgt. Millardo M. Pates may hereinafter be referred to as the Witnesses. Respondent Reynaldo Mosquito will hereinafter be called the Accused. Respondent Matilde A. Mosquito is the Accuseds wife. Respondent Court of Appeals will be termed the Appellate Tribunal; respondent Judge Montano A. Ortiz, as respondent Trial Judge, and the Municipal Judge, as such. In this Petition for Certiorari, the Offended Parties and the Witnesses seek the reversal of the Decision of the Appellate Tribunal, upholding the disallowance of the Offended Parties appeal by the Court of First Instance of Agusan cranad(the Trial Court, for short) in Civil Case No. 1088, entitled Reynaldo Mosquito, et al. vs. Eliseo Alimpoos, et al, wherein respondent Trial Judge granted the Accuseds petition for Habeas Corpus and declared his detention illegal. He also enjoined the prosecution of Criminal Case No. 458 of the Municipal Court of Bayugan, Agusan cranad(hereinafter called Criminal Case) where the Accused had been arrested. The Accused was detained by the Chief of Police of Bayugan, Agusan, by virtue of a Warrant of Arrest issued by the

Municipal Judge in the Criminal Case, which was a prosecution for Robbery with Less Serious Physical Injuries. The place allegedly robbed belonged to the Offended Parties. Contending that the Warrant was issued without the observance of the legal requirements for the issuance thereof, the Accused, then detained, and his wife instituted the Habeas Corpus case before the Trial Court. Named as defendants in the original complaint were the Offended parties and the Witnesses cranad(as witnesses for the prosecution) all of whom are residents of Agusan. In an amended complaint, the two arresting policemen, the Chief of Police, and the Municipal Judge were added as co-defendants. The Complaint of the Accused was premised on the alleged violation of Article 32 cranad(4),cranad(8), cranad(15), cranad(16), cranad(17) and cranad(19) of the Civil Code, and Article 269 of the Revised Penal Code, by defendants therein who were said to have been instrumental in causing the detention and arrest of the Accused. It prayed for the Accuseds release from detention, as well as for the issuance of a Writ of Preliminary Injunction to enjoin the Offended Parties and the Witnesses, and the Municipal Judge and/or their representatives, from proceeding with the Criminal Case. Actual, moral and exemplary damages, attorneys fees, and costs were also prayed for. The Offended Parties and the Witnesses, except Sgt. Pates, were represented by the law firm of Seno, Mendoza and Associates, with offices located in Cebu City. They contended that they had nothing to do with the Accuseds detention and arrest. The Municipal Judge, the Chief of Police, and Patrolmen Libres and Galimba, who were represented by the Acting Provincial Fiscal of Butuan City, alleged that the Warrant of Arrest was validly issued. Sgt. Pates was represented by Capt. Igualdad Cunanan, and reiterated substantially the same defense. After due hearing in the Habeas Corpus case, respondent Trial Judge issued the appealed Order cranad(the ORDER, for short), dated March 26, 1966, declaring the detention of the Accused illegal and granting the Writ of Habeas Corpus as well as the Preliminary Injunction prayed for upon the filing of

the required bond. The dispositive portion of the ORDER reads: WHEREFORE, judgment is hereby rendered declaring illegal the detention of plaintiff Reynaldo Mosquito by virtue of a warrant of arrest issued without the observance of the fundamental legal requirements prior to the issuance of said Writ. The petition for habeas corpus is therefore granted and it is hereby ordered that said detention prisoner be forthwith released from custody, and set at liberty and that upon the filing of the bond in the amount of P1,000.00 a writ of preliminary injunction issue restraining the Municipal Judge of Bayugan, Agusan, defendant Vicente Galicia and the rest of the defendants, their attorneys, agents or representatives from proceeding with Criminal Case No. 458 entitled The People of the Philippines versus Reynaldo Mosquito et als., for the crime of Robbery with Less Serious Physical Injuries, with costs against the defendants in these habeas corpus and preliminary injunction proceedings. SO ORDERED. 1 The Acting Provincial Fiscal of Agusan received copy of said ORDER on March 31, 1966, and on April 1, 1966, moved for extension of time within which to appeal, but eventually desisted from doing so. On April 4, 1966, counsel for the Offended Parties and the Witnesses mailed from Cebu City a Notice of Appeal to the Court of Appeals stating that: Undersigned counsel received a copy of the order only today cranad(April 4, 1966) which copy was handed to him by defendant cranad(petitioner) Eliseo Alimpoos. The appeal was opposed by the Accused on the ground that it was filed beyond the 48-hour reglementary period within which to perfect an appeal in Habeas Corpus proceedings. On April 23, 1966, over the Offended Parties objections, respondent Trial Judge dismissed their appeal thus: The notice of appeal of the Provincial Fiscal or of Atty. Seno for the defendants, having been filed out of time the Order of March 26, 1966 granting the habeas

corpus is now final and executory. The urgent ex-parte motion to grant extension to file notice of appeal does not interrupt the running of the period fixed by law for filing an appeal which is forty-eight hours from receipt of the order. 2 No reconsideration was prayed for by the Provincial Fiscal. The Offended Parties, however, resorted to a Mandamus proceeding before the Court of Appeals seeking to compel respondent Trial Judge to give due course to said appeal. On January 11, 1967, the Appellate Tribunal, 3 in CA-G.R. No. 37781-R, denied Mandamus stating in part: As the records show that copy of the questioned Order was received by counsel on March 30, 1966, the notice of appeal was not filed within the 48-hour limit. Petitioners appeal was therefore filed out of time and the judgment has become final. In view of the foregoing, this petition is hereby denied. Costs against petitioners. Hence, this Petition for Certiorari, filed on March 13, 1967, praying that the Decision of the Appellate Tribunal be set aside and the appeal interposed by the Offended Parties in the Habeas Corpus case be allowed. We gave due course to the Petition on March 31, 1967, and after the filing of the respective Briefs, the case was considered submitted for decision on April 19, 1968. The Offended Parties and the Witnesses pose the following Assignments of Error: I The Honorable Court of Appeals erred in finding that counsel, however, has not presented a shred of proof to bolster his claim of actual receipt of the order, Annex B on April 4, 1966, save of his own self-serving assertions, which cannot prevail over the court record, cranad(Annex 1 of Answer) certified to by the Clerk of Court, bearing the true actual date when the parties and counsel herein received their corresponding copies. The same certified true copy of the order shows that the law office of herein counsel

received its copy on March 30, 1966 not on April 4, 1966; II The Honorable Court of Appeals erred in holding that respondent Judge was fully justified in relying on its own record to determine the date on which petitioners counsel received copy of the order, without any proof thereof, because courts will take judicial notice of its records and of the facts which the same records establish and which are known to judges by reason of their judicial functions. III The Honorable Court of Appeals erred in finding that as the records show that copy of the questioned order was received by counsel on March 30, 1966, the notice of appeal was not filed within the 48-hour limit. IV The Honorable Court of Appeals erred in finding that petitioners appeal was, therefore, filed out of time and the judgment has become final. V The Honorable Court of Appeals erred in denying the Motion for Reconsideration without requiring the adverse party to answer the said Motion for Reconsideration. VI The Honorable Court of Appeals erred in failing to pass upon the issues raised in the lower court and in the Court of Appeals. The technical issue of timeliness of the appeal will first be considered. Counsel for the Offended Parties alleges that he received a copy of the ORDER only on April 4, 1966 from the Offended Party, Eliseo Alimpoos, who handed him the copy in Cebu City. The latter had received it on March 31, 1966. Counsel contends that the reglementary period to appeal can not be reckoned from the latter date because, under the Rules, when a party is represented by counsel, notice should be sent,

not to the party, but to his counsel of record. Counsel for the Offended Parties and the Witnesses further maintains that the period from which to reckon the period of appeal should actually be April 14, 1966 when he actually received, through the mails, his copy of the ORDER, as shown by the rubber stamp of his office appearing on the upper right hand corner of a duplicate copy of the ORDER. 4 Respondent Trial Judge and the Appellate Tribunal alike found the foregoing assertion self-serving and relied instead on the last page of the ORDER, 5 purportedly showing that the law office of counsel for the Offended Parties and the Witnesses received its copy on March 30, 1966 and not on April 4, 1966, hence the disallowance of the appeal by respondent Trial Judge, and its affirmance by the Appellate Court. The crucial last page is reproduced hereunder exactly as it appears: CIVIL CASE NO. 1088 ORDER 5 and preliminary injunction proceedings. SO ORDERED. Done this 26th day of March, 1966 at the City of Butuan. (SGD.) MONTANO A. ORTIZ JUDGE MAO-bb. Recd. 31/3/66 cranad(initial) Received: (Sgd.) Illegible Mun. 3/30/66 7:00 evening

Judge cranad(Sgd.)

Illegible

3/31/66 cranad(Sgd.) B. Galimba 3/30/00 7:00 cranad(Sgd.) Eliseo Alimpoos Received copy March 31, 1966 8:00 A.M. Ciriaco Alimpoos Pedro Baklay Catalino Yamilo Rafael Capangpangan Dalmacio Ygot Eufrocina Estores By: cranad(Sgd.) Eliseo Alimpoos March 31, 1966 (Sgd.) Illegible cranad(Sgd.) Illegible For the Chief of Police 3-30-66 TO ATTYS. SENO, MENDOZA, RUIZ & ASS. & CAPT. CUNANAN BY REG. MAIL #11633 & #11634 A certified true copy: (s) MACARIO C. CONDE (t) MACARIO C. CONDE Clerk of Court 6 cranad(emphasis supplied) Obviously, copies of the ORDER intended for Attys. Seno, Mendoza, Ruiz & Ass. & Capt. Cunanan were sent by registered mail with Receipts Nos. 11633 and 11634. Receipt No. 11633 is the registry number corresponding to the copy for the law office, and Receipt No. 11634 that for Capt. Cunanan. This is borne out by the envelope 7 from the Office of the Clerk of Court Butuan City addressed to Seno, Mendoza, Ruiz and Associates, Cor. Magallanes-D Jakosalem Sts., Aboitiz Bldg., Cebu City with the following markings: On the face of the envelope lower left hand corner: REGISTERED CITY OF BUTUAN

PHILIPPINES March 31, 1966 Superimposed on it in ink is No. 11633 On the back of the envelope appears a big diagonal stamp FOR OFFICIAL USE ONLY and two post office stamp marks: REGISTERED CITY OF BUTUAN PHILIPPINES March 31, 1966 CEBU CITY Received April 11, 1966 Philippines Since the registered mail was received in Cebu City only on April 11, 1966, it is not unlikely that the law office and addressee, as alleged by it, received the mail only three days after, or on April 14, 1966. The notation (Sgd.) Illegible 3-30-66 appearing above the following note: To Attys. Seno, Mendoza, Ruiz & Ass. & Capt. Cunanan by reg. mail #11633 & #11634 can not refer to personal receipt by the said law office for the obvious reason that its office being at Cebu City, personal service would not have been possible in Agusan. It is apparent then that both respondent Trial Judge and the Appellate Tribunal committed error in holding that the

Offended Parties appeal was interposed beyond the reglementary period. Service on the Offended Party, Eliseo Alimpoos, on March 31, 1966 cannot be deemed as notice in law to his counsel. 8 Under the circumstances, therefore, reliance may be placed on the assertion of counsel that the Offended Party, Eliseo Alimpoos, had given him a copy of the ORDER only on April 4, 1966, which must be deemed as the date of notice to said counsel of the ORDER. Counsel lost no time in mailing his Notice of Appeal on the same day, April 4, 1966 from Cebu. 9 Procedurally, the appeal was seasonably filed. Although the Appellate Tribunal had committed error in its appreciation of the date when the lawyers of the Offended Parties were served notice of the ORDER, we believe it would not be justifiable to reverse and to direct respondent Trial Judge to allow the Offended Parties to appeal. Instead, we are opting to render a practical judgment. 1. The original and amended complaints filed by the Offended Parties with the Trial Court contained three causes of action, principally for Habeas Corpus and for damages. However, the proceedings were conducted purely as a Habeas Corpus case. The original complaint was filed on February 22, 1966, and resolved on March 26, 1966, in keeping with the speedy and effectual character of Habeas Corpus proceedings. 10 The ORDER treated the case as exclusively a Habeas Corpus proceeding, ignoring the Accuseds prayer for damages. The lawyers of the Offended Parties attempted to appeal from the ORDER in accordance with Section 19 of Rule 41, captioned who may appeal in Habeas Corpus cases. The Appellate Tribunal resolved in the mandamus case as relating to a Habeas Corpus case. 2. Because the proceedings before the trial Court was a Habeas Corpus case, the complaint filed was obviously defective. A Habeas Corpus proceeding is not a suit between parties. Not a suit between the parties. While the issuance of the writ is to all intents and purposes the commencement of a civil action, a suit, yet technically the proceedings by Habeas Corpus is in no sense a suit between private parties. It is an inquisition by the government, at the suggestion and instance

of an individual, most probably, but still in the name and capacity of the sovereign. It may be analogized to a proceeding in rem and instituted for the sole purpose of fixing the status of a person. The person restrained is the central figure in the transaction. The proceeding is instituted solely for his benefit. As it is not designed to obtain redress against anybody, and as no judgment can be entered against anybody, and as there is no real plaintiff and defendant, there can be no suit in the technical sense. chanroblesvirtualawlibrary(Extraordinary Legal Remedies, Forrest G. Ferris & Forrest G. Ferris, Jr., p. 28) The Accused, therefore, should have limited his complaint against the Chief of Police of Bayugan, the person having him in alleged illegal custody. That is the clear implication in the following provisions of Section 3, Rule 102, which enumerates what should be set forth in a petition for Habeas Corpus: SEC. 3. Requisites of application therefor. Application for the writ shall be by petition signed and verified either by the party for whose relief it is intended, or by some person on his behalf, and shall set forth: (a) That the person in whose behalf the application is made is imprisoned or restrained of his liberty; (b) The officer or name of the person by whom he is so imprisoned or restrained; or, if both are unknown or uncertain, such officer or person may be described by an assumed appellation, and the person who is served with the writ shall be deemed the person intended; (c) The place where he is so imprisoned or restrained, if known; (d) A copy of the commitment or cause of detention of such person, if it can be procured without impairing the efficiency of the remedy; or, if the imprisonment or restraint is without any legal authority, such fact shall appear. The Accuseds allegation as to, and prayer for, damages was out of place. In Habeas Corpus cases, the judgment in favor of

the applicant cannot contain a provision for damages. It has to be confined to what is provided for in Section 15, Rule 102, which reads: SEC. 15. When prisoner discharged if no appeal. When the court or Judge has examined into the cause of caption and restraint of the prisoner, and is satisfied that he is unlawfully imprisoned or restrained, he shall forthwith order his discharge from confinement, but such discharge shall not be effective until a copy of the order has been served on the officer or person detaining the prisoner. If the officer or person detaining the prisoner does not desire to appeal, the prisoner shall be forthwith released. It will be observed that there is no provision for serving copy of the discharge on any other private party defendant, nor for an award of damages. As it has been held: The sole function of the writ is to relieve from unlawful imprisonment, and ordinarily it cannot properly be used for any other purpose. Thus it has been held that the writ cannot properly be used: To enforce a right to service; to determine whether a person has committed a crime; in determine a disputed interstate boundary line; to punish respondent or to afford the injured person redress, for the illegal detention; to recover damages or other money award; . cra. chanroblesvirtualawlibrary(emphasis supplied) cranad(Vt In re St. Onge, 108 A203, 93 Vt. 373; NY People vs. Prior, 182 NYS 577, 112 Misc. 208 [39 C.J.S. 430]). 3. The Accused has challenged the personality of the Offended Parties to interpose the appeal, premised on Section 19 of Rule 41 of the Rules of Court, which provides: SEC 19. Who may appeal in habeas corpus cases. The appeal in habeas corpus cases may be taken in the name of the person detained or of the officer or person detaining him. But if the detention is by reason of civil proceedings the party in interest or the person who caused the detention shall be entitled to control the appeal; and if, by virtue of criminal proceedings, the

provincial fiscal or the city fiscal as the case may be, is entitled to control the appeal on behalf of the government, subject to the right of the Solicitor General to intervene chanroblesvirtualawlibrary(Rule 41). It is indisputable that the Habeas Corpus case arose by virtue of criminal proceedings in the Criminal case. Pursuant to the aforequoted provision, therefore, it was the Provincial Fiscal who was entitled to control the appeal on behalf of the Government. In this case, although the Provincial Fiscal of Agusan, filed a Motion for Extension of Time to Perfect Appeal on April 1, 1966, he had nevertheless abandoned the same. Neither did he take steps for the reconsideration of respondent Trial Judges Order of April 23, 1966 dismissing the appeal. The inaction of the Fiscal may be deemed to have been an admission on his part of the unmeritoriousness of an appeal. As in criminal proceedings, his sound discretion on the matter should be deemed controlling, and it has to be held that the Offended Parties were bereft of personality to prosecute the appeal. Noteworthy is the fact that in the instant case, the Offended Parties had alleged in their Answer 11 that they were not detaining the Accused and had nothing to do with the Warrant of Arrest issued against him. With all the more reason then that they had no personality to interpose an appeal from a judicial Order granting the Writ of Habeas Corpus and ordering the release of a person detained. 4. It has been noted that the ORDER contains a provision enjoining the prosecution of the Accused in the Criminal Case. That is error. If the Accused was illegally detained because he was arrested without a preliminary examination, what should have been done was to set aside the warrant of arrest and order the discharge of the Accused, but without enjoining the Municipal Judge from conducting a preliminary examination and afterwards properly issuing a warrant of arrest. Habeas Corpus proceedings are not meant to determine criminal responsibility. This principle was enunciated in Lee Ching v. Collector of Customs, 33 Phil. 329 cranad(1916) where it was said: Proceedings in habeas corpus are separate and distinct from the main case from which the proceedings

spring. They rarely, if ever, touch the merits of the case and require no pronouncement with respect thereto. When a preliminary investigation is not held, or is improperly held, the procedure is not to dismiss the case, or enjoin its prosecution, but to have the preliminary investigation conducted. As stated in People v. Figueroa, 27 SCRA, 1239, 1247 cranad(1969): Assuming that the trial court felt that the accused should have been given more ample chance and opportunity to be heard in the preliminary investigation, then what it could properly have done, since in its own Order it recognized that Fiscal Abaca had conducted a preliminary investigation although hurriedly in its opinion, was not to dismiss the information but to hold the case in abeyance and conduct its own investigation or require the fiscal to hold a reinvestigation. This Court, speaking through now Mr. Chief Justice Concepcion in People vs. Casiano, had stressed this as the proper procedure, pointing out that the absence of such investigation did not impair the validity of the information or otherwise render it defective. Much less did it affect the jurisdiction of the Court of First Instance over the present case. 5. As a matter of fact, Habeas Corpus was not the proper remedy for the Accused. In a case where a warrant of arrest was assailed for an alleged improper preliminary examination, this Court, in Luna v. Plaza, 26 SCRA, 310, 323 cranad(1968), said: At any rate, we believe that, if at all, the remedy available to the petitioner herein, under the circumstances stated in this opinion, is not a petition for a writ of habeas corpus but a petition to quash the warrant of arrest or a petition for reinvestigation of the case by the respondent Municipal Judge or by the Provincial Fiscal. It is the general rule that Habeas Corpus should not be resorted to when there is another remedy available. As a general rule, a writ of habeas corpus will not be granted where relief may be had or could have been procured by resort to another general remedy, such as

appeal or writ of error. But the existence of another remedy does not necessarily preclude a resort to the writ of habeas corpus to obtain relief from illegal detention, especially where the other remedy is deemed not to be as effective as that of habeas corpus. 12 Time and again, it has been explained that Habeas Corpus cannot function as a writ of error. 13 6. It has further been noted that respondent Trial Judge erred in adjudging costs against defendants in the Habeas Corpus case. When a person confined under color of proceedings in a criminal case is discharged, the costs shall be taxed against the Republic 14 7. The Accused was charged with Robbery with Less Serious Physical Injuries in early 1966. Through the error of the Municipal Judge in issuing the warrant of arrest without conducting a preliminary examination, the Accused was able to institute the Habeas Corpus case which has pended to this date, or for fifteen years. The error of the Municipal Judge has considerably retarded the turning of the wheels of justice. It should be meet to reiterate the following admonition made in the aforecited Luna-Plaza case: We wish to stress, however, that what has been stated in this opinion is certainly not intended to sanction the return to the former practice of municipal judges of simply relying upon affidavits or sworn statements that are made to accompany the complaints that are filed before them, in determining whether there is a probable cause for the issuance of a warrant of arrest. That practice is precisely what is sought to be voided by the amendment of Section 87 cranad(c) of Republic Act 296 cranad(Judiciary Act of 1948) which requires that before a municipal judge issues a warrant of arrest he should first satisfy himself that there is a probable cause by examining the witnesses personally, and that the examination must be under oath and reduced to writing in the form of searching questions and answers. It is obvious that the purpose of this amendment is to prevent the issuance of a warrant of arrest against a person based simply upon affidavits of witnesses who made, and swore to, their statements before a person

or persons other than the judge before whom the criminal complaint is filed. We wish to emphasize strict compliance by municipal or city judges of the provision of Section 87(c) of the Judiciary Act of 1948, as amended by Republic Act 3828, in order to avoid malicious and/or unfounded criminal prosecution of persons. In view of the foregoing considerations, it should be practical to resolve this case in a manner that will not further protract the matter brought to this instance. It will not do merely to reverse and set aside the appealed decision of the Appellate Tribunal, for it will leave the ORDER of respondent Trial Judge outstanding with its injunction against the further prosecution of the Criminal Case. WHEREFORE, in the distinct understanding that this Court has not acted in a proper Habeas Corpus proceeding, the Warrant of Arrest issued against Reynaldo Mosquito in Criminal Case No. 458 of the Municipal Court of Bayugan, Agusan, the Order of March 26, 1966 issued in Civil Case No. 1088 of the Court of First Instance of Agusan, as well as the Decision of the Court of Appeals in its case CA-G.R. No. 37781-R, are hereby set aside; and the proceedings in the last two cases mentioned are invalidated. Without pronouncement as to costs. SO ORDERED. Teehankee cranad(Chairman), Makasiar, Guerrero, JJ., concur. G.R. No. 121234 August 23, 1995 HUBERT J. P. WEBB, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF Fernandez and

INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents, LAURO VIZCONDE, intervenor. G.R. No. 121245 August 23, 1995 MICHAEL A. GATCHALIAN, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274, respondents. G.R. No. 121297 August 23, 1995 ANTONIO L. LEJANO, petitioner, vs. HONORABLE RAUL E. DE LEON, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 258, HONORABLE ZOSIMO V. ESCANO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 259, PEOPLE OF THE PHILIPPINES, ZENON L. DE GUIA, JOVENCITO ZUO, LEONARDO GUIYAB, JR., ROBERTO LAO, PABLO FORMARAN, and NATIONAL BUREAU OF INVESTIGATION, and HONORABLE AMELITA G. TOLENTINO, the Presiding Judge of the Regional Trial Court of Paraaque, Branch 274,respondents.

PUNO, J.:

Before the Court are petitions for the issuance of the extraordinary writs of certiorari, prohibition and mandamuswith application for temporary restraining order and preliminary injunction to: (1) annul and set aside the Warrants of Arrest issued against petitioners by respondent Judges Raul E. de Leon and Amelita Tolentino in Criminal Case No. 95-404; (2) enjoin the respondents from conducting any proceeding in the aforementioned criminal case; and (3) dismiss said criminal case or include Jessica Alfaro as one of the accused therein. 1 From the records of the case, it appears that on June 19, 1994, the National Bureau of Investigation (NBI) filed with the Department of Justice a letter-complaint charging petitioners Hubert Webb, Michael Gatchalian, Antonio J. Lejano and six (6) other persons, 2 with the crime of Rape with Homicide. Forthwith, the Department of Justice formed a panel of prosecutors headed by Assistant Chief State Prosecutor Jovencio R. Zuo to conduct the preliminary investigation 3 of those charged with the rape and killing on June 30, 1991 of Carmela N. Vizconde; 4her mother Estrellita NicolasVizconde, 5 and her sister Anne Marie Jennifer 6 in their home at Number 80 W. Vinzons, St., BF Homes, Paraaque, Metro Manila. During the preliminary investigation, the NBI presented the following: (1) the sworn statement dated May 22, 1995 of their principal witness, Maria Jessica M. Alfaro who allegedly saw the commission of the crime; 7 (2) the sworn statements of two (2) of the former housemaids of the Webb family in the persons of Nerissa E. Rosales and Mila S. Gaviola; 8 (3) the sworn-statement of Carlos J. Cristobal who alleged that on March 9, 1991 he was a passenger of United Airlines Flight No. 808 bound for New York and who expressed doubt on whether petitioner Webb was his co-passenger in the trip; (4) the sworn statement of Lolita Birrer, a former live-in partner of Gerardo Biong, who narrated the manner of how Biong investigated and tried to cover up the crime at bar; 9 (5) the sworn statements of Belen Dometita and Teofilo Minoza, two

of the Vizconde maids, and the sworn statements of Normal White, a security guard and Manciano Gatmaitan, an engineer. The autopsy reports of the victims were also submitted and they showed that Carmela had nine (9) stab wounds, Estrellita twelve (12) and Jennifer nineteen (19). 10 The genital examination of Carmela confirmed the presence of spermatozoa. 11 Before submitting his counter-affidavit, petitioner Webb filed with the DOJ Panel a Motion for Production And Examination of Evidence and Documents for the NBI to produce the following: (a) Certification issued by the U.S. Federal Bureau of Investigation on the admission to and stay of Hubert Webb in the United States from March 9, 1991 to October 22, 1992; (b) Laboratory Report No. SN-91-17 of the Medico Legal Officer, Dr. Prospero A. Cabanayan, M.D.; (c) Sworn Statements of Gerardo C. Biong (other than his Sworn Statement dated October 7, 1991); (d) Photographs of fingerprints lifted from the Vizconde residence taken during the investigation; (e) Investigation records of NBI on Engr. Danilo Aguas, et al.; (f) List of names of 135 suspects/persons investigated by the NBI per Progress Report dated September 2, 1991 submitted by Atty. Arlis Vela, Supervising Agent; (g) Records of arrest, interview, investigation and other written statements of Jessica Alfaro (other than the May 22, 1995 Sworn Statement) conducted by the NBI and other police agencies;

(h) transmittal letter to the NBI, including the report of the investigation conducted by Superintendent Rodolfo C. Sison, Regional Deputy Director, NCRC; (i) The names of NBI officials/agents composing the Task Force Jecares, including their respective positions and duties; (j) Statements made by other persons in connection with the crime charged. The motion was granted by the DOJ Panel and the NBI submitted photocopies of the documents. It alleged it lost the original of the April 28, 1995 sworn statement of Alfaro. This compelled petitioner Webb to file Civil Case No. 951099 in the Regional Trial Court (RTC) of Makati, Br. 63, for the purpose, among others, of obtaining the original of said sworn statement. He succeeded, for in the course of its proceedings, Atty. Arturo L. Mercader, Jr., produced a copy of said original in compliance with a subpoena duces tecum. The original was then submitted by petitioner Webb to the DOJ Panel together with his other evidence. It appears, however, that petitioner Webb failed to obtain from the NBI the copy of the Federal Bureau of Investigation (FBI) Report despite his request for its production. Petitioner Webb claimed during the preliminary investigation that he did not commit the crime at bar as he went to the United States on March 1, 1991 and returned to the Philippines on October 27, 1992. 12 His alibi was corroborated by Honesto Aragon, Lecinia Edrosolano, Sylvia Climaco, Gina Roque, Sonia Rodriguez, Edgardo Venture and Pamela Francisco. 13 To further support his defense, he submitted documentary evidence that he bought a bicycle and a 1986 Toyota car while in the United States on said dates 14 and that he was issued by the State of California Driver's License No. A8818707 on June 14, 1991. 15 Petitioner Webb likewise submitted the letter dated July 25, 1995 of Mr. Robert Heafner,

Legal Attache of the US Embassy, citing certain records tending to confirm, among others, his arrival at San Francisco, California on March 9, 1991 as a passenger in United Airlines Flight No. 808. The other respondents Hospicio "Pyke" Fernandez, Michael Gatchalian, Antonio "Tony Boy" Lejano, Peter Estrada, Miguel Rodriguez and Gerardo Biong submitted sworn statements, responses, and a motion to dismiss denying their complicity in the rape-killing of the Vizcondes. 16 Only the respondents Joey Filart and Artemio "Dong" Ventura failed to file their counteraffidavits though they were served with subpoena in their last known address. 17 In his sworn statement, petitioner Gatchalian alleged that from 11 o'clock in the evening of June 29, 1991 until 3 o'clock in the morning of the following day, he was at the residence of his friends, Carlos and Andrew Syyap, at New Alabang Village, Muntinlupa watching video tapes. He claimed that his copetitioner Lejano was with him. On August 8, 1995, the DOJ Panel issued a 26-page Resolution "finding probable cause to hold respondents for trial" and recommending that an Information for rape with homicide be filed against petitioners and their corespondents, 18 On the same date, it filed the corresponding Information 19 against petitioners and their co-accused with the Regional Trial Court of Paraaque. The case was docketed as Criminal Case No. 95-404 and raffled to Branch 258 presided by respondent judge Zosimo V. Escano. It was, however, the respondent judge Raul de Leon, pairing judge of Judge Escano, who issued the warrants of arrest against the petitioners. On August 11, 1995, Judge Escano voluntarily inhibited himself from the case to avoid any suspicion about his impartiality considering his employment with the NBI before his appointment to the bench. The case was re-raffled to Branch 274, presided by Judge Amelita Tolentino who issued new warrants of arrest against the petitioners and their coaccused. On August 11, 1995, petitioner Webb voluntarily

surrendered to the police authorities at Camp Ricardo Papa Sr., in Bicutan, Taguig. Petitioners Gatchalian and Lejano likewise gave themselves up to the authorities after filing their petitions before us. In their petitions at bar, petitioners contend: (1) respondent Judges de Leon and Tolentino gravely abused their discretion when they failed to conduct a preliminary examination before issuing warrants of arrest against them: (2) the DOJ Panel likewise gravely abused its discretion in holding that there is probable cause to charge them with the crime of rape with homicide; (3) the DOJ Panel denied them their constitutional right to due process during their preliminary investigation; and (4) the DOJ Panel unlawfully intruded into judicial prerogative when it failed to charge Jessica Alfaro in the Information as an accused. We find the petitions bereft of merit. I Petitioners fault the DOJ Panel for its finding of probable cause. They insist that the May 22, 1995 sworn statement of Jessica Alfaro is inherently weak and uncorroborated. They hammer on alleged material inconsistencies between her April 28, 1995 and May 22, 1995 sworn statements. They assail her credibility for her misdescription of petitioner Webb's hair as semi-blonde. They also criticize the procedure followed by the DOJ Panel when it did not examine witnesses to clarify the alleged incredulities and inconsistencies in the sworn statements of the witnesses for the NBI. We start with a restatement of the purpose of a preliminary investigation. Section 1 of Rule 112 provides that a preliminary investigation should determine " . . . whether there is a sufficient ground to engender a well-grounded belief that a crime cognizable by the Regional Trial Court has been

committed and that the respondent is probably guilty thereof, and should be held for trial." Section 3 of the same Rule outlines the procedure in conducting a preliminary investigation, thus: Sec. 3. Procedure. Except as provided for in Section 7 hereof, no complaint or information for an offense cognizable by the Regional Trial Court shall be filed without a preliminary investigation having been first conducted in the following manner: (a) The complaint shall state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents, in such number of copies as there are respondents, plus two (2) copies for the official file. The said affidavits shall be sworn to before any fiscal, state prosecutor or government official authorized to administer oath, or, in their absence or unavailability, a notary public, who must certify that he personally examined the affiants and that he is satisfied that they voluntarily executed and understood their affidavits. (b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss the same if he finds no ground to continue with the inquiry, or issue a subpoena to the respondent, attaching thereto a copy of the complaint, affidavits and other supporting documents. Within ten (10) days from receipt thereof, the respondent shall submit counteraffidavits and other supporting documents. He shall have the right to examine all other evidence submitted by the complainant.

(c) Such counter-affidavits and other supporting evidence submitted by the respondent shall also be sworn to and certified as prescribed in paragraph (a) hereof and copies thereof shall be furnished by him to the complainant. (d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counteraffidavits within the ten (10) day period, the investigating officer shall base his resolution on the evidence presented by the complainant. (e) If the investigating officer believes that there are matters to be clarified, he may set a hearing to propound clarificatory questions to the parties or their witnesses, during which the parties shall be afforded an opportunity to be present but without the right to examine or cross-examine. If the parties so desire, they may submit questions to the investigating officer which the latter may propound to the parties or witnesses concerned. (f) Thereafter, the investigation shall be deemed concluded, and the investigating officer shall resolve the case within ten (10) days therefrom. Upon the evidence thus adduced, the investigating officer shall determine whether or not there is sufficient ground to hold the respondent for trial. Section 4 of Rule 112 then directs that "if the investigating fiscal finds cause to hold the respondent for trial, he shall prepare the resolution and corresponding information. He shall certify under oath that he, or as shown by the record, an authorized officer, has personally examined the complainant and his witnesses, that there is reasonable ground to

believe that a crime has been committed and that the accused is probably guilty thereof . . ." The need to find probable cause is dictated by the Bill of Rights which protects "the right of the people to be secure in their persons . . . against unreasonable searches and seizures of whatever nature . . ." 20 An arrest without a probable cause is an unreasonable seizure of a person, and violates the privacy of persons which ought not to be intruded by the State. 21 Probable cause to warrant arrest is not an opaque concept in our jurisdiction. Continuing accretions of case law reiterate that they are facts and circumstances which would lead a reasonably discreet and prudent man to believe that an offense has been committed by the person sought to be arrested. 22Other jurisdictions utilize the term man of reasonable caution 23 or the term ordinarily prudent and cautious man.24 The terms are legally synonymous and their reference is not to a person with training in the law such as a prosecutor or a judge but to the average man on the street. 25 It ought to be emphasized that in determining probable cause, the average man weighs facts and circumstances without resorting to the calibrations of our technical rules of evidence of which his knowledge is nil. Rather, he relies on the calculus of common sense of which all reasonable men have an abundance. Applying these basic norms, we are not prepared to rule that the DOJ Panel gravely abused its discretion when it found probable cause against the petitioners. Petitioners belittle the truthfulness of Alfaro on two (2) grounds: (a) she allegedly erroneously described petitioner Webb's hair as semi-blond and (b) she committed material inconsistencies in her two (2) sworn statement, thus: 26 xxx xxx xxx

To illustrate, the following are some examples of inconsistencies in the two sworn statements of Alfaro: On whether Alfaro knew Carmela before the incident in question First Affidavit: She had NOT met Carmela before June 29, 1991. Second Affidavit: "I met her in a party sometime in February, 1991." On whether Alfaro saw the dead bodies First Affidavit: She did not see the three dead persons on that night. She just said "on the following day I read in the newspaper that there were three persons who were killed . . ." Second Affidavit: "I peeped through the first door on the left. I saw two bodies on top of the bed, bloodied, and in the floor, I saw Hubert on top of Carmela." On the alleged rape of Carmela Vizconde First Affidavit: She did not see the act of rape. Second Affidavit: She saw Hubert Webb "with bare buttocks, on top of Carmela and pumping, her mouth gagged and she was moaning and I saw tears on her eyes."

On how Webb, Lejano, and Ventura entered the Vizconde house First Affidavit: "by jumping over the fence, which was only a little more than a meter high." Second Affidavit: They "entered the gate which was already open." On whether Alfaro entered the Vizconde house First Affidavit: She never entered the house. Second Affidavit: "I proceeded to the iron grill gate leading to the dirty kitchen." In its Resolution, the DOJ Panel ruled that these alleged misdescription and inconsistencies did not erode the credibility of Alfaro. We quote the pertinent ruling, viz.: 27 xxx xxx xxx As regards the admissibility of Alfaro's statements, granting for purposes of argument merely that she is a co-conspirator, it is well to note that confessions of a co-conspirator may be taken as evidence to show the probability of the co-conspirator's participation in the commission of the crime (see People vs. Lumahang, 94 Phil. 1084). Furthermore, it is a well-established doctrine that conspiracy need not be proved by direct evidence of prior agreement to commit the crime. Indeed, "only rarely would such a prior

agreement be demonstrable since, in the nature of things, criminal undertakings are only rarely documented by agreements in writing. Thus, conspiracy may be inferred from the conduct of the accused before, during and after the commission of the crime, showing that the several accused had acted in concert or in unison with each other, evincing a common purpose or design." (Angelo vs. Court of Appeals, 210 SCRA 402 [1992], citations omitted; People vs. Molleda, 86 SCRA 699). Neither can we discredit Alfaro merely because of the inconsistencies in her two sworn statements. InAngelo, the Court refused to discredit the testimony of a witness accusing therein petitioner for the slaying of one Gaviano Samaniego even though said witness failed to name Angelo in his affidavit which was executed five (5) months earlier. Granting, the Court continued, that a part of the witness' testimony is untrue, such circumstance is not sufficient to discredit the entire testimony of the witness. On August 7, 1995, another counsel for respondent Webb submitted his memorandum suggesting that the instant complaint "should not be decided within the month to give time to the NBI to coordinate with the FBI on the latter's inquiry into the whereabouts of Hubert Webb . . . and to check on our U.S.-based witnesses." In said memorandum, counsel for respondent Webb calls for the application of the maxim falsus in uno, falsus in omnibus arising from the inconsistencies of Alfaro's statements,

among others. This is untenable. As held in Angelo: There is no rule of law which prohibits a court from crediting part of the testimony of a witness as worthy of belief and from simultaneously rejecting other parts which the court may find incredible or dubious. The maxim falsus in uno, falsus in omnibus is not a rule of law, let alone a general rule of law which is universally applicable. It is not a legal presumption either. It is merely a latinism describing the conclusion reached by a court in a particular case after ascribing to the evidence such weight or lack of weight that the court deemed proper. In the case before us, complainant reasoned out that Alfaro was then having reservations when she first executed the first statement and held back vital information due to her natural reaction of mistrust. This being so, the panel believes that the inconsistencies in Alfaro's two sworn statements have been sufficiently explained especially specially so where there is no showing that the inconsistencies were deliberately made to distort the truth. Consequently, the probative value of Alfaro's testimony deserves full faith and credit. As it has been often noted, ex parte statements are generally incomplete because they are usually executed when the affiant's state of mind does not give her sufficient and fair opportunity to

comprehend the import of her statement and to narrate in full the incidents which transpired (People vs. Sarellana, 233 SCRA 31 [1994]; Angelo vs. Court of Appeals, supra). In the case at bar, there is no dispute that a crime has been committed and what is clear before us is that the totality of the evidence submitted by the complainant indicate a prima faciecase that respondents conspired in the perpetration of the imputed offense. We note that the May 22, 1995 sworn statement of Alfaro was given with the assistance of counsel 28 and consists of six (6) pages, in single space reciting in rich details how the crime was planned and then executed by the petitioners. In addition, the DOJ Panel evaluated the supporting sworn statements of Nerissa Rosales and Mila Gaviola, former housemaids of the Webbs, Carlos J. Cristobal, a passenger in United Airlines Flight No. 808 and Lolita Birrer, a paramour of Gerardo Biong. The Panel assayed their statements as follows: 29 xxx xxx xxx According to Nerissa E. Rosales, a former housemaid of the Webb family, on June 29, 1991, between 7:00 o'clock and 8:00 o'clock in the evening, Hubert was at home inside his room with two male visitors. She knew it because she and her co-housemaid, Loany, were instructed by Hubert to bring them three glasses of juice. It was the last time she saw Hubert and was later told by then Congressman Webb that Hubert was in the United States. While Mila S. Gaviola, another former housemaid of the Webb family and who served as a laundry woman, claims, aside from corroborating the statement of Nerissa Rosales,

that on June 30, 1991, she woke up at around 4:00 in the morning and as what she used to do, she entered the rooms of the Webbs to get their clothes to be washed. As a matter of fact, in that early morning, she entered Hubert's room and saw Hubert, who was only wearing his pants, already awake and smoking while he was sitting on his bed. She picked up Hubert's scattered clothes and brought them together with the clothes of the other members of the family to the laundry area. After taking her breakfast, she began washing the clothes of the Webbs. As she was washing the clothes of Hubert Webb, she noticed fresh bloodstains in his shirt. After she finished the laundry, she went to the servant's quarters. But feeling uneasy, she decided to go up to the stockroom near Hubert's room to see what he was doing. In the said stockroom, there is a small door going to Hubert's room and in that door there is a small opening where she used to see Hubert and his friends sniffing on something. She observed Hubert was quite irritated, uneasy, and walked to and from inside his room. On that day, she noticed Hubert left the house at around 1:00 in the afternoon and came back at around 4:00 in the same afternoon and went inside his room using the secret door of the house. It was the last time that she saw Hubert until she left the Webb family. On the other hand, Carlos J. Cristobal alleged that on March 9, 1991, at about 10:00 in the morning, he was at the Ninoy Aquino International Airport as he was then scheduled to take the United Airlines Flight No. 808 at 2:00 in the afternoon for New York. At the airport's

lobby, he saw then Congressman Freddie Webb with a male companion. He greeted him and Webb answered: "Mabuti naman, at ito, ihahatid ko ang anak ko papuntang Florida." He knew Freddie Webb because he often watched him then in a television show "Chicks to Chicks." He observed that the man whom Freddie Webb referred to as his son, was of the same height as Freddie. The son referred to has fair complexion with no distinguishing marks on his face. He (son of Webb) was then wearing a striped white jacket. When he and his children were already inside the plane, he did not see Freddie anymore, but he noticed his son was seated at the front portion of the economy class. He never noticed Freddie Webb's son upon their arrival in San Francisco. He claims that, while watching the television program "DONG PUNO LIVE" lately, he saw the wife of Freddie Webb with her lawyer being interviewed, and when she described Hubert as "moreno" and small built, with a height of five feet and seven inches tall, and who was the one who left for United States on March 9, 1991, he nurtured doubts because such description does not fit the physical traits of the son of Freddie, who left with him for United States on the same flight and date. Lolita Birrer, alleged that she know Gerardo Biong because she had an affair with him for almost three (3) years and in fact, she had a child with him who is now four (4) years old. Their relationship started in February, 1991 until she broke up with him in September 1993. She recalls that on June 29, 1991, at around 6:00 p.m., Biong invited her to play mahjong at the

canteen of a certain Aling Glo located at the back of the Paraaque Municipal Hall. At about 2:30, in the early morning of January 30, 1991, the radio operator of the Paraaque police told Biong that he has a phone call. Before Biong went to the radio room, she was instructed to take him over and after somebody won the game, she followed Biong at the radio room where she overheard him uttering, "Ano?, Saan? Mahirap yan, Paano, o sige, aantayin kita, O ano?, dilaw na taxi, o sige." When he put the phone down, Biong told her, "Mayroon lang akong rerespondehan, ikaw muna ang maupo" and then, he went outside the canteen apparently waiting for somebody. Twenty minutes later, a taxi, colored yellow, arrived with a male passenger sitting at the backseat and parked near the canteen. After it made some signals by blinking its headlight, Biong rode thereat at the front seat beside the driver and then, they left. She was not able to recognize the male passenger because the window of the taxi was tinted. Biong came back at around 7:00 of the same morning and when he arrived, he immediately washed his hands and face, and took his handkerchief from his pocket which he threw at the trash can. She asked him why he threw his handkerchief and he answered, "Hmp . . . amoy tae." She inquired what happened in BF Homes and he replied, "Putang inang mga batang iyon, pinahirapan nila ako." Biong later invited her for breakfast, but they first went to his office where she observed him doing something in his steel cabinet while he appeared to be uneasy. Moments later, Galvan,

another policeman of Paraaque, arrived and said, "Oy Biong, may tatlong patay sa BF, imbestigahan mo" to which Biong answered, "Oo susunod na ako." Biong went to the office of Capt. Don Bartolome who offered to accompany him and with whom she asked permission to go with them. Before they proceeded to the place where the killings happened, she asked Biong if he knew the exact address and the latter immediately responded, "Alam ko na yon." She was surprised because Galvan never told him the place of the incident. As soon as they arrived at the Vizconde's residence, Biong instructed the housemaids to contact the victim's relatives, while the security guard fetched the barangay chairman and the president of the Homeowners Association. When all these persons were already in the house, Biong started recording the wounds of the victim. Inside the master's bedroom, she saw Biong took a watch from the jewelry box. Because she could not tolerate the foul odor, she and Capt. Bartolome went out of the room and proceeded to the dining area. On top of the dining table, she saw the scattered contents of a shoulder bag. Moments later, Biong came out from the room and proceeded to the front door to remove the chain lock; asked the keys from the housemaid and it was only then that the main door was opened. Biong noticed a stone in front of the broken glass of the door and requested Capt. Bartolome to go inside the servant's quarters as he doubted the housemaids' claim that they heard nothing unusual. Using the handle of his gun, Biong

broke the remaining glass of the door panel. Bartolome then came out of the room and told Biong that he can hear the sound of the glass being broken. At the garage, Biong also noticed same marks on the hood of the car. On the following day, at around 12:00 noon, Biong arrived in her house together with the Vizconde housemaids. When Biong was preparing to take a bath, she saw him remove from his pocket the things she also saw from Vizconde's residence, to wit: calling cards, driver's license, ATM card, a crossed check worth P80,000.00, earrings, a ring, bracelet, necklace, and the watch he took from the jewelry box inside the room of the Vizcondes. These jewelry items were later pawned by Biong for P20,000.00 at a pawnshop in front of Chow-Chow restaurant in Santos Avenue, Paraaque. The next day, she saw Biong took from his locker at the Paraaque Police Station an imported brown leather jacket, which the latter claimed to have been given to him by the person who called him up in the early morning of June 30, 1991. Since then, Biong has been wearing said jacket until they broke up sometime in 1993. She observed that Biong seemed not interested in pursuing the investigation of the Vizconde case. In fact, when Biong and this group picked up Mike Gatchalian and brought him to the Paraaque Police Station, she was surprised that Biong halted the investigation when Gatchalian was profusely sweating while being interrogated. After the father of Gatchalian talked to Colonel Pureza, the latter called up and instructed Biong to bring Gatchalian to him

(Colonel Pureza) and that was the last thing she remembered regarding this case. The DOJ Panel then weighed these inculpatory evidence against the exculpatory evidence of petitioners. It ruled:30 xxx xxx xxx The voluminous number of exhibits submitted by respondent Webb to support his defense of denial and alibi notwithstanding, the panel, after a careful and thorough evaluation of the records, believes that they cannot outweigh the evidence submitted by the complainant. Alibi cannot prevail over the positive identification made by a prosecution witness. Verily, alibi deserves scant consideration in the face of positive identification especially so where the claim of alibi is supported mainly by friends and relatives (People vs. Apolonia, 235 SCRA 124 [1994]; People vs. Lucas, 181 SCRA 316 and a long line of cases). Similarly, denial is a self-serving negative which cannot be given greater evidentiary weight than the declaration of a credible witness who testified on affirmative matters (People vs. Carizo, 233 SCRA 687 [1994]). Indeed, denial, like alibi, is weak and becomes even more weaker when arrayed against the positive identification by the witness for the prosecution (People vs. Onpaid, 233 SCRA 62 [1994]). Surprisingly, Gatchalian's defense of alibi was not corroborated by Lejano, whom he claimed was with him watching video tapes at the Syyap residence. Other than claiming that he "was not and could not have been at or near the area of the Vizconde residence at the time of the

alleged commission of the crime," respondent Lejano proffered no evidence to substantiate his claim of alibi. xxx xxx xxx On the other hand, respondent Webb seeks to enhance the acceptability of his alibi in the form of documents tending to show that he was thousands of miles away when the incident occurred. We have carefully deliberated and argued on the evidence submitted by respondent Webb in support of his absence from the country since March 9, 1991 to October 26, 1992 and found the same wanting to exonerate him of the offense charged. The material dates in this case are June 29 and 30, 1991. While respondent Webb may have submitted proof tending to show that he was issued a California driver's license on June 14, 1991, there is no showing that he could not have been in the country on the dates above mentioned. Neither do we find merit in the allegation that respondent Webb personally bought a bicycle on June 30, 1991 in California in view of his positive identification by Alfaro and the two (2) househelps of the Webb family who testified that he was here in the country on said dates. Additionally, the issuance of receipt evidencing the purchase of a bicycle in California is no conclusive proof that the name appearing thereon was the actual buyer of the merchandise. Given these conflicting pieces of evidence of the NBI and the petitioners, we hold that the DOJ Panel did not gravely abuse its discretion when it found probable cause against the petitioners. A finding of probable

cause needs only to rest on evidence showing that more likely than not a crime has been committed and was committed by the suspects. Probable cause need not be based on clear and convincing evidence of guilt, neither on evidence establishing guilt beyond reasonable doubt and definitely, not on evidence establishing absolute certainty of guilt. As well put in Brinegar v. United States, 31 while probable cause demands more than "bare suspicion," it requires "less than evidence which would justify . . . conviction." A finding of probable cause merely binds over the suspect to stand trial. It is not a pronouncement of guilt. Considering the low quantum and quality of evidence needed to support a finding of probable cause, we also hold that the DOJ Panel did not, gravely abuse its discretion in refusing to call the NBI witnesses for clarificatory questions. The decision to call witnesses for clarificatory questions is addressed to the sound discretion of the investigator and the investigator alone. If the evidence on hand already yields a probable cause, the investigator need not hold a clarificatory hearing. To repeat, probable cause merely implies probability of guilt and should be determined in a summary manner. Preliminary investigation is not a part of trial and it is only in a trial where an accused can demand the full exercise of his rights, such as the right to confront and cross-examine his accusers to establish his innocence. In the case at bar, the DOJ Panel correctly adjudged that enough evidence had been adduced to establish probable cause and clarificatory hearing was unnecessary. II We now come to the charge of petitioners that respondent Judge Raul de Leon and, later, respondent Judge Amelita Tolentino issued warrants of arrest

against them without conducting the required preliminary examination. Petitioners support their stance by highlighting the following facts: (1) the issuance of warrants of arrest in a matter of few hours; (2) the failure of said judges to issue orders of arrest; (3) the records submitted to the trial court were incomplete and insufficient from which to base a finding of probable cause; and (4) that even Gerardo Biong who was included in the Information as a mere accessory had a "NO BAIL" recommendation by the DOJ Panel. Petitioners postulate that it was impossible to conduct a "searching examination of witnesses and evaluation of the documents" on the part of said judges. The issuance of a warrant of arrest interferes with individual liberty and is regulated by no less than the fundamental law of the land. Section 2 of Article III of the Constitution provides: Sec. 2. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce and particularly describing the place to be searched and the persons or things to be seized. The aforequoted provision deals with the requirements of probable cause both with respect to issuance of warrants of arrest or search warrants. The similarities and differences of their requirements ought to be educational. Some of them are pointed out by

Professors LaFave and Israel, thus: 32 "It is generally assumed that the same quantum of evidence is required whether one is concerned with probable cause to arrest or probable cause to search. But each requires a showing of probabilities as to somewhat different facts and circumstances, and thus one can exist without the other. In search cases, two conclusions must be supported by substantial evidence: that the items sought are in fact seizable by virtue of being connected with criminal activity, and that the items will be found in the place to be searched. It is not also necessary that a particular person be implicated. By comparison, in arrest cases there must be probable cause that a crime has been committed and that the person to be arrested committed it, which of course can exist without any showing that evidence of the crime will be found at premises under that person's control." Worthy to note, our Rules of Court do not provide for a similar procedure to be followed in the issuance of warrants of arrest and search warrants. With respect to warrants of arrest, section 6 of Rule 112 simply provides that "upon filing of an information, the Regional Trial Court may issue a warrant for the arrest of the accused." In contrast, the procedure to be followed in issuing search warrants is more defined. Thus, Sections 3, 4 and 5 of Rule 126 provide: xxx xxx xxx Sec. 3. Requisites for issuing search warrant. A search warrant shall not issue but upon probable cause in connection with one specific offense to be determined personally by the judge after examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the things to be seized.

Sec. 4. Examination of complainant; record. The judge must, before issuing the warrant, personally examine in the form of searching questions and answers, in writing and under oath the complainant and any witnesses he may produce on facts personally known to them and attach to the record their sworn statements together with any affidavits submitted. Sec. 5. Issuance and form of search warrant. If the judge is thereupon satisfied of the facts upon which the application is based, or that there is probable cause to believe that they exist, he must issue the warrant, which must be substantially in the form prescribed by these Rules. We discussed the difference in the Procedure of issuing warrants of arrest and search warrants in Soliven vs. Makasiar, 33 thus: xxx xxx xxx The second issue, raised by Beltran, calls for an interpretation of the constitutional provision on the issuance of warrants of arrest. The pertinent provision reads: Art. III, Sec. 2. The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable, and no search warrant or warrant of arrest shall issue except upon probable cause to be determined personally by the judge after

examination under oath or affirmation of the complainant and the witnesses he may produce, and particularly describing the place to be searched and the persons or things to be seized. The addition of the word "personally" after the word "determined" and the deletion of the grant of authority by the 1973 Constitution to issue warrants to "other responsible officers as may be authorized by law," has apparently convinced petitioner Beltran that the Constitution now requires the judge to personally examine the complainant and his witnesses in his determination of probable cause for the issuance of warrants of arrest. This is not an accurate interpretation. What the Constitution underscores is the exclusive and personal responsibility of the issuing judge to satisfy himself of the existence of probable cause. In satisfying himself of the existence of probable cause for the issuance of a warrant of arrest, the judge is not required to personally examine the complainant and his witnesses. Following established doctrine and procedure, he shall: (1) personally evaluate the report and the documents submitted by the fiscal regarding the existence of probable cause and, on the basis thereof, issue a warrant; or (2) if on the basis thereof he finds no probable cause, he may disregard the fiscal's report and require the submission of supporting affidavits of witnesses to aid him in arriving at a conclusions as to the existence of probable cause.

Sound policy dictates this procedure, otherwise judges would be unduly laden with the preliminary examination and investigation of criminal complaints instead of concentrating on hearing and deciding cases filed before their courts. Clearly then, the Constitution, the Rules of Court, and our case law 34 repudiate the submission of petitioners that respondent judges should have conducted "searching examination of witnesses" before issuing warrants of arrest against them. They also reject petitioners' contention that a judge must first issue an order of arrest before issuing a warrant of arrest. There is no law or rule requiring the issuance of an Order of Arrest prior to a warrant of arrest. In the case at bar, the DOJ Panel submitted to the trial court its 26-page report, the two (2) sworn statements of Alfaro and the sworn statements of Carlos Cristobal and Lolita Birrer 35 as well as the counter-affidavits of the petitioners. Apparently, the painstaking recital and analysis of the parties' evidence made in the DOJ Panel Report satisfied both judges that there is probable cause to issue warrants of arrest against petitioners. Again, we stress that before issuing warrants of arrest, judges merely determinepersonally the probability, not the certainty of guilt of an accused. In doing so, judges do not conduct a de novo hearing to determine the existence of probable cause. They just personally review the initial determination of the prosecutor finding a probable cause to see if it is supported by substantial evidence. The sufficiency of the review process cannot be measured by merely counting minutes and hours. The fact that it took the respondent judges a few hours to review and affirm the probable cause determination of the DOJ Panel does

not mean they made no personal evaluation of the evidence attached to the records of the case. 36 Petitioners' reliance on the case of Allado vs. Diokno 37 is misplaced. Our Allado ruling is predicated on the utter failure of the evidence to show the existence of probable cause. Not even the corpus delicti of the crime was established by the evidence of the prosecution in that case. Given the clear insufficiency of the evidence on record, we stressed the necessity for the trial judge to make a further personal examination of the complainant and his witnesses to reach a correct assessment of the existence or non-existence of probable cause before issuing warrants of arrest against the accused. The case at bar, however, rests on a different factual setting. As priorly discussed, the various types of evidence extant in the records of the case provide substantial basis for a finding of probable cause against the petitioner. The corpus delicti of the crime is a given fact. There is an eyewitness account of the imputed crime given by Alfaro. The alibi defense of petitioner Webb is also disputed by sworn statements of their former maids. It was therefore unnecessary for the respondent judges to take the further step of examining ex parte the complainant and their witnesses with searching questions. III Petitioners also complain about the denial of their constitutional right to due process and violation of their right to an impartial investigation. They decry their alleged hasty and malicious prosecution by the NBI and the DOJ Panel. They also assail the prejudicial publicity that attended their preliminary investigation.

We reject these contentions. The records will show that the DOJ Panel did not conduct the preliminary investigation with indecent haste. Petitioners were given fair opportunity to prove lack of probable cause against them. The fairness of this opportunity is well stressed in the Consolidated Comment of the Solicitor General, viz.: Again, there is no merit in this contention. Petitioners were afforded all the opportunities to be heard. Petitioner Webb actively participated in the preliminary investigation by appearing in the initial hearing held on June 30, 1995 and in the second hearing on July 14, 1995; and by filing a "Motion for Production and Examination of Evidence and Documents" on June 27, 1995 (p. 4, Petition), a "Reply to the compliance and Comment/Manifestation to the Motion for Production and Examination of Evidence" on July 5, 1995 (p. 6, Petition), a "Comment and Manifestation" on July 7, 1995 (p. 6, Petition), his "Counter-Affidavit" on July 14, 1995 (pp. 67, Petition) and a "Motion to Resolve" on August 1, 1995. Numerous letter-requests were also sent by the petitioner Webb's counsel to the DOJ Panel requesting the latter to furnish him a copy of the reports prepared by the FBI concerning the petitioner's whereabouts during the material period (Annexes "L", "L-1" and "L2" of the Supplemental Petition dated August 14, 1995). In fact, not satisfied with the decision of the DOJ Panel not to issuesubpoena duces tecum to Atty. Arturo L. Mercader, Jr., petitioner Webb filed a "Petition for Injunction, Certiorari, Prohibition and Mandamus" with the Regional Trial Court, Branch 63 of Makati in order to compel said Atty. Mercader, Jr. to produce the

first sworn statement of Alfaro for submission to the DOJ Panel. (p. 4, Petition) The said court dismissed the petition after Mercader produced and submitted to the DOJ Panel the first sworn statement of Alfaro, without ruling on the admissibility and credence of the two (2) conflicting and inconsistent sworn statements of the principal witness, Alfaro. (Attached hereto is a copy of the order of Judge Ruben A. Mendiola, RTC-Makati, Branch 63 dated July 28, 1995) marked as Annex "F." It must also be pointed out that despite the declaration by the DOJ Panel that the preliminary investigation was to be terminated after the hearing held on July 14, 1995, the panel continued to conduct further proceedings, e.g. comparison of the photocopies of the submitted documents with the originals on July 17, 1995. (p. 7, Petition) The panel even entertained the "Response" submitted by accused Miguel Rodriguez on July 18, 1995. (p. 17 Resolution) In addition to these, the panel even announced that any party may submit additional evidence before the resolution of the case. (p. 8, Petition) From the time the panel declared the termination of the preliminary investigation on July 14, 1995, twenty-seven (27) days elapsed before the resolution was promulgated, and the information eventually filed in the Regional Trial Court of Paraaque on August 10, 1995. This notwithstanding the directive of Section 3(f) Rule 112 of the Revised Rules of Court that the investigating officer shall resolve the case within ten (10) days from the termination of the preliminary investigation. The DOJ Panel

precisely allowed the parties to adduce more evidence in their behalf and for the panel to study the evidence submitted more fully. This directly disputes the allegation of the petitioners that the resolution was done with indecent haste in violation of the rights of the petitioners. During the period of twenty-seven (27) days, the petitioners were free to adduce and present additional evidence before the DOJ Panel. Verily, petitioners cannot now assert that they were denied due process during the conduct of the preliminary investigation simply because the DOJ Panel promulgated the adverse resolution and filed the Information in court against them. Petitioners cannot also assail as premature the filing of the Information in court against them for rape with homicide on the ground that they still have the right to appeal the adverse resolution of the DOJ Panel to the Secretary of Justice. The filing of said Information is in accord with Department of Justice Order No. 223, series of 1993, dated June 25, 1993. We quote its pertinent sections, viz.: Sec. 4. Non-Appealable Cases; Exceptions. No appeal may be taken from a resolution of the Chief State Prosecutor/Regional State Prosecutor/Provincial or City Prosecutor finding probable causeexcept upon showing of manifest error or grave abuse of discretion. Notwithstanding the showing of manifest error or grave abuse of discretion, no appeal shall be entertained where the appellant had already been arraigned. If the appellant is arraigned during the pendency of the appeal, said appeal shall be dismissed motu propio by the Secretary of Justice.

An appeal/motion for reinvestigation from a resolution finding probable cause, however, shall not hold the filing of the information in court. Sec. 2. When to appeal. The appeal must be filed within a period of fifteen (15) days from receipt of the questioned resolution by the party or his counsel. The period shall be interrupted only by the filing of a motion for reconsideration within ten (10) days from receipt of the resolution and shall continue to run from the time the resolution denying the motion shall have been received by the movant or his counsel. (Emphasis supplied) Without doubt then, the said DOJ Order No. 223 allows the filing of an Information in court after the consummation of the preliminary investigation even if the accused can still exercise the right to seek a review of the prosecutor's recommendation with the Secretary of Justice. Next, petitioners fault the DOJ Panel for not including Alfaro in the Information considering her alleged conspiratorial participation in the crime of rape with homicide. The non-inclusion of Alfaro is anchored on Republic Act No. 6981, entitled "An Act Providing For A Witness Protection, Security And Benefit Program And For Other Purposes" enacted on April 24, 1991. Alfaro qualified under its Section 10, which provides: xxx xxx xxx Sec. 10. State Witness. Any person who has participated in the commission of a crime and desires to a witness for the State, can apply and, if qualified as determined in this Act and by

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

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

with a wide range of discretion the discretion of whether, what and whom to charge, the exercise of which depends on a smorgasbord of factors which are best appreciated by prosecutors. We thus hold that it is not constitutionally impermissible for Congress to enact R.A. No. 6981 vesting in the Department of Justice the power to determine who can qualify as a witness in the program and who shall be granted immunity from prosecution. 39 Section 9 of Rule 119 does not support the proposition that the power to choose who shall be a state witness is an inherent judicial prerogative. Under this provision, the court, is given the power to discharge a state witness only because it has already acquired jurisdiction over the crime and the accused. The discharge of an accused is part of the exercise of jurisdiction but is not a recognition of an inherent judicial function. Moreover, the Rules of Court have never been interpreted to be beyond change by legislation designed to improve the administration of our justice system. R.A. No. 6981 is one of the much sought penal reform laws to help government in its uphill fight against crime, one certain cause of which is the reticence of witnesses to testify. The rationale for the law is well put by the Department of Justice, viz.: "Witnesses, for fear of reprisal and economic dislocation, usually refuse to appear and testify in the investigation/prosecution of criminal complaints/cases. Because of such refusal, criminal complaints/cases have been dismissed for insufficiency and/or lack of evidence. For a more effective administration of criminal justice, there was a necessity to pass a law protecting witnesses and granting them certain rights and benefits to ensure their appearance in investigative bodies/courts." 40 Petitioner Webb's challenge to the validity of R.A. No. 6981 cannot therefore succeed.

Further, petitioners charge the NBI with violating their right to discovery proceedings during their preliminary investigation by suppressing the April 28, 1995 original copy of the sworn statement of Alfaro and the FBI Report. The argument is novel in this jurisdiction and as it urges an expansive reading of the rights of persons under preliminary investigation it deserves serious consideration. To start with, our Rules on Criminal Procedure do not expressly provide for discovery proceedings during the preliminary investigation stage of a criminal proceeding. 41 Sections 10 and 11 of Rule 117 do provide an accused the right to move for a bill of particulars and for production or inspection of material evidence in possession of the prosecution. 42 But these provisions apply after the filing of the Complaint or Information in court and the rights are accorded to the accused to assist them to make an intelligent plea at arraignment and to prepare for trial. 43 This failure to provide discovery procedure during preliminary investigation does not, however, negate its use by a person under investigation when indispensable to protect his constitutional right to life, liberty and property. Preliminary investigation is not too early a stage to guard against any significant erosion of the constitutional right to due process of a potential accused. As aforediscussed, the object of a preliminary investigation is to determine the probability that the suspect committed a crime. We hold that the finding of a probable cause by itself subjects the suspect's life, liberty and property to real risk of loss or diminution. In the case at bar, the risk to the liberty of petitioners cannot be understated for they are charged with the crime of rape with homicide, a non-bailable offense when the evidence of guilt is strong. Attuned to the times, our Rules have discarded the pure inquisitorial system of preliminary investigation.

Instead, Rule 112 installed a quasi-judicial type of preliminary investigation conducted by one whose high duty is to be fair and impartial. 44 As this Court emphasized in Rolito Go vs. Court of Appeals, 45 "the right to have a preliminary investigation conducted before being bound over for trial for a criminal offense, and hence formally at risk of incarceration or some other penalty, is not a mere formal or technical right; it is a substantive right." A preliminary investigation should therefore be scrupulously conducted so that the constitutional right to liberty of a potential accused can be protected from any material damage. We uphold the legal basis of the right of petitioners to demand from their prosecutor, the NBI, the original copy of the April 28, 1995 sworn statement of Alfaro and the FBI Report during their preliminary investigation considering their exculpatory character, and hence, unquestionable materiality to the issue of their probable guilt. The right is rooted on the constitutional protection of due process which we rule to be operational even during the preliminary investigation of a potential accused. It is also implicit in section (3) (a) of Rule 112 which requires during the preliminary investigation the filing of a sworn complaint, which shall ". . . state the known address of the respondent and be accompanied by affidavits of the complainant and his witnesses as well as other supporting documents . . ." In laying down this rule, the Court is not without enlightened precedents from other jurisdictions. In the 1963 watershed case of Brady v. Maryland 46 the United States Supreme Court held that "suppression of evidence favorable to an accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." Its progeny is the 1935 case ofMooney v. Holohan 47 which laid down the

proposition that a prosecutor's intentional use of perjured testimony to procure conviction violates due process. Thus, evolved jurisprudence firming up the prosecutor's duty to disclose to the defense exculpatory evidence in its possession. 48 The rationale is well put by Justice Brennan in Brady 49 "society wins not only when the guilty are convicted but when criminal trials are fair." Indeed, prosecutors should not treat litigation like a game of poker where surprises can be sprung and where gain by guile is not punished. But given the right of petitioners to compel the NBI to disclose exculpatory evidence in their favor, we are not prepared to rule that the initial non-production of the original sworn statement of Alfaro dated April 28, 1995 could have resulted in the reasonable likelihood that the DOJ Panel would not have found probable cause. To be sure, the NBI, on July 4, 1995, upon request of petitioners, submitted a photocopy of Alfaro's April 28, 1995 sworn statement. It explained it cannot produce the original as it had been lost. Fortunately, petitioners, on July 28, 1995, were able to obtain a copy of the original from Atty. Arturo Mercader in the course of the proceedings in Civil Case No. 951099. 50 As petitioners admit, the DOJ Panel accepted the original of Alfaro's April 28, 1995 sworn statement as a part of their evidence. 51 Petitioners thus had the fair chance to explain to the DOJ Panel then still conducting their preliminary investigation the exculpatory aspects of this sworn statement. Unfortunately for petitioners, the DOJ Panel still found probable cause to charge them despite the alleged material discrepancies between the first and second sworn statements of Alfaro. For reasons we have expounded, this finding of probable cause cannot be struck down as done with grave abuse of discretion. 52 On the other hand, the FBI Report while corroborative of the alibi of petitioner

Webb cannot by itself reverse the probable cause finding of the DOJ Panel in light of the totality of evidence presented by the NBI. Finally, we come to the argument of petitioner that the DOJ Panel lost its impartiality due to the prejudicial publicity waged in the press and broadcast media by the NBI. Again, petitioners raise the effect of prejudicial publicity on their right to due process while undergoing preliminary investigation. We find no procedural impediment to its early invocation considering the substantial risk to their liberty while undergoing a preliminary investigation. In floating this issue, petitioners touch on some of the most problematic areas in constitutional law where the conflicting demands of freedom of speech and of the press, the public's right to information, and an accused's right to a fair and impartial trial collide and compete for prioritization. The process of pinpointing where the balance should be struck has divided men of learning as the balance keeps moving either on the side of liberty or on the side of order as the tumult of the time and the welfare of the people dictate. The dance of balance is a difficult act to follow. In democratic settings, media coverage of trials of sensational cases cannot be avoided and oftentimes, its excessiveness has been aggravated by kinetic developments in the telecommunications industry. For sure, few cases can match the high volume and high velocity of publicity that attended the preliminary investigation of the case at bar. Our daily diet of facts and fiction about the case continues unabated even today. Commentators still bombard the public with views not too many of which are sober and sublime.

Indeed, even the principal actors in the case the NBI, the respondents, their lawyers and their sympathizers have participated in this media blitz. The possibility of media abuses and their threat to a fair trial notwithstanding, criminal trials cannot be completely closed to the press and the public. In the seminal case of Richmond Newspapers, Inc. v. Virginia, 53 it was wisely held: xxx xxx xxx (a) The historical evidence of the evolution of the criminal trial in Anglo-American justice demonstrates conclusively that at the time this Nation's organic laws were adopted, criminal trials both here and in England had long been presumptively open, thus giving assurance that the proceedings were conducted fairly to all concerned and discouraging perjury, the misconduct of participants, or decisions based on secret bias or partiality. In addition, the significant community therapeutic value of public trials was recognized: when a shocking crime occurs, a community reaction of outrage and public protest often follows, and thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. To work effectively, it is important that society's criminal process "satisfy the appearance of justice," Offutt v. United States, 348 US 11, 14, 99 L Ed 11, 75 S Ct 11, which can best be provided by allowing people to observe such process. From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, it must be concluded that a presumption of openness inheres in the very nature of a criminal trial

under this Nation's system of justice, Cf., e.g., Levine v. United States, 362 US 610, 4 L Ed 2d 989, 80 S Ct 1038. (b) The freedoms of speech, press, and assembly, expressly guaranteed by the First Amendment, share a common core purpose of assuring freedom of communication on matters relating to the functioning of government. In guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees; the First Amendment right to receive information and ideas means, in the context of trials, that the guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time the First Amendment was adopted. Moreover, the right of assembly is also relevant, having been regarded not only as an independent right but also as a catalyst to augment the free exercise of the other First Amendment rights with which it was deliberately linked by the draftsmen. A trial courtroom is a public place where the people generally and representatives of the media have a right to be present, and where their presence historically has been thought to enhance the integrity and quality of what takes place. (c) Even though the Constitution contains no provision which by its terms guarantees to the public the right to attend criminal trials, various fundamental rights, not expressly guaranteed, have been recognized as indispensable to the enjoyment of enumerated rights. The right to

attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated. Be that as it may, we recognize that pervasive and prejudicial publicity under certain circumstances can deprive an accused of his due process right to fair trial. Thus, in Martelino, et al. vs. Alejandro, et al., 54 we held that to warrant a finding of prejudicial publicity there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, we find nothing in the records that will prove that the tone and content, of the publicity that attended the investigation of petitioners fatally infected the fairness and impartiality of the DOJ Panel. Petitioners cannot just rely on the subliminal effects of publicity on the sense of fairness of the DOJ Panel, for these are basically unbeknown and beyond knowing. To be sure, the DOJ Panel is composed of an Assistant Chief State Prosecutor and Senior State Prosecutors. Their long experience in criminal investigation is a factor to consider in determining whether they can easily be blinded by the klieg lights of publicity. Indeed, their 26-page Resolution carries no indubitable indicia of bias for it does not appear that they considered any extra-record evidence except evidence properly adduced by the parties. The length of time the investigation was conducted despite its summary nature and the generosity with which they accommodated the discovery motions of petitioners speak well of their fairness. At no instance, we note, did petitioners seek the disqualification of any member of the DOJ Panel on the ground of bias resulting from their bombardment of prejudicial publicity.

It all remains to state that the Vizconde case will move to a more critical stage as petitioners will now have to undergo trial on the merits. We stress that probable cause is not synonymous with guilt and while the light of publicity may be a good disinfectant of unfairness, too much of its heat can bring to flame an accused's right to fair trial. Without imposing on the trial judge the difficult task of supervising every specie of speech relating to the case at bar, it behooves her to be reminded of the duty of a trial judge in high profile criminal cases to control publicity prejudicial to the fair administration of justice. 55 The Court reminds judges that our ability to dispense impartial justice is an issue in every trial and in every criminal prosecution, the judiciary always stands as a silent accused. More than convicting the guilty and acquitting the innocent, the business of the judiciary is to assure fulfillment of the promise that justice shall be done and is done and that is the only way for the judiciary to get an acquittal from the bar of public opinion. IN VIEW WHEREOF, the petitions are dismissed for lack of showing of grave abuse of discretion on the part of the respondents. Costs against petitioners. SO ORDERED. Regalado, J., concurs. Mendoza, J., concurs in the result. Narvasa, C.J., is on leave.

Separate Opinion

FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference. Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary

investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial. With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his

duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and crossexamine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs.

Preliminary investigation, unlike trial, is summary in nature, the purpose of which is merely to determine whether a crime has been committed and whether there is probable cause to believe that the accused is guilty thereof (Paderanga v. Drilon, 196 SCRA 86, 92 [1991]). It is not intended to find guilt beyond reasonable doubt. Courts should give deference, in the absence of a clear showing of arbitrariness, as in this case, to the finding and determination of probable cause by prosecutors in preliminary investigations. If not, the functions of the courts will be unduly hampered by innumerable petitions compelling the review of the exercise of discretion on the part of fiscals or prosecuting attorneys if each time they decide to file an information in court their finding can be immediately brushed aside at the instance of those charged (Ocampo IV v. Ombudsman, 225 SCRA 725, 730 [1993]). The Court, therefore, must look askance at unmeritorious moves that could give a dent in the efficient and effective administration of justice. Petitioners characterize the evidence against them to be inherently weak and uncorroborated vis-a-vis their defenses. The weight or sufficiency of evidence, to my mind, is best assayed in the trial proper. In the search for truth, a trial has distinct merits over a preliminary investigation. We have had occasion to stress that trial is to be preferred to ferret out the truth (Abugotal v. Tiro, 66 SCRA 196, 201 [1975]). The validity and merits of a party's defense or accusation as well as the admissibility or inadmissibility of testimonies and evidence are better ventilated during the trial stage than in the preliminary investigation level. The ineluctable media attention notwithstanding, truth as to their innocence or guilt is still best determined at the trial.

Separate Opinion FRANCISCO, J., concurring: The thrust of petitioners' arguments involve the validity and exercise of the prosecutory powers of the State. Maintaining their innocence, petitioners assert that the filing of an information and the issuance of warrants of arrest against them were without probable cause. Petitioners, in my considered view, failed to make a case to warrant the Court's interference.

With respect to petitioners' contention that public respondent judge failed to personally examine and determine the existence of probable cause for the issuance of a warrant, suffice it to say that the judge does not have to personally examine the complainant and his witnesses in order to issue a warrant of arrest as he can rely on the certification of the prosecutor/s (Circular No. 12 Guidelines on Issuance of Warrants of Arrests [June 30, 1987]; Soliven v. Makasiar, 167 SCRA 393, 398 [1988]). There is ample evidence and sufficient basis on record that support the trial court's issuance of the warrant as petitioners themselves do not contend that the prosecutors' certification was unaccompanied by the records of the preliminary investigation to take their case outside the ambit of the rule. Moreover, contrary to what the petitioners imply, the Court may not determine how cursory or exhaustive the judge's examination of the certification, report and findings of the preliminary investigation and its annexes should be as this depends not only upon the sound exercise of the judge's discretion in personally determining the existence of probable cause, but also from the circumstances of each case (Lim, Sr. v. Felix, 194 SCRA 292, 306 [1991]). Besides, respondent judge, being a public officer, enjoys the presumption of regularity in the performance of his duties (Rule 131, Sec. 3 [m], Rules of Court). The issuance of the warrants of arrest against petitioners thus can not be said to be whimsical or arbitrary. Lastly, the law in this jurisdiction is lopsided in favor of the accused. The 1987 Constitution and the Rules of Court enumerate an array of rights upon which an accused can seek protection and solace. To mention a few: he has the right to be presumed innocent until the contrary is proved, the right against self-incrimination, the right to remain silent, to confront and cross-

examine the witnesses against him, to have a speedy, impartial and public trial, to be heard by himself and counsel, to have competent and independent counsel preferably of his own choice. These rights are afforded to the accused and not to the complainant. Therefore, petitioners need not be distressed if they henceforth go to trial. I vote to dismiss the petitions. Mendoza, J., concurs.