Nat'l Security - Public Order (5)

8/11/2019 Nat'l Security - Public Order (5)

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ABAY vs. PEOPLE

DECISION

QUISUMBING, J.:

This petition for review assails the Decision[1]dated October 27, 2003 and the Resolution[2]dated October 14, 2004 ofthe Court of Appeals in CA G.R. CR No. 25212. The Court of Appeals had affirmed the Decision[3]of the Regional TrialCourt (RTC) of San Pedro, Laguna, Branch 31, finding petitioners guilty of the crime of Highway Robbery in CriminalCase No. 9045-B.

The facts are as follows:

On January 13, 1995, an Information was filed charging Rustico Abay, Jr., Reynaldo Darilag, Ramoncito Aban, ErnestoRicalde, Ramon Punzalan, Ariston Reyes, Isagani Espeleta, Cesar Camacho, Leonardo Perello and Danilo Pascual with thecrime of Highway Robbery/Brigandage. Said information reads:

x x x x

That on or about 7:30 oclock in the evening of February 17, 1994, at the South Luzon Expressway, Municipality ofBian, Province of Laguna, and within the jurisdiction of this Honorable Court, accused Ramoncito Aban y Casiano,

Ernesto Ricalde y Jovillano, Rustico Abay, Jr. y Serafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolinario,Leonardo Perello y Esguerra and Danilo Pascual y Lagata, who are principals by direct participation, conspiring andconfederating together with Ariston Reyes y Plaza, Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo, who areprincipals by indispensable cooperation and mutually helping each other, form themselves as band of robbers andconveniently armed with handguns and deadly bladed weapons, and while on board a Kapalaran Bus Line with platenumber DVT-527 bound for Sta. Cruz, Laguna and a semi stainless owner type jeep with plate number PJD-599 asbackup vehicle, accused with the use of the aforesaid handguns and bladed weapons with intent to gain and taking thepassengers of the bus by surprise, did then and there wilfully, unlawfully and feloniously divest and take awaypersonalties of the passengers and/or occupants therein, among them were:

a) Thelma Andrade y Lorenzana, P3,500.00 cash;

b) Gloria Tolentino y Pamatmat, P30,000.00 cash, $2,000.00 dollars and eyeglasses (Perare) worth P5,000.00;

c) Lilian Ojeda y Canta, P120.00 cash;

d) Paul Masilang y Reyes, assorted used clothes of undetermined amount;

and by reason or on occasion of the said robbery, accused shot passenger Rogelio Ronillo y Lumboy, inflicting uponhim gunshot wounds on the neck, thus, accused performed all the acts of execution that would produce the crime ofhomicide, but nevertheless, did not produce by reason of causes independent of the will of the accused, that is by thetimely medical assistance rendered to Rogelio Ronillo y Lumboy, and to his damage and prejudice and to the damagesand prejudices of the following:

a) Thelma Andrade y Lorenzana in the sum of P3,500.00;

b) Gloria Tolentino y Pamatmat in the sum of P30,000.00;

c) Lilian Ojeda y Canta in the sum of P120.00

That the commission of the offense was attended with the aggravating circumstances of nighttime, by a band and withthe use of motor vehicle.

With the additional aggravating circumstance that accused Isagani Espeleta y Arguelles and Cesar Camacho y Deolazo,being prison guards, have taken advantage of their public position by bringing out prison inmates and equipped themwith deadly weapons and were utilized in the commission of robbery:

With the further additional aggravating circumstance on the following accused/inmates, as follows:
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1) Ramoncito Aban y Casiano with prison number 121577 as recidivist, having been convicted by final judgment onJune 15, 1984 by the RTC, Branch VI, Malolos, Bulacan, in Criminal Case No. 3874-M for Robbery with Homicide;

2) Ariston Reyes y Plaza with prison number 115906-P, as recidivist, having been convicted by final judgment on March11, 1982 by the CFI, Manila in Criminal Case No. 82-3001 for Robbery; having been convicted by final judgment onSeptember 2, 1987 by the RTC Branch 94, Quezon City, in Criminal Case No. 37432 for Robbery; and for Reiteracion orhabituality for having served sentence for Homicide, convicted on March 25, 1991 by the RTC, Branch 34, Quezon City;

3) Reynaldo Darilag y Apolinario with prison number 129552-P for reiteracion or habituality for having been previouslypunished for an offense of murder in Criminal Case No. 039 by the RTC, Branch 5, Tuguegarao, Cagayan and as arecidivist for having been previously convicted by final judgment on July 8, 1987 by the same Court in Criminal CaseNo. 040 for Robbery;

4) Rustico Abay, Jr. y Serafico with prison number 132566-P as a recidivist for having been previously convicted by finaljudgment on August 31, 1988 by the RTC, Branch 163 Manila, in Criminal Case No. 71060 for Theft;

5) Ramon Punzalan y Carpena with prison number 113605-P as recidivist for having been previously convicted by finaljudgment by the RTC, Branch 111, San Pablo City on the following dates, to wit:

January 8, 1981 in Criminal Case No. 2454-SP, for Robbery in Band;

December 8, 1981, in Criminal Case No. 2549 for Theft;

October 7, 1983 in Criminal Case No. 2550-SP for Carnapping; and

Having been previously convicted by final judgment by the City Court of San Pablo City on March 30, 1981 in CriminalCase No. 17738 for simple theft;

6) Ernesto R[i]calde y Jov[i]llano with prison number N92P-2735, as a recidivist for having been previously convicted byfinal judgment on August 2, 1992 by the RTC, Branch 54, Lucena City in Criminal Case No. 91-679 for simple theft.

CONTRARY TO LAW.[4]

When arraigned, all the accused pleaded not guilty. However, upon motion filed by accused Ramoncito Aban, with theconformity of the public prosecutor and private complainants Thelma Andrade and Gloria Tolentino, he was allowed to

withdraw his earlier plea of "not guilty". Thus, on September 11, 1997, Ramoncito Aban, with the assistance of hiscounsel, pleaded "guilty" to the crime of simple robbery and on even date, the trial court sentenced him. Meanwhile,trial proceeded with respect to the other accused.

The prosecution presented the following witnesses: Thelma Andrade, Gloria Tolentino and Ramoncito Aban.

Thelma Andrade, a conductress of the Kapalaran Bus Line, testified that in the evening of February 17, 1994, the busshe was on was held-up. She said that Ramoncito Aban took from her, at gunpoint, the fares she collected from thepassengers of the bus. She also identified Rustico Abay, Jr. and Ernesto Ricalde as two of the other companions ofAban.[5]

Gloria Tolentino, a passenger of the bus, testified that someone shouted "hold-up" and ordered them to bow theirheads. She obeyed the order but once in a while she would raise her head. According to Tolentino, the man seatedbeside her, Ariston Reyes, took her money and pieces of jewelry and handed them over to Reynaldo Darilag. She alsoidentified Rustico Abay, Jr. as one of the companions of the robbers.[6]

Ramoncito Aban, the last witness, testified that on February 22, 1994, Camacho and Espeleta, who were both prisonguards of the New Bilibid Prison (NBP), took him and his companions, Ricalde, Abay, Jr., Punzalan, Darilag, Reyes,Perello and Pascual, on board the owner-type jeepney of Camacho to stage a hold-up. He said they held-up a Kapalaranbus and it was Punzalan and Darilag who took the money and other belongings of the passengers in the bus. He furthertestified that the February 22, 1994 hold-up was the fourth staged by their group. According to Aban, the other hold-ups were carried out on February 11, 13 and 17, and all four hold-ups were staged by the same persons.[7]

The defense, for its part, presented the testimony of petitioners Rustico Abay, Jr., and Reynaldo Darilag, the other co-accused, and Genaro Alberto.
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All the accused denied participation in the robbery that happened on February 17, 1994. Abay, Jr., Darilag, Reyes andRicalde, who were detention prisoners, testified that they were confined in the NBP at the time the incidenthappened.[8]Pascual and Perello, both civilians, testified that they were at home then.[9]Genaro Alberto, a prisonguard at the Bureau of Corrections, testified that during the headcount of the inmates conducted at 5:00 p.m. and 8:00p.m. on February 17, 1994, no inmate was found to be missing.[10]

In a Decision dated November 29, 2000, the RTC of San Pedro, Laguna, Branch 31 found petitioners Abay, Jr. andDarilag, as well as the other accused guilty of the crime charged. The trial court decreed as follows:

WHEREFORE, this Court hereby renders judgment convicting accused Ernesto Ricalde y Jovillano, Rustico Abay, Jr. ySerafico, Ramon Punzalan y Carpena, Reynaldo Darilag y Apolicario, Ariston Reyes y Plaza, Isagani Espeleta y Arguelles,Cesar Camacho y Deolazo, Leonardo Perello y Esguerra and Danilo Pascual y Lagata of the crime of highwayrobbery/holdup attended by the aggravating circumstance of a band only and hereby sentences each of them:

1) to suffer an indeterminate penalty of imprisonment [of] 17 twelve (12) years and one (1) day as minimum tothirteen (13) years, nine (9) months and eleven (11) days as maximum, both of reclusion temporal in its minimumperiod;

2) to indemnify Thelma Andrade, the amount of P3,500 and Gloria Tolentino, the amount of P30,000 and US$2,000;and

3) to pay the costs.

SO ORDERED.[11]

The Court of Appeals on appeal acquitted Espeleta, Camacho and Punzalan of the crime charged but affirmed theconviction of petitioners Abay, Jr. and Darilag, Ricalde and Reyes. The dispositive portion of the Decision dated October27, 2003 states:

WHEREFORE, the assailed decision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No.9045-B, is REVERSED and SET ASIDE, but only insofar as accused-appellants Isagani Espeleta, Cesar Camacho andRamon Punzalan, are concerned, for insufficiency of evidence. Isagani Espeleta, Cesar Camacho and Ramon Punzalanare hereby ACQUITTED. Unless held for any other charge/charges their immediate release is hereby ordered.

With respect to accused-appellants Rustico Abay, Jr., Ernesto Ricalde, Reynaldo Darilag and Ariston Reyes, the saiddecision of the Regional Trial Court of San Pedro, Laguna, Branch 31, in Criminal Case No. 9045-B, finding them guilty

beyond reasonable doubt of the crime of highway robbery/hold-up is hereby AFFIRMED IN TOTO.

SO ORDERED.[12]

Petitioners Abay, Jr. and Darilag moved for a reconsideration of the aforesaid decision, but their motion was denied.Hence, they filed the instant petition raising a single issue:

WHETHER OR NOT PETITIONERS MAY BE CONVICTED ON THE BASIS OF THE TESTIMONIES OF RAMONCITO ABAN,THELMA ANDRADE AND GLORIA TOLENTINO.13

Stated simply, did the Court of Appeals err in affirming on the basis of the testimonies of said three witnesses theconviction of petitioners Abay, Jr. and Darilag?

In their petition,[14]petitioners Abay, Jr. and Darilag assert that their guilt has not been proven beyond reasonable

doubt. They argue that Ramoncito Aban is not a credible witness and that he testified on an incident which happenedon February 22, 1994 and not on February 17, 1994 as alleged in the information. Petitioners also claim that nophysical evidence linking petitioners to the crime was presented. They likewise point to a related case filed againstthem wherein they were acquitted. They fault the trial court and Court of Appeals for disregarding their defense of alibiand in giving credence to the testimonies of Andrade and Tolentino, contending that these testimonies were incredibleand unsubstantiated. They likewise contend that the lower courts erred in relying on Abans extrajudicial confessionwhich was coerced.

The Office of the Solicitor General (OSG) challenges the petition on the ground that the petition raises a question offact. It also maintains that Aban is a credible witness and that petitioners17 defense of alibi cannot prevail over thepositive testimonies of the prosecution witnesses.[15]
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After a thorough examination of the evidence presented, we are in agreement that the appeal lacks merit.

At the outset, we note that it was not Abans extrajudicial confession but his court testimony reiterating his declarationsin his extrajudicial admission, pointing to petitioners as his co-participants, which was instrumental in convictingpetitioners of the crime charged. Settled is the rule that when the extrajudicial admission of a conspirator is confirmedat the trial, it ceases to be hearsay. It becomes instead a judicial admission, being a testimony of an eyewitnessadmissible in evidence against those it implicates.[16]Here, the extrajudicial confession of Aban was affirmed by him inopen court during the trial. Thus, such confession already partook of judicial testimony which is admissible in evidenceagainst the petitioners.

We likewise agree in finding without merit the petitioners17 argument that, since Abans testimony is not credible asto Espeleta, Camacho and Punzalan who were acquitted, then it should also be held not credible as to them. But in ourconsidered view, the petitioners are not similarly situated as their aforementioned co-accused. Other than the testimonyof Aban, there were no other witnesses who testified on the participation of Espeleta, Camacho and Punzalan. Incontrast, anent the herein petitioners17 participation in the crime, not only is their conviction based on the testimonyof Aban, but it was also established by the eyewitness testimony of Andrade and Tolentino who identified positively thepetitioners in open court.

Petitioners further aver that Aban testified on a robbery which took place on February 22, 1994, not February 17, 1994.Granted that Ramoncito Aban in fact testified on the details of the robbery which happened on February 22, 1994.However, it is also worth stressing as part of the prosecution evidence that Aban testified that malefactors used thesame route and strategy in the perpetration of the robberies which happened on four occasions -- February 11, 13, 17and 22, 1994. What happened on February 22 was but a replication, so to speak, of the robbery scenarios earlier

perpetrated by the same gang on three previous dates. It is very clear, however, that Aban, on the witness stand wastestifying specifically also about the offense that took place on February 17 in the Expressway, Bian, Laguna.

Petitioners claim that no physical evidence was presented by the prosecution linking the petitioners to the crimecharged. But in this case, the alleged failure of the prosecution to present physical evidence does not adversely affectthe over-all weight of the evidence actually presented. Physical evidence would be merely corroborative because thereare credible witnesses who testified on the complicity of petitioners in the crime charged.[17]

Further, petitioners assert that in a similar case filed against them, they were acquitted by the trial court of Imus,Cavite. As correctly observed by the OSG, there is no showing that the amount and quality of evidence in the presentcase and those in the case where petitioners were allegedly acquitted are the same. Indeed, if petitioners truly believedthat the prosecution evidence is deficient to establish their guilt, their defense could have earlier filed a demurrer toevidence in this case. But, they did not.[18]

Additionally, petitioners claim that the trial court and the Court of Appeals erred in disregarding their defense ofalibi.[19]However, we are in agreement with the OSG that the defense of alibi cannot prevail over the positiveidentification of the accused in this case.

Worth stressing, this Court has consistently ruled that the defense of alibi must be received with suspicion and caution,not only because it is inherently weak and unreliable, but also because it can be easily fabricated.[20]Alibi is a weakdefense that becomes even weaker in the face of the positive identification of the accused. An alibi cannot prevail overthe positive identification of the petitioners by credible witnesses who have no motive to testify falsely.[21]

In this case, petitioners17 defense of alibi rested solely upon their own self-serving testimonies. For their defense ofalibi to prosper, it should have been clearly and indisputably demonstrated by them that it was physically impossible forthem to have been at, or near, the scene of the crime at the time of its commission. But as the trial court correctlyruled, it was not impossible for the petitioners to be at the scene of the crime since petitioners17 place of detentionis less than an hour ride from the crime scene. Moreover, no dubious reason or improper motive was established torender the testimonies of Andrade, Tolentino and Aban false and unbelievable. Absent the most compelling reason, it ishighly inconceivable why Andrade, Tolentino and Aban would openly concoct a story that would send innocent men to

jail.[22]

Similarly, petitioners assert that the testimonies of Andrade and Tolentino are incredible and unsubstantiated. Theyquestion the failure of Tolentino to identify Punzalan in court, and stress that Andrade and Tolentino were not able toidentify all the accused. The OSG, on the other hand, maintains that the testimonies of Andrade and Tolentino arecredible since the facts testified to by them and Aban support each other.

We find petitioners17 allegations untenable. The testimonies given by Andrade, Tolentino and Aban corroborate eachother. Their testimonies agree on the essential facts and substantially corroborate a consistent and coherent whole. Thefailure of Tolentino to point to Punzalan in court does not dent her credibility as a witness. It must be noted that it took
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years before Tolentino was placed on the witness stand. As to the allegation that the test imony of Andrade andTolentino are incredible because they were not able to identify all the accused deserves scant consideration. During therobbery, they were told to bow their heads and hence, they were only able to raise their heads from time to time. It isbut logical that the witnesses would not be able to identify all of the accused.

Considering the testimonies of witnesses and the evidence presented by the parties, we are in agreement that the crimeof Highway Robbery/Brigandage was duly proven in this case. As defined under Section 2(e) of Presidential Decree No.532,[23]Highway Robbery/Brigandage is the seizure of any person for ransom, extortion or other unlawful purposes, orthe taking away of the property of another by means of violence against or intimidation of person or force upon thingsor other unlawful means, committed by any person on any Philippine highway. Also, as held in People v. Puno:[24]

In fine, the purpose of brigandage is, inter alia, indiscriminate highway robbery. If the purpose is only a particularrobbery, the crime is only robbery, or robbery in band if there are at least four armed participants17

Further, that Presidential Decree No. 532 punishes as highway robbery or brigandage only acts of robbery perpetratedby outlaws indiscriminately against any person or persons on Philippine highways as defined therein, and not acts ofrobbery committed against only a predetermined or particular victim[Emphasis supplied.]

The elements of the crime of Highway Robbery/Brigandage have been clearly established in this case. First, theprosecution evidence demonstrated with clarity that the petitioners17 group was organized for the purpose ofcommitting robbery in a highway. Next, there is no predetermined victim. The Kapalaran bus was chosenindiscriminately by the accused upon reaching their agreed destination -- Alabang, Muntinlupa.

All told, we rule that petitioners Rustico Abay, Jr. and Reynaldo Darilag are guilty beyond reasonable doubt of the crimeof Highway Robbery/Brigandage.

WHEREFORE, the Decision dated October 27, 2003 and the Resolution dated October 14, 2004 of the Court of Appealsin CA G.R. CR No. 25212, affirming the Decision dated November 29, 2000 of the Regional Trial Court of San Pedro,Laguna, Branch 31 in Criminal Case No. 9045-B, are hereby AFFIRMED.

No pronouncement as to costs.

--

PEOPLE OF THE PHILIPPINES vs. PEDRO CEDENIO Y RASONABLE, FELIPE ANTIPOLO Y MISA, and JURITO AMARGA YBAHI-AN

BELLOSILLO, J.:

The silence of the slumbering night was suddenly shattered by wailing cries for help. A sheet of fire raged, its crimsonbrightness overwhelming the velvet darkness enshrouding the sleepy barangay as it enveloped the lair of a mandadaut,1the flames only fading away with the first blush of dawn. As the smoke thinned and the ashes settled, the debrisyielded five (5) fatalities among them a 22-day old female infant. Unlike the other victims, she did not sustain any stabor hack wound. She could have died of suffocation if not of burning.

Bonifacio Palomas recounts that on 26 November 1986, at about ten-thirty in the evening, he was roused from his sleepby bangs and slams and what sounded like womens desperate cries for help coming from the direction of a neighborshouse some thirty (30) meters away. It was Hilario Dorios house on fire. Peeping through his window, Palomas sawaround seven (7) persons, among them appellants Pedro Cedenio, Jurito Amarga and Felipe Antipolo, emerge from thehouse of Dorio that was afire. The blaze was so bright he was able to recognize them. They were wielding unsheathedbolos. Afraid, Palomas remained home. The following morning, he narrated to Romeo, son of Hilario Dorio, what he

witnessed the night before. Then he went with the younger Dorio to the rubble and saw the charred bodies of hisfather, Hilario Dorio, his mother Flora, his sister Maria, his niece Dioscora, and his maternal grandmother NicanoraTabanao, said to be a family of sorcerers in the village.2

Policarpio Apostadero was resting at around ten-thirty that fateful evening when he heard dogs barking. Thinking that acarabao may have gone astray, he went out of his house and headed for the cornfield. On his way, he noticed somethirty (30) meters away that the house of Hilario Dorio was on fire. From where he stood, he also saw people runningout of the burning house. As the fierce fire illumed the surroundings, he recognized three (3) of them as his neighborsPedro Cedenio, Jurito Amarga and Felipe Antipolo. When they drew nearer, he saw them holding bolos stained withblood so he retreated home. The next morning, he went to the burned house, joined the people already milling around,and saw the seared bodies of the five (5) members of the Dorio household.3
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Albino Calunod, Sr., Barangay Captain of Gandingan, Pangantucan, Bukidnon, also narrated that on 27 November 1986,at around seven oclock in the morning, he was informed by Cristituto Gajo that the Dorio residence was gutted by firethe night before and that five (5) members of the Dorio family then occupying the house were burned to death. He thusproceeded to the scene and found the house razed to the ground. The five (5) bodies retrieved from the site were thoseof Hilario Dorio with wounds on the head and chest, Flora Dorio with a wound on the leg and head almost severed;Maria Dorio with wounds in the neck and left nipple; Nicanora Tabanao with a wound in the stomach; and, infantDioscora Dorio with no wounds at all but charred to the bone. 4

Perfecto Antifuesto implicated Pedro Cedenio to the heinous crime. Antifuesto said that on 26 November 1986, ataround seven oclock in the evening, he was awakened by Cedenio who borrowed his bolo. At around three oclock thefollowing morning, Pito Panla-an woke him up to return the bolo earlier borrowed by Cedenio. It was placed in itsscabbard and left leaning against the wall below the window. When Panla-an left, Antifuesto got his bolo and foundbloodstains on its handle. Upon unsheathing it, he discovered fresh blood on its blade. Thirty (30) minutes later,Cedenio arrived and appeased him, ". . . do not worry, if this incident reaches the court I will answer (for) everything."5

Although it appears that around nine (9) persons were involved in the commission of the felony,6only three (3) wereconvicted by the trial court.7Thus on 16 March 1990, it found Pedro Cedenio, Felipe Antipolo and Jurito Amarga guiltyof "Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No. 1613 (amending thelaw on Arson)" 8and sentenced them to reclusion perpetua. On 4 April 1990, they filed their notice of appeal.

Appellants now argue that there is no direct and positive evidence showing that they killed the victims and burned theirhouse. The fact that prosecution witnesses saw them coming out of the burning house cannot by itself sustain theconviction as this lone circumstance is capable of several interpretations. If witnesses indeed saw them there, that must

be the time when they (appellants) were trying to save the burning house and its occupants. They likewise contend thatthe testimonies of the prosecution witnesses are contrary to human experience and should not inspire credence. Thusthe claim of witness Antifuesto that his bolo was borrowed and later returned with bloodstains is highly improbable forit is unnatural for criminals to openly bare the instruments used in perpetrating a crime.

Finally, appellants maintain that their denial and alibi should prevail over the insufficient evidence of the prosecution. Inasserting their innocence, they allege that they were in the area because of their moral obligation to save life andproperty. Hence, appellant Cedenio claimed that he cut up banana trunks and hurled them into the fire while appellantAntipolo gathered soil and threw it into the blaze. While witnesses might have indeed seen them (appellants) comingout of the burning house, that was probably after they (appellants) checked on and tried to save the occupants of thehouse.

We are far from persuaded. While we cannot affirm the findings of the trial court that accused-appellants are guilty of"Arson with Multiple Murder as defined and penalized under Section 5 of Presidential Decree No. 1613" as there is nosuch offense, we nevertheless find them guilty of as many crimes as are alleged in the Information and proven by the

evidence.

It is settled that there is no complex crime of arson with homicide. The late Mr. Chief Justice Ramon C. Aquino citesGroizard

. . . when fire is used with the intent to kill a particular person who may be in a house and thatobjective is attained by burning the house, the crime is murder only. When the Penal Code declaresthat killing committed by means of fire is murder, it intends that fire should be purposely adopted asa means to that end. There can be no murder without a design to take life. In other words, if themain object of the offender is to kill by means of fire, the offense is murder. But if the main objectiveis the burning of the building, the resulting homicide may be absorbed by the crime of arson.9

. . . in the classification of crimes committed by fire, attention must be given to the intention of theauthor. When fire is used with intent to kill a . . . person who may be in shelter, and that objective issecured, the crime is . . . murder. Murder or homicide in a juridical sense would exist if the killing

were the objective of the malefactor and the burning of the building was resorted only as the meansof accomplishing his purpose. The rule is otherwise when arson is itself the end and death is a mereconsequence. The crime in such a case would be arson only, absorbing the homicide. 10

Except for the imposable penalty, the rule has not changed. Accordingly, if death results by reason or on the occasionof arson, the crime is simply arson although the imposable penalty as provided in Sec. 5 of P.D. No. 1613, whichexpressly repealed Arts. 320 to 326-B of The Revised Penal Code, is now reclusion perpetua to death. If the objective ofthe offender is to kill and arson is resorted to as the means to accomplish the crime, the offender can be charged withmurder only. But if the objective is to killand in fact the offender has already done soand arson is resorted to as ameans to cover up the killing, the offender may be convicted of two separate crimes of either homicide or murder, andarson.


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Consequently, in (People v. Paterno)11where the defendants killed a Japanese spy and his wife, and thereafter set thevictims house afire with theirlifeless bodies inside and their three-day old infant who perished in the fire, we found theaccused guilty of murder for the killing and of arson for burning the house with the resulting death to the infant. In(People v. Basay) 12we said that where the house was burned to conceal the stabbing and hacking, separate crimes ofmurder and arson were committed.

The Information in this case however, although erroneously charging the crime of "Arson with Multiple Murder," clearlycharges appellants with six (6) distinct criminal acts. It accuses them of "wilfully, unlawfully and criminally attack(ing),assault(ing) and stab(bing) Hilario G. Dorio, Nicanora G. Tabanao, Maria T. Dorio, Dioscora T. Dorio and Flora T. Dorio,inflicting on their persons multiple mortal wounds . . . (and) set(ting) on fire and burn(ing) the house of the victims . . ."13Since appellants failed to move to quash the information on the ground of multiplicity of charges or object thereto atany other time, the defect has been waived, and thus the trial court may validly render judgment against them for asmany crimes as were alleged.14In order to sustain a conviction for as many offenses as are alleged, it is elementary thatall the allegations must be proven with moral certainty. Hence, considering that the Information alleges that appellantsburned the house of the victims and killed them with treachery and (evident) premeditation, both the arson and themultiple murder must be proven beyond reasonable doubt.

We accord credence to the testimonies of the prosecution witnesses. We see no reason to depart from the conclusion ofthe trial court that it was "morally convinced that the three accused are all guilty . . . . 15The court a quo had theopportunity to observe the witnesses thus its findings are given great weight and respect.

Palomas, Apostadero and Antifuesto are disinterested witnesses and there is not a shiver of evidence to indicate thatthey are suborned witnesses. In fact, the records show that witness Antifuesto even lent his bolo to appellant Cedenio

so that the former could not have had a grudge against the latter, otherwise, he would not have lent his bolo. 16Absentthe most compelling reason or motive, it is inconceivable why the prosecution witnesses would openly and publicly lieor concoct a story which would send three innocent men to jail. 17Where the defense failed to show any evil or impropermotive on the part of prosecution witnesses, the presumption is that their testimonies are true and thus entitled to fullfaith and credence. 18

While the prosecution witnesses did not see the actual killing of the victims and the burning of the house, we haverepeatedly ruled that guilt may be established through circumstantial evidence provided that (1) there is more than onecircumstance; (2) the facts from which the inferences are derived are proven; and, (3) the combination of all thecircumstances is such as to produce conviction beyond reasonable doubt. 19Thus in (People v. Adriano) 20and (People v.Galendez) 21we ruled that there can be a conviction based on circumstantial evidence when the circumstances provenform an unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused as the perpetrator ofthe crime.

This is another lucid illustration of a case where a conviction can be sustained on the basis of circumstantial evidence.

First, appellant Cedenio borrowed the bolo of witness Antifuesto at around seven oclock in the evening. Second,Cedenio together with appellants Antipolo and Amarga were positively identified as brandishing their bloodstainedbolos while rushing out of the victims burning house around ten-thirty that same evening. Third, Antifuestos bolo wasreturned to him at around three oclock the following morning after appellants were seen outside the victims burninghouse. Fourth, the bolo had bloodstains when it was returned. Fifth, Cedenio called on Antifuesto at three-thirty thatsame morning to appease the latter and assure him not to worry because " . . . if this incident reaches the court, I willanswer (for)everything." 22Sixth, when retrieved from the burned house, the bodies of the victims bore stab and hack wounds. Forsure, these circumstances "form an unbroken chain which leads to a fair and reasonable conclusion pinpointing theaccused as the perpetrators of the crime." 23

We disagree with appellants submission that the testimony of prosecution witness Antifuesto is not in accord withhuman nature. On the contrary, his testimony that the bolo was returned to him with bloodstains is worthy of belief.Appellants never thought that Antifuesto would testify against them. Thus, appellant Cedenio borrowed Antifuestosbolo and after its return even mollified him.

In fine, we believe that when appellants were seen in the vicinity of the burning house, they were not there to save livesand property but rather to escape from the locus criminis and avoid being made to answer for the consequences oftheir wicked act. In other words, they were not there to save the lives and valuables of the victims but to save their own.We are convinced that appellants conspired to inflict fatal blows on the victims which cost their lives and thereafter settheir house on fire to conceal the dastardly deed.24Conspiracy, as we said, may be inferred from the acts of the accusedwhen such acts point to a joint purpose or design. 25

From the evidence adduced, it is evident that after the victims were hacked and stabbed to death, appellants set thehouse afire to hide their gruesome act. This is the only logical conclusion for the burning of the house. For, appellantsand some six (6) others, all bolo-wielding, have already inflicted fatal wounds on the victims, save for the 22-day old


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infant. If their objective was merely to kill the victims then there would be no reason for them to burn the victimsabode. On the other hand, if their objective was merely arson, they would not have attacked the victims with theirbolos.

We however cannot consider the qualifying circumstance of treachery. For treachery to be appreciated, there must beproof that at the time of the attack, the victims were not in a position to defend themselves and that the offendersconsciously and deliberately adopted particular means, method or form of attack which they employed to ensure theaccomplishment of their purpose with impunity. 26There is no proof of such fact in the instant case; neither is there anytestimony on how the attack was actually carried out. Where no particulars are known as to the manner in which theaggression was made or how the act which resulted in the death of the victims began and developed, it can in no waybe established from mere suppositions that the killing was perpetrated by treachery. 27For, the rule is settled thattreachery cannot be presumed; it must be proved by clear and convincing evidence as conclusively as the killing itself. 28Hence, when the manner of the attack is not proven, the accused should be given the benefit of the doubt and thecrime should be considered homicide only, 29absent any other circumstance which would qualify the killing.

Nevertheless, we qualify the killing to murder on account of evident premeditation. For evident premeditation to beconsidered, it must affirmatively appear from the overt acts of the accused that they definitely resolved to commit theoffense; that they coolly and dispassionately reflected on the means of carrying their resolution into execution and onthe consequences of their criminal design; and, that an appreciable length of time elapsed as to expect an arousedconscience to otherwise relent and desist from the accomplishment of the intended crime. 30These, the prosecutionestablished.

The fact alone that appellants burned the victims house after inflicting fatal wounds on them already suggests that

they clung to their determination to commit the crime. The circumstance that appellant Cedenio borrowed the bolo ofwitness Antifuesto and later placated the latter when his bolo was returned to him already bloodstained stronglyindicates that appellants pondered on the means of executing the crime and on the consequences of their criminaldesign. Since appellant Cedenio borrowed the bolo at around seven oclock in the evening and the crime was committedaround ten oclock that same evening, certainly, there was sufficient interval of time within which to reflect upon theconsequences of the crime they planned to commit.

The death certificates of victims Hilario Dorio, Flora Dorio, Maria Dorio and Nicanora Tabanao state as cause of death"incised wounds" which could definitely be caused by a bolo, while the infants death was due to "burns." Hence,appellants should be held responsible only for the murder of the four (4) victims who sustained fatal hack and stabwounds. They cannot be convicted of homicide for the death of the infant who died presumably of suffocation orincineration but of arson resulting in death, as defined in Sec. 5 of P.D. No. 1613.

Considering that the prosecution was able to show with moral certainty that the killing of the four (4) victims wasattended with evident premeditation and the burning was done to disguise the murder, appellants are guilty of arson

and four (4) counts of murder, each count aggravated by dwelling which, while not alleged in the Information, wassufficiently proven during the trial.

The penalty prescribed by law for murder if committed with evident premeditation is reclusion temporal in its maximumperiod to death, 31while for arson where death results, it is reclusion perpetua to death. 32Since the murder wasattended by the aggravating circumstance of dwelling, with no mitigating circumstance, the imposable penalty againstappellants is death for each of the four (4) counts of murder they committed. However, considering that the deathpenalty was prescribed at the time appellants committed the crime, their sentence should be reduced to four (4) termsof reclusion perpetua. For the arson where death resulted, appellants should be sentenced to a separate term ofreclusion perpetua.

Furthermore, it appearing from the records that the heirs of the deceased did not waive nor reserve their right toinstitute a civil action, nor did they institute a civil action prior to the criminal action, the civil action prior to thecriminal action, the civil action for recovery of civil liability is impliedly instituted with the instant criminal action. 33Consistently therefore with prevailing jurisprudence, appellants are jointly and severally liable to the heirs of the victims

in the amount of P50,000.00 for every death even without proof of pecuniary loss.

WHEREFORE, the Decision of the trial court is MODIFIED. Appellants PEDRO CEDENIO, FELIPE ANTIPOLO and JURITOAMARGA are found guilty beyond reasonable doubt of four (4) counts of murder and another crime of arson.Consequently, appellants are sentenced each to four (4) terms of reclusion perpetua for the murder of Hilario Dorio,Flora Dorio, Maria Dorio and Nicanora Tabanao, and another reclusion perpetua for arson for the burning of the housewhich resulted in the death of infant Dioscora Dorio, to be served successively in accordance with Art. 70 of TheRevised Penal Code. In addition, appellants are jointly and severally held liable to the heirs in the amount of P50,000.00for the death of each victim.

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THE UNITED STATES vs. SIMEON AGRAVANTE, ET AL.

SIMEON AGRAVANTE, appellant.

TORRES, J.:

At about 10 p. m. on the 13th of January, 1906, Marcelino Acupan and Apolinario Camacho,members of the Constabulary detachment stationed at Bacolod, the capital of Occidental Negros,

tried to enter the Rizal Theater, where an acrobatic performance was going on, without the

necessary admission ticket; as Vicente Ibaez, the doorkeeper of the theater, refused to let themin, Camacho pulled him by the hand and Acupan struck him a blow and invited him to come out

to the street where he would break his bones.

On account of the scandal created, the chief of the municipal police, Fortunato Vadlit, who was

standing by, approached to inquire what had taken place; at this moment Simeon Agravante,

another member of the Constabulary, carrying a gun, appeared and wanted to take Ibaez to the

cuartel, but he did not succeed in doing so because the doorkeeper stated that the performance

was not yet over; Agravante then went away, but shortly thereafter another Constabulary private,also carrying a gun, made his appearance and compelled Ibaez to follow him to the cuartel. At

the request of Ibaez, Vadlit, the chief of police accompanied him, and when they reached thecuartelAgravante asked Ibaez what complaint he had to make, to which the latter replied that

Acupan had struck him with his fist; Agravante then maltreated Ibaez and ordered another

private to take the man away and lock him up; Ibaez and Vadlit objected to the order becausethere was no reason therefor, thereupon Corporal Agravante ordered that the chief of police be

locked up also; the order was obeyed by some of the soldiers who pushed Ibaez and Vadlit in to

the jail, where they remained for about an hour until sergeant Leandro Garguena was informed of

the occurrence, whereupon the latter ordered their release. Ibaez and Vadlit were subsequentlytaken to the house of Lieutenant Caswell, but the latter, being ill, was unable to investigate the

matter. On that night the chief of police, Vadlit, was not in uniform.

A complaint was filed on the 14th of March 1906, charging Sixto Chaves, Simeon Agravante,

Apolinario Camacho, and Marcelino Acupan with the crimes of illegal detention, lesiones, and

attempt against an agent of the authorities. The corresponding proceedings were instituted, andthe judge rendered judgment on the 3rd of May, 1906, sentencing Simeon Agravante, for the

crime of arbitrary detention, to pay a fine of 500 pesetas and one-fourth of the costs, and to suffer

subsidiary imprisonment in case of insolvency in the payment of the fine; Marcelino Acupan wassentenced for maltrato de obrato the penalty of five days of arresto menorand one-fourth of the

costs; Sixto Chaves and Apolinario Camacho were acquitted with the remainder of the costs de

oficio. From the above judgment the accused Agravante appealed.

From the evidence adduced at the trial of this case it appears that the crime of arbitrary detention,

included in case No. 1 of article 200 of the Penal Code, was committed, inasmuch as, from the

facts stated, it appears that on the night of January 13, 1906, Vicente Ibaez, doorkeeper at theRizal Circus, situated at the capital of Occidental Negros, was maltreated by Marcelino Acupan,

a constabulary soldier, for which reason, when Ibaez was conducted to the cuartelby another,

Fortunato Vadlit, the chief of the municipal police accompanied him to the door of the cuartelwhen the latter, together with Ibaez, was locked up in the jail by the accused, Simeon


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Agravante, a corporal of Constabulary; the detention lasted for about an hour. They were then

released by sergeant Leandro Garguea, when he became aware that there was no legal reason

for the detention, because the chief of police, Vadlit, had taken no part in the quarrel at the gatewhen Ibaez was maltreated by Acupan; he merely approached the place of the incident in order

to find out what had occurred, and, at the request of Ibaez, accompanied him to the cuartelfor

the purpose of assisting in the investigation of the matter.

The accused, Agravante, the only one who appealed from the judgment of the court below,

pleaded not guilty, but confessed to having detained both Ibaez and the chief of police,Fortunato Vadlit, because the latter was drunk and wanted to force an entrance to the cuartelto

make an investigation. However, in view of the preponderance of evidence offered by the

prosecution in favor of the statements made by Vadlit, the allegations of the accused can not be

taken as proven; rather, to the contrary. It has been shown that by reason of the remarks made byVadlit to Agravante when Ibaez was detained, Vadlit was arrested; therefore, it is

unquestionable that the conduct of the accused was arbitrary, and illegal in ordering the detention

of the chief of police, because there was no legal reason for it.

In the commission of the crime of arbitrary detention no mitigating or aggravating circumstance

was present, and in view of the fact that the offended parties only remained about an hour inconfinement, the penalty to be imposed is that prescribed in case No. 1 of said article 200, a fine,

in the application of which the provisions of article 83 of the Penal Code should be taken into

account. Therefore, the judgment appealed from should be affirmed as to the appellant, even if

circumstance No. 8 of Article 9, referred to in the decision of the court below, is not considered,inasmuch as the fact mentioned therein, that Corporal Agravante thought he had authority to

detain the chief of the municipal police for trying to investigate what had taken place, does not

constitute the circumstance No. 8 of article 9 of the Penal Code alluded to.

It is of record that, on the night in question, Fortunato Vadlit was not in uniform of chief ofpolice; hence he was not qualified to exercise his office and make himself known as such chiefof police, and for this reason the crime of attempt against an agent of authorities could not have

been committed. It should further be considered that without an order from competent authority

he could not have made an investigation in the cuartelof Constabulary; he should have reportedthe matter to the municipal president or to the commanding officer, and then what afterwards

took place might have been avoided.

For the reasons above set forth it is our opinion that the judgment appealed from, whereby

Simeon Agravante is sentenced to pay a fine of 500 pesetas, and to suffer subsidiary

imprisonment in case of insolvency, with one-fourth of the costs, should be affirmed, all costs as

to this second instance to be also charged against him. So ordered.

--

THE UNITED STATES vs. HILARIO BRAGANZA AND MARTIN SALIBIO

WILLARD, J.:


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We take the same view of this case as to the guilt of the defendants as that taken by the Attorney-

General. He says in his brief:

Article 200 of the Penal Code reads:

"The public official who, unless it be by reason of a crime, should detain a personwithout being authorized to do so by a law, or by regulations of a general

character in force in the Philippines, shall incur the penalty of a fine of from 325

to 3,250 pesetas if the detention should not have exceeded three (3) days; . . . ."

At the time when the crime herein was committed the accused were municipal officials,Hilario Braganza being then a councilor of the municipality of Sagay and Martin Salibio

a lieutenant of the barrio of Vito in said municipality; therefore, they were public officers.

. . .

There is no doubt as to the accused having detained Father Feliciano Gomez, inasmuch

as, according to the evidence, they themselves seized him within the church and took himout of it, telling him that he was under arrest; they made him pass through the door of thevestry and afterwards took him to the municipal building and there told him that he was

under arrest ... . The accused detained Father Gomez, not by reason of a crime but

arbitrarily. He had committed no crime, rather on the contrary, he was the victim ofcoercion and other outrages. As a priest of the Roman Church, and the question hereinreferring also to a Roman church which he is alleged to be in possession of, he went there

to say mass, but a group of Aglipayano women violently prevented him from carrying out

his purpose. No law or regulation of a general character in force authorizes the accused tocommit the act which they committed . . . . .

The judgment of the court below is affirmed, without taking into consideration, however article11 of the Penal Code as an extenuating circumstance. So ordered.

--

MELENCIO SAYO and JOAQUIN MOSTERO vs. THE CHIEF OF POLICE and THE

OFFICER IN CHARGE OF MUNICIPAL JAIL, BOTH OF CITY OF MANILA

FERIA, J.:

Upon complaint of Bernardino Malinao, charging the petitioners with having committed the

crime of robbery, Benjamin Dumlao, a policeman of the City of Manila, arrested the petitioners

on April 2, 1948, and presented a complaint against them with the fiscal's office of Manila. UntilApril 7, 1948, when the petition for habeas corpusfiled with this Court was heard, the

petitioners were still detained or under arrest, and the city fiscal had not yet released or filed

against them an information with the proper courts justice.

This case has not been decided before this time because there was not a sufficient number of

Justices to form a quorum in Manila, And it had to be transferred to the Supreme Court acting indivision here in Baguio for deliberation and decision. We have not until now an official


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information as to the action taken by the office of the city fiscal on the complaint filed by the

Dumlao against the petitioners. But whatever night have been the action taken by said office, if

there was any, we have to decide this case in order to lay down a ruling on the question involvedherein for the information and guidance in the future of the officers concerned.

The principal question to be determined in the present case in order to decide whether or not thepetitioners are being illegally restrained of their liberty, is the following: Is the city fiscal of

manila ajudicial authority within the meaning of the provisions of article 125 of the Revised

Penal Code?

Article 125 of the Revised Penal Code provides that "the penalties provided in the next

proceeding article shall be imposed upon the public officer or employee who shall detain anyperson for some legal ground and shall fail to deliver such person to the properjudicial

authorities within the period of six hours."

Taking into consideration the history of the provisions of the above quoted article, the precept of

our Constitution guaranteeing individual liberty, and the provisions of Rules of Court regardingarrest and habeas corpus, we are of the opinion that the words "judicial authority", as used in

said article, mean the courts of justices or judges of said courts vested with judicial power toorder the temporary detention or confinement of a person charged with having committed a

public offense, that is, "the Supreme Court and such inferior courts as may be established by

law". (Section 1, Article VIII of the Constitution.)

Article 125 of the Revised Penal Code was substantially taken from article 202 of the old Penal

Code formerly in force of these Islands, which penalized a public officer other than a judicialofficer who, without warrant, "shall arrest a person upon a charge of crime and shall fail to

deliver such person to the judicial authority within twenty four hours after his arrest." There was

no doubt that a judicial authority therein referred to was the judge of a court of justiceempowered by law, after a proper investigation, to order the temporary commitment or detentionof the person arrested; and not the city fiscals or any other officers, who are not authorized by

law to do so. Because article 204, which complements said section 202, of the same Code

provided that "the penalty of suspension in its minimum and medium degrees shall be imposedupon the following persons: 1. Any judicial officer who, within the period prescribed by the

provisions of the law of criminal procedure in force, shall fail to release any prisoner under arrest

or to commit such prisoner formally by written order containing a statement of the grounds uponwhich the same is based."

Although the above quoted provision of article 204 of the old Penal Code has not beenincorporated in the Revised Penal Code the import of said words judicial authority or officer can

not be construed as having been modified by the mere omission of said provision in the Revised

Penal Code.

Besides, section 1 (3), Article III, of our Constitution provides that "the right of the people to be

secure in their persons...against unreasonable seizure shall not be violated, and no warrant [ofarrest, detention or confinement] shall issue but upon probable cause, to be determined by the

judge after the examination under oath or affirmation of the complaint and the witness he may


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produce." Under this constitutional precept no person may be deprived of his liberty, except by

warrant of arrest or commitment issued upon probable cause by a judge after examination of the

complainant and his witness. And the judicial authority to whom the person arrested by a publicofficers must be surrendered can not be any other but court or judge who alone is authorized to

issue a warrant of commitment or provisional detention of the person arrested pending the trial of

the case against the latter. Without such warrant of commitment, the detention of the personarrested for than six hours would be illegal and in violation of our Constitution.

Our conclusion is confirmed by section 17, Rule 109 of the Rules of court, which, referring tothe duty of an officer after arrest without warrant, provides that "a person making arrest for legal

ground shall, without unnecessary delay, and within the time prescribed in the Revised Penal

Code, take the person arrested to the proper court orjudge for such action for they may deem

proper to take;" and by section 11 of Rule 108, which reads that "after the arrest by the defendantand his delivery to the Court, he shall be informed of the complaint or information filed against

him. He shall also informed of the substance of the testimony and evidence presented against

him, and, if he desires to testify or to present witnesses or evidence in his favor, he may be

allowed to do so. The testimony of the witnesses need not be reduced to writing but that of thedefendant shall be taken in writing and subscribed by him.

And it is further corroborated by the provisions of section 1 and 4, Rule 102 of the Rules of

Court. According to the provision of said section, "a writ of habeas corpus shall extend any

person to all cases of illegal confinement or detention by which any person is illegally deprived

of his liberty"; and "if it appears that the person alleged to be restrained of his liberty is in thecustody of an officerunder process issuedby a court or judge, or by virtue of a judgement or

order of a court of record, and that the court or judge had jurisdiction to issue the process, render

judgment, or make the order, the writ shall not be allowed. "Which a contrario sensumeans that,otherwise, the writ shall be allowed and the person detained shall be released.

The judicial authority mentioned in section 125 of the Revised Penal Code can not be construedto include the fiscal of the City of Manila or any other city, because they cannot issue a warrant

of arrest or of commitment or temporary confinement of a person surrendered to legalize the

detention of a person arrested without warrant. (Section 7, Rule 108; Hashim vs. Boncan, 40 Off.Gaz. 13th Supp., p.13; Lino vs. Fugoso, L-1159, promulgated on January 30, 1947, 43 Off. Gaz.,

1214). The investigation which the city of fiscal of Manila makes is not the preliminary

investigation proper provided for in section 11, Rule 108, above quoted, to which all person

charged with offenses cognizable by the Court of First Instance in provinces are entitled, but it isa mere investigation made by the city fiscal for the purpose of filing the corresponding

information against the defendant with the proper municipal court or Court of First Instance of

Manila if the result of the investigation so warrants, in order to obtain or secure from the court a

warrant of arrest of the defendant. It is provided by a law as a substitute, in a certain sense, of thepreliminary investigation proper to avoid or prevent a hasty or malicious prosecution, since

defendant charged with offenses triable by the courts in the City of Manila are not entitled to a

proper preliminary investigation.

The only executive officers authorized by law to make a proper preliminary investigation in case

of temporary absence of both the justice of the peace and the auxiliary justice of the peace from


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the municipality, town or place, are the municipal mayors who are empowered in such case to

issue a warrant of arrest of the caused. (Section 3, Rule 108, in connection with section 6, Rule

108, and section 2 of Rule 109.) The preliminary investigation which a city fiscal may conductunder section 2, Rule 108, is the investigation referred to in the proceeding paragraph.

Under the law, a complaint charging a person with the commission of an offense cognizable bythe courts of Manila is not filed with municipal court or the Court of First Instance of Manila,

because as above stated, the latter do not make or conduct a preliminary investigation proper.

The complaint must be made or filed with the city fiscal of Manila who, personally or throughone of his assistants, makes the investigation, not for the purpose of ordering the arrest of the

accused, but of filing with the proper court the necessary information against the accused if the

result of the investigation so warrants, and obtaining from the court a warrant of arrest or

commitment of the accused.

When a person is arrested without warrant in cases permitted bylaw, the officer or person making

the arrest should, as abovestated, without unnecessary delay take or surrender the person

arrested, within the period of time prescribed in the Revised Penal Code, to the court or judgehaving jurisdiction to try or make a preliminary investigation of the offense (section 17, Rule

109); and the court or judge shall try and decide the case if the court has original jurisdictionover the offense charged, or make the preliminary investigation if it is a justice of the peace court

having no original jurisdiction, and then transfer the case to the proper Court of First Instance in

accordance with the provisions of section 13, Rule 108.

In the City of Manila, where complaints are not filed directly with the municipal court or the

Court of First Instance, the officer or person making the arrest without warrant shall surrender or

take the person arrested to the city fiscal, and the latter shall make the investigation abovementioned and file, if proper, the corresponding information within the time prescribed by

section 125 of the Revised Penal Code, so that the court may issue a warrant of commitment forthe temporary detention of the accused. And the city fiscal or his assistants shall make theinvestigation forthwith, unless it is materially impossible for them to do so, because the

testimony of the person or officer making the arrest without warrant is in such cases ready and

available, and shall, immediately after the investigation, either release the person arrested or filethe corresponding information. If the city fiscal has any doubt as to the probability of the

defendant having committed the offense charged, or is not ready to file the information on the

strength of the testimony or evidence presented, he should release and not detain the person

arrested for a longer period than that prescribed in the Penal Code, without prejudice to makingor continuing the investigation and filing afterwards the proper information against him with the

court, in order to obtain or secure a warrant of his arrest. Of course, for the purpose of

determining the criminal liability of an officer detaining a person for more than six hours

prescribed by the Revised Penal Code, the means of communication as well as the hour ofarrested and other circumstances, such as the time of surrender and the material possibility for

the fiscal to make the investigation and file in time the necessary information, must be taken into

consideration.

To consider the city fiscal as the judicial authority referred to in article 125 of the Revised Penal

Code, would be to authorize the detention of a person arrested without warrant for a period


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longer than that permitted by law without any process issued by a court of competent

jurisdiction. The city fiscal, may not, after due investigation, find sufficient ground for filing an

information or prosecuting the person arrested and release him, after the latter had been illegallydetained for days or weeks without any process issued by a court or judge.

A peace officer has no power or authority to arrest a person without a warrant upon complaint ofthe offended party or any other person, except in those cases expressly authorized by law. What

he or the complainant may do in such case is to file a complaint with the city fiscal of Manila, or

directly with the justice of the peace courts in municipalities and other political subdivisions. Ifthe City Fiscal has no authority, and he has not, to order the arrest even if he finds, after due

investigation, that there is a probability that a crime has been committed and the accused is guilty

thereof, a fortiori a police officer has no authority to arrest and detain a person charged with an

offense upon complaint of the offended party or other persons even though, after investigation,he becomes convinced that the accused is guilty of the offense charged.

In view of all the foregoing, without making any pronouncement as to the responsibility of the

officers who intervened in the detention of the petitioners, for the policeman Dumlao may haveacted in good faith, in the absence of a clear cut ruling on the matter in believing that he had

complied with the mandate of article 125 by delivering the petitioners within six hours to theoffice of the city fiscal, and the latter might have ignored the fact that the petitioners were being

actually detained when the said policeman filed a complaint against them with the city fiscal, we

hold that the petitioners are being illegally restrained of their liberty, and their release is hereby

ordered unless they are now detained by virtue of a process issued by a competent court ofjustice. So ordered.

--

LEVISTE vs. ALAMEDA

D E C I S I O N

CARPIO MORALES, J.:

Jose Antonio C. Leviste (petitioner) assails via the present petition for review filed on May 30, 2008 the August30, 2007 Decision[1] and the April 18, 2008 Resolution[2] of the Court of Appeals in CA-G.R. SP No. 97761 thataffirmed the trial courts Orders of January 24, 31, February 7, 8, all in 2007, and denied the motion forreconsideration, respectively.

Petitioner was, by Information[3] of January 16, 2007, charged with homicide for the death of Rafael de las Alason January 12, 2007 before the Regional Trial Court (RTC) of Makati City. Branch 150 to which the case was raffled,presided by Judge Elmo Alameda, forthwith issued a commitment order[4] against petitioner who was placed underpolice custody while confined at the Makati Medical Center.[5]

After petitioner posted a P40,000 cash bond which the trial court approved,[6] he was released from detention,and his arraignment was set on January 24, 2007.

The private complainants-heirs of De las Alas filed, with the conformity of the public prosecutor, an UrgentOmnibus Motion[7] praying, inter alia, for the deferment of the proceedings to allow the public prosecutor to re-examine the evidence on record or to conduct a reinvestigation to determine the proper offense.

The RTC thereafter issued the (1) Order of January 24, 2007[8] deferring petitioners arraignment andallowing the prosecution to conduct a reinvestigation to determine the proper offense and submit a recommendationwithin 30 days from its inception, inter alia; and (2) Order of January 31, 2007[9] denying reconsideration of the firstorder. Petitioner assailed these orders via certiorari and prohibition before the Court of Appeals.


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Meantime, petitioner filed an Urgent Ex-Parte Manifestation and Motion before the trial court to defer acting on thepublic prosecutors recommendation on the proper offense until after the appellate court resolves his application forinjunctive reliefs, or alternatively, to grant him time to comment on the prosecutors recommendation and thereafterset a hearing for the judicial determination of probable cause.[10] Petitioner also separately moved for the inhibition of

Judge Alameda with prayer to defer action on the admission of the Amended Information.[11]

The trial court nonetheless issued the other assailed orders, viz: (1) Order of February 7, 2007[12] that admitted theAmended Information[13] for murder and directed the issuance of a warrant of arrest; and (2) Order of February 8,

2007[14] which set the arraignment on February 13, 2007. Petitioner questioned these two orders via supplementalpetition before the appellate court.

The appellate court dismissed petitioners petition, hence, his present petition, arguing that:

PRIVATE RESPONDENT DID NOT HAVE THE RIGHT TO CAUSE THE REINVESTIGATION OF THE CRIMINAL CASE BELOWWHEN THE CRIMINAL INFORMATION HAD ALREADY BEEN FILED WITH THE LOWER COURT. HENCE, THE COURT OFAPPEALS COMMITTED A GRAVE ERROR IN FINDING THAT RESPONDENT JUDGE DID NOT ACT WITH GRAVE ABUSE OFDISCRETION IN GRANTING SUCH REINVESTIGATION DESPITE HAVING NO BASIS IN THE RULES OF COURT[;]

RESPONDENT JUDGE ACTED WITH GRAVE ABUSE OF DISCRETION IN ADMITTING STATE PROSECUTOR VELASCOSAMENDED INFORMATION, ISSUING A WARRANT OF ARREST, AND SETTING THE CASE BELOW FOR ARRAIGNMENT,CONSIDERING THAT THE VALIDITY AND LEGALITY OF HIS ORDERS DATED 24 AND 31 JANUARY 2007, WHICH LED TOTHE QUESTIONABLE REINVESTIGATION AND ILLEGAL AMENDED INFORMATION[,] ARE YET TO BE RESOLVED BY THISHONORABLE COURT (sic); [AND]

CONSIDERING THAT PROSECUTOR VELASCOS FINDINGS IN HIS RESOLUTION DATED 2 FEBRUARY 2007 ARE BLATANTLYBASED ON MERE SPECULATIONS AND CONJECTURES, WITHOUT ANY SUBSTANTIAL OR MATERIAL NEW EVIDENCE BEINGADDUCED DURING THE REINVESTIGATION, RESPONDENT JUDGE SHOULD HAVE AT LEAST ALLOWED PETITIONERSMOTION FOR A HEARING FOR JUDICIAL DETERMINATION OF PROBABLE CAUSE.[15] (emphasis in the original omitted)

Records show that the arraignment scheduled on March 21, 2007 pushed through during which petitionerrefused to plead, drawing the trial court to enter a plea of not guilty for him.

Prior thereto or on February 23, 2007, petitioner filed an Urgent Application for Admission to Bail Ex AbundantiCautela[16] which the trial court, after hearings thereon, granted by Order of May 21, 2007,[17] it finding that theevidence of guilt for the crime of murder is not strong. It accordingly allowed petitioner to post bail in the amount ofP300,000 for his provisional liberty.

The trial court, absent any writ of preliminary injunction from the appellate court, went on to try petitioner underthe Amended Information. By Decision of January 14, 2009, the trial court found petitioner guilty of homicide,sentencing him to suffer an indeterminate penalty of six years and one day of prision mayor as minimum to 12 yearsand one day of reclusion temporal as maximum. From the Decision, petitioner filed an appeal to the appellate court,docketed as CA-G.R. CR No. 32159, during the pendency of which he filed an urgent application for admission to bailpending appeal. The appellate court denied petitioners application which this Court, in G.R. No. 189122, affirmed byDecision of March 17, 2010.

The Office of the Solicitor General (OSG) later argued that the present petition had been rendered moot since thepresentation of evidence, wherein petitioner actively participated, had been concluded.[18]

Waiver on the part of the accused must be distinguished from mootness of the petition, for in the present case,petitioner did not, by his active participation in the trial, waive his stated objections.

Section 26, Rule 114 of the Rules of Court provides:

SEC. 26. Bail not a bar to objections on illegal arrest, lack of or irregular preliminary investigation. Anapplication for or admission to bail shall not bar the accused from challenging the validity of his arrest or the legality ofthe warrant issued therefor, or from assailing the regularity or questioning the absence of a preliminary investigation ofthe 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.

By applying for bail, petitioner did not waive his right to challenge the regularity of the reinvestigation of the chargeagainst him, the validity of the admission of the Amended Information, and the legality of his arrest under the AmendedInformation, as he vigorously raised them prior to his arraignment. During the arraignment on March 21, 2007,petitioner refused to enter his plea since the issues he raised were still pending resolution by the appellate court, thusprompting the trial court to enter a plea of not guilty for him.

The principle that the accused is precluded after arraignment from questioning the illegal arrest or the lack of orirregular preliminary investigation applies only if he voluntarily enters his plea and participates during trial, withoutpreviously invoking his objections thereto.[19] There must be clear and convincing proof that petitioner had an actual


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intention to relinquish his right to question the existence of probable cause. When the only proof of intention rests onwhat a party does, his act should be so manifestly consistent with, and indicative of, an intent to voluntarily andunequivocally relinquish the particular right that no other explanation of his conduct is possible.[20]

From the given circumstances, the Court cannot reasonably infer a valid waiver on the part of petitioner to preclude himfrom obtaining a definite resolution of the objections he so timely invoked. Other than its allegation of activeparticipation, the OSG offered no clear and convincing proof that petitioners participation in the trial was unconditionalwith the intent to voluntarily and unequivocally abandon his petition. In fact, on January 26, 2010, petitioner still

moved for the early resolution of the present petition.[21]

Whatever delay arising from petitioners availment of remedies against the trial courts Orders cannot be imputed topetitioner to operate as a valid waiver on his part. Neither can the non-issuance of a writ of preliminary injunction bedeemed as a voluntary relinquishment of petitioners principal prayer. The non-issuance of such injunctive relief onlymeans that the appellate court did not preliminarily find any exception[22] to the long-standing doctrine that injunctionwill not lie to enjoin a criminal prosecution.[23] Consequently, the trial of the case took its course.

The petition is now moot, however, in view of the trial courts rendition of judgment.

A moot and academic case is one that ceases to present a justiciable controversy by virtue of supervening events, sothat a declaration thereon would be of no practical use or value.[24]

The judgment convicting petitioner of homicide under the Amended Information for murder operates as a superveningevent that mooted the present petition. Assuming that there is ground[25] to annul the finding of probable cause formurder, there is no practical use or value in abrogating the concluded proceedings and retrying the case under the

original Information for homicide just to arrive, more likely or even definitely, at the same conviction of homicide.Mootness would have also set in had petitioner been convicted of murder, for proof beyond reasonable doubt, which ismuch higher than probable cause, would have been established in that instance.

Instead, however, of denying the petition outright on the ground of mootness, the Court proceeds to resolve the legalissues in order to formulate controlling principles to guide the bench, bar and public.[26] In the present case, there iscompelling reason to clarify the remedies available before and after the filing of an information in cases subject ofinquest.

After going over into the substance of the petition and the assailed issuances, the Court finds no reversible error on thepart of the appellate court in finding no grave abuse of discretion in the issuance of the four trial court Orders.

In his first assignment of error, petitioner posits that the prosecution has no right under the Rules to seek from the trialcourt an investigation or reevaluation of the case except through a petition for review before the Department of Justice(DOJ). In cases when an accused is arrested without a warrant, petitioner contends that the remedy of preliminaryinvestigation belongs only to the accused.

The contention lacks merit.

Section 6,[27] Rule 112 of the Rules of Court reads:

When a person is lawfully arrested without a warrant involving an offense which requires a preliminaryinvestigation, the complaint or information may be filed by a prosecutor without need of such investigation provided aninquest has been conducted in accordance with existing rules. In the absence or unavailability of an inquestprosecutor, the complaint may be filed by the offended party or a peace officer directly with the proper court on thebasis of the affidavit of the offended party or arresting officer or person.

Before the complaint or information is filed, the person arrested may ask for a preliminary investigation inaccordance with this Rule, but he must sign a waiver of the provisions of Article 125 of the Revised Penal Code, asamended, in the presence of his counsel. Notwithstanding the waiver, he may apply for bail and the investigation mustbe terminated within fifteen (15) days from its inception.

After the filing of the complaint or information in court without a preliminary investigation, the accused may,

within five (5) days from the time he learns of its filing, ask for a preliminary investigation with the same right toadduce evidence in his defense as provided in this Rule. (underscoring supplied)

A preliminary investigation is required before the filing of a complaint or information for an offense where the penaltyprescribed by law is at least four years, two months and one day without regard to fine.[28] As an exception, the rulesprovide that there is no need for a preliminary investigation in cases of a lawful arrest without a warrant[29] involvingsuch type of offense, so long as an inquest, where available, has been conducted.[30]

Inquest is defined as an informal and summary investigation conducted by a public prosecutor in criminal casesinvolving persons arrested and detained without the benefit of a warrant of arrest issued by the court for the purpose ofdetermining whether said persons should remain under custody and correspondingly be charged in court.[31]


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It is imperative to first take a closer look at the predicament of both the arrested person and the private complainantduring the brief period of inquest, to grasp the respective remedies available to them before and after the filing of acomplaint or information in court.

BEFORE THE FILING OF COMPLAINT OR INFORMATION IN COURT, the private complainant may proceed in coordinatingwith the arresting officer and the inquest officer during the latters conduct of inquest. Meanwhile, the arrested personhas the option to avail of a 15-day preliminary investigation, provided he duly signs a waiver of any objection againstdelay in his delivery to the proper judicial authorities under Article 125 of the Revised Penal Code. For obvious reasons,

this remedy is not available to the private complainant since he cannot waive what he does not have. The benefit of theprovisions of Article 125, which requires the filing of a complaint or information with the proper judicial authoritieswithin the applicable period,[32] belongs to the arrested person.

The accelerated process of inquest, owing to its summary nature and the attendant risk of running against Article 125,ends with either the prompt filing of an information in court or the immediate release of the arrested person.[33]Notably, the rules on inquest do not provide for a motion for reconsideration.[34]

Contrary to petitioners position that private complainant should have appealed to the DOJ Secretary, such remedy isnot immediately available in cases subject of inquest.

Noteworthy is the proviso that the appeal to the DOJ Secretary is by petition by a proper party under such rules as theDepartment of Justice may prescribe.[35] The rule referred to is the 2000 National Prosecution Service Rule onAppeal,[36] Section 1 of which provides that the Rule shall apply to appeals from resolutions x x x in cases subject ofpreliminary investigation/ reinvestigation. In cases subject of inquest, therefore, the private party should first avail ofa preliminary investigation or reinvestigation, if any, before elevating the matter to the DOJ Secretary.

In case the inquest proceedings yield no probable cause, the private complainant may pursue the case through theregular course of a preliminary investigation.

ONCE A COMPLAINT OR INFORMATION IS FILED IN COURT, the rules yet provide the accused with another opportunity toask for a preliminary investigation within five days from the time he learns of its filing. The Rules of Court and the NewRules on Inquest are silent, however, on whether the private complainant could invoke, as respondent heirs of thevictim did in the present case, a similar right to ask for a reinvestigation.

The Court holds that the private complainant can move for reinvestigation, subject to and in light of the ensuingdisquisition.

All criminal actions commenced by a complaint or information shall be prosecuted under the direction and control ofthe public prosecutor.[37] The private complainant in a criminal case is merely a witness and not a party to the caseand cannot, by himself, ask for the reinvestigation of the case after the information had been filed in court, the properparty for that being the public prosecutor who has the control of the prosecution of the case.[38] Thus, in cases wherethe private complainant is allowed to intervene by counsel in the criminal action,[39] and is granted the authority toprosecute,[40] the private complainant, by counsel and with the conformity of the public prosecutor, can file a motionfor reinvestigation.

In fact, the DOJ instructs that before the arraignment of the accused, trial prosecutors must examine the Informationvis--vis the resolution of the investigating prosecutor in order to make the necessary corrections or revisions and toensure that the information is sufficient in form and substance.[41]

x x x Since no evidence has been presented at that stage, the error would appear or be discoverable from areview of the records of the preliminary investigation. Of course, that fact may be perceived by the trial judge himselfbut, again, realistically it will be the prosecutor who can initially determine the same. That is why such error need notbe manifest or evident, nor is it required that such nuances as offenses includible in the offense charged be taken intoaccount. It necessarily follows, therefore, that the prosecutor can and should institute remedial measures[.][42](emphasis and underscoring supplied)

The pros

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Nat'l Security - Public Order (5)