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AURELIO S. ALVERO, vs.ARSENIO P. DIZON, ET AL.,

This is a petition for certiorari with injunction originally filed in this court.

In the petition it is alleged that petitioner Aurelio S. Alvero has been accused of treason, in criminal case No. 3 of the People's Court; that at the hearing on his petition for bail, the prosecution presented, as part of its evidence, certain documents which had been allegedly seized by soldiers of the United States Army, accompanied by Filipino guerrillas, in the petitioner's house; that petitioner immediately objected to the presentation of said documents, and called the attention of the respondent judges to the fact that he had filed a petition, in which he protested against the procedure of the government in the seizure of said documents, and asked for their return to the petitioner; that the respondents permitted the prosecution to present said documents as evidence, which were considered, upon the termination of the presentation of the evidence for both parties, in denying said petition for bail; that the petition filed on December 1, 1945, for the return of the documents allegedly seized illegally in petitioner's house, was not considered by the respondents, before the commencement of the trial of petitioner's case, on the merits, due perhaps to an involuntary oversight; that at the commencement of the trial of said criminal case No. 3, and during its course, the prosecution again presented, as evidence, against the petitioner said documents which had been taken from his house, and petitioner renewed his objection thereto, and asked for their return to him, alleging that their seizure was illegal and that their presentation would be

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tantamount to compelling him to testify against himself, in violation of his constitutional rights; that in deciding the question so raised, the respondent judges, in open court, stated that the prosecution might in the meanwhile continue presenting said documents, without prejudice to the final resolution of said petition, when the prosecution should finish presenting its evidence; that in concluding the presentation of its evidence and resting the case, after offering said documents as part of its evidence, the petitioner again raised the question of the admissibility of said documents, and the respondent judges then ordered the substantiation of said allegations of petitioner, and set for hearing his petition for the return of said documents; that said petition was heard on February 16, 1946, and at said hearing, the petitioner and his wife testified, without any contradiction that, on February 12, 1945, on the occasion of the arrest of the petitioner by soldiers of the United States Army, the latter searched the house of the petitioner and seized, among other things, the documents which he had in his house; that when said petition for the return of said documents was submitted for the consideration and decision of the respondent judges, the latter, on February 26, 1946, issued an order denying said petition, and admitted as competent evidence the documents presented by the prosecution, marked as Exhibits A, C, G, H, K, L, P, R, R-1, R-2, U, Z, CC, DD, FF, HH; that on the same date that said order was issued, denying the petition for the return of said documents, petitioner asked for the reconsideration of said order, which was also denied. (Petition, pars. 1-12.)

And herein petitioner now claims that the respondent judges, in denying the petition for the return of said documents, acted without jurisdiction and committed a grave abuse in the exercise of their discretion, alleging that even the seizure of documents by means of a search warrant legally issued, constitutes a violation of the rights guaranteed in paragraphs 3 and 18 of section 1 of Article III of the Constitution, and, consequently, when their seizure cannot be justified by the corresponding search warrant, the court should order their immediate return; that the petitioner has no other speedy and adequate remedy for the protection of his rights guaranteed by the Constitution, other than this petition for certiorari, as the right of appeal granted by law to a person accused of a crime, is costly and highly prejudicial to the petitioner, as it presupposes that the prosecution has established the guilt of the accused by means of legal and competent evidence, as alleged in the last three (3) paragraphs of the petition.

Consequently, herein petitioner asks for the annulment of the order issued by the respondent judges, on February 26, 1946, in said criminal case No. 3, entitled — People of the Philippines vs. Aurelio S. Alvero, — the return to him of the documents presented by the prosecution, mentioned above, and the issuance of a writ of preliminary injunction. .In their answer filed on March 21, 1946, herein respondents have substantially admitted the allegations made and contained in the first twelve (12) paragraphs of the petition, except the portions alleging that the documents in question had been obtained by means of force and intimidation or through coercion; and that certain soldiers of the American Army took certain personal properties of herein petitioner, at the time the search was made; and that the acquisition of said documents was manifestly a violation of petitioner's constitutional rights and that their admission, as evidence for the prosecution, would be tantamount to compelling petitioner, as accused, to testify against himself — all of which portions have been expressly denied by the respondents.

Respondents have also expressly denied the allegations contained in the remaining three (3) paragraphs of the petition.

And as defenses, respondents allege (1) that petitioner himself has admitted the legality of the seizure of the documents in question in his motion for reconsideration, dated February 26, 1946; (2) that petitioner has not proven that said documents had been illegally seized for him; (3) that the seizure of the documents in question took place, on February 12, 1945, in Pasay, Rizal, which was then still a combat zone, and that the seizure of certain papers in the house of the petitioner was made by soldiers of the United States Army of Liberation or its instrumentalities; (4) that said seizure was effected lawfully under the terms of the proclamation of the Commander in Chief of the United States Liberation Forces, dated December 29, 1944, in which he declared his purpose to remove alleged collaborators, when apprehended, from any position of political and economic influence in the Philippines and to hold them in restraint for the duration of the war; (5) that the documents in question had been properly admitted as evidence for the prosecution in criminal case

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No. 3, as herein petitioner, as accused in said case, had expressly waived his right to object to their admissibility, particularly Exhibits A, FF, HH and P; (6) that petitioner's evidence of alleged ownership, relative to Exhibits C, G, H, K, I, P, R, R-1 and R-2, is altogether insufficient, and petitioner himself has expressly admitted that said documents are not his personal papers but part of the files of the New Leaders' Association, which was proven to be an organization created, for the purpose of collaborating with the enemy; (7) and that none of the exhibits referred to in the petition has been satisfactorily identified by the petitioner as included among the papers allegedly wrongfully seized from his house and belonging to him.

Considering the allegations made by the parties in their respective pleadings, and their supporting papers, as well as the admissions made therein, the following facts appear to have been sufficiently established:

(1) That on February 12, 1945, while the battle for Manila was raging, soldiers of the United States Army, accompanied by men of Filipino Guerrilla Forces, placed herein petitioner under arrest, having been suspected of collaboration with the enemy, and seized and took certain papers from his house in Pasay, Rizal;

(2) That on or about October 4, 1945, petitioner was accused of treason, in criminal case No. 3 of the People's Court; after which, on December 1, 1945, he filed a petition, demanding the return of the papers allegedly seized and taken from his house;

(3) That petitioner also filed a petition for bail, at the hearing of which the prosecution presented certain papers and documents, which were admitted as part of its evidence, and said petition was denied;

(4) That at the trial of the case on the merits, the prosecution again presented said papers and documents, which were admitted as part of its evidence, and were marked as exhibits, as described in the petition for certiorari, filed in this court;

(5) That herein petitioner had failed to object properly to the admission of said papers and documents at the hearing on said petition for bail, and at the trial of the case on the merits, in not having insisted that the question of the legality of the search and seizure of the papers and documents taken from his house should have been litigated and finally decided first, and thus practically waived his objection to their admissibility, as evidence for the prosecution;

(6) That at the hearing on his petition for the return of the papers taken from his house, held after they had been admitted as part of the evidence for the prosecution, at the hearing on the petition for bail and at the trial of the case on the merits, herein petitioner had failed to identify satisfactorily the documents now in question, and his ownership thereof; and

(7) That petitioner himself in his petition for reconsideration, dated February 26, 1946, admitted the legality the legality of the seizure of the documents taken from his house, and at the hearing on his petition for bail, he himself called for some of the documents in question.

The right of officers and men of the United States Army to arrest herein petitioner, as a collaborationist suspect, and to seize his personal papers, without any search warrant, in the zone of military operations, is unquestionable, under the provisions of article 4, Chapter II, Section I, of the Regulations relative to the Laws and Customs of War on Land of the Hague Conventions of 1907, authorizing the seizure of military papers in the possession of prisoners of war (Wilson, International Law, 3d ed., 1939, p.524); and also under the proclamation, dated December 29, 1944, issued by Gen. Douglas MacArthur, as Commander in Chief of the United States of Army, declaring his purpose to remove certain citizens of the Philippines, who had voluntarily given aid and comfort to the enemy, in violation of the allegiance due the Governments of the United States and the Commonwealth of the Philippines, when apprehended, from any position of political and economic influence in the Philippines and to hold them in restraint for the duration of the war. (41 Off. Gaz., No. 2, pp. 148, 149.) As a matter of fact, petitioner himself, in his motion for

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reconsideration, dated February 26, 1946, expressly admitted the legality of the seizure of his personal papers and documents at the time of his arrest.

The most important exception to the necessity for a search warrant is the right of search and seizure as an incident to a lawful arrest. A lawful arrest may be made either while a crime is being committed or after its commission. The right to search includes in both instances that of searching the person of him who is arrested, in order to find and seize things connected with the crime as its fruits or as the means by which it was committed. (Agnello vs. United States, 269 U. S., 20.)

When one is legally arrested for an offense, whatever is found in his possession or in his control may be seized and used in evidence against him; and an officer has the right to make an arrest without a warrant of a person believed by the officer upon reasonable grounds to have committed a felony. (Carroll vs. United States, 267 U. S., 132.).

The majority of the states have held that the privilege against compulsory self-incrimination, which is also guaranteed by state constitutional provisions is not violated by the use in evidence of articles obtained by an unconstitutional search and seizure. (People vs. Defore, 242 N. Y., 13; 150 N. E., 585.)

It is true that on December 1, 1945, herein petitioner filed a petition, demanding the return of certain papers and documents allegedly seized and taken from his house at the time of his arrest; but when he consented to their presentation, as part of the evidence for the prosecution, at the hearing on his petition for bail and at the trial of the case on the merits, without having insisted that the question of the alleged illegality of the search and seizure of said papers and documents should first have been directly litigated and established by a motion, made before the trial, for their return, he was and should be deemed to have waived his objection to their admissibility as part of the evidence for the prosecution; since the privilege against compulsory self-incrimination may be waived. (Weeks vs. United States, 232 U. S., 383; Silverthorne Lumber Co. vs. United States, 251 U. S., 385; Gouled vs. United States, 255 U. S., 298; People vs. Carlos, 47 Phil., 626, 630, 631.)

At the hearing on his petition for bail, petitioner himself requested the production of the document marked as Exhibit A, which was a letter sent by him to Dr. Jose P. Laurel; the document marked as Exhibit HH, which was a memorandum to Col. Suzuki, dated December 30, 1944; and the document marked as Exhibit P, which was a memorandum on Nippongo classes. And he is now, therefore, estopped from questioning their admission.

Furthermore, petitioner could not properly identify many of said documents, such as Exhibit FF, nor satisfactorily establish his ownership thereof; while the prosecution has sufficiently established the fact that some of the papers now in question, such as Exhibit C, had been received at the Office of the CIC of the United States Army in the City of Manila, since February 11, 1945, that is, one day prior to the seizure of certain papers and documents in the house of the petitioner. And with reference to Exhibits C, G, H, K, L, P, R, R-1 and R-2, petitioner himself admitted that they are not his personal papers but part of the files of the New Leader's Association. And it is well established rule in this jurisdiction that in a petition for the production of papers and documents, they must be sufficiently described and identified, otherwise the petition cannot prosper. (Liebenow vs. Philippine Vegetable Oil Co., 39 Phil., 60, 67, 69; Rule 21, section 1, Rules of Court.)

The purpose of the constitutional provisions against unlawful searches and seizures is to prevent violations of private security in person and property, and unlawful invasions of the sanctity of the home, by officers of the law acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. (Adams vs. New York, 192 U. S., 585.) But it does not prohibit the Federal Government from taking advantage of unlawful searches made by a private person or under authority of state law. (Weeks vs. United States, 232 U. S., 383; Burdeau vs. McDowell, 256 U. S., 465.)

As the soldiers of the United States Army, that took and seized certain papers and documents from the residence of herein petitioner, on February 12, 1945, were not acting as agents or on behalf of

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the Government of the Commonwealth of the Philippines; and that those papers and documents came in the possession of the authorities of the Commonwealth Government, through the Office of the CIC of the United States Army in Manila, the use and presentation of said papers and documents, as evidence for the prosecution against herein petitioner, at the trial of his case for treason, before the People's Court, cannot now be legally attacked, on the ground of unlawful or unreasonable searches and seizures, or on any other constitutional ground, as declared by the Supreme Court of the United States in similar cases. (Burdeau vs. McDowell, 256 U. S., 465; Gambino vs. United States, 275 U. S., 310.)

In view of the foregoing, it is evident that the petition for certiorari with injunction, filed in this case, is absolutely without merit, and it is, therefore, hereby denied and dismissed with costs. So ordered.

PEOPLE OF THE PHILIPPINES, vs. ANDRE MARTI, 

This is an appeal from a decision * rendered by the Special Criminal Court of Manila (Regional Trial Court, Branch XLIX) convicting accused-appellant of violation of Section 21 (b), Article IV in relation to Section 4, Article 11 and Section 2 (e) (i), Article 1 of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act.

The facts as summarized in the brief of the prosecution are as follows:

On August 14, 1987, between 10:00 and 11:00 a.m., the appellant and his common-law wife, Shirley Reyes, went to the booth of the "Manila Packing and Export Forwarders" in the Pistang Pilipino Complex, Ermita, Manila, carrying with them four (4) gift wrapped packages. Anita Reyes (the proprietress and no relation to Shirley Reyes) attended to them. The appellant informed Anita Reyes that he was sending the packages to a friend in Zurich, Switzerland. Appellant filled up the contract necessary for the transaction, writing therein his name, passport number, the date of shipment and the name and address of the consignee, namely, "WALTER FIERZ, Mattacketr II, 8052 Zurich, Switzerland" (Decision, p. 6)

Anita Reyes then asked the appellant if she could examine and inspect the packages. Appellant, however, refused, assuring her that the packages simply contained books, cigars, and gloves and were gifts to his friend in Zurich. In view of appellant's representation, Anita Reyes no longer insisted on inspecting the packages. The four (4) packages were then placed inside a brown corrugated box one by two feet in size (1' x 2'). Styro-foam was placed at the bottom and on top of the packages before the box was sealed with masking tape, thus making the box ready for shipment (Decision, p. 8).

Before delivery of appellant's box to the Bureau of Customs and/or Bureau of Posts, Mr. Job Reyes (proprietor) and husband of Anita (Reyes), following standard operating procedure, opened the boxes for final inspection. When he opened appellant's box, a peculiar odor emitted therefrom. His curiousity aroused, he squeezed one of the bundles allegedly containing gloves and felt dried leaves inside. Opening one of the bundles, he pulled out a cellophane wrapper protruding from the opening of one of the gloves. He made an opening on one of the cellophane wrappers and took several grams of the contents thereof (tsn, pp. 29-30, October 6, 1987; Emphasis supplied).

Job Reyes forthwith prepared a letter reporting the shipment to the NBI and requesting a laboratory examination of the samples he extracted from the cellophane wrapper (tsn, pp. 5-6, October 6, 1987).

He brought the letter and a sample of appellant's shipment to the Narcotics Section of the National Bureau of Investigation (NBI), at about 1:30 o'clock in the afternoon of

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that date, i.e., August 14, 1987. He was interviewed by the Chief of Narcotics Section. Job Reyes informed the NBI that the rest of the shipment was still in his office. Therefore, Job Reyes and three (3) NBI agents, and a photographer, went to the Reyes' office at Ermita, Manila (tsn, p. 30, October 6, 1987).

Job Reyes brought out the box in which appellant's packages were placed and, in the presence of the NBI agents, opened the top flaps, removed the styro-foam and took out the cellophane wrappers from inside the gloves. Dried marijuana leaves were found to have been contained inside the cellophane wrappers (tsn, p. 38, October 6, 1987; Emphasis supplied).

The package which allegedly contained books was likewise opened by Job Reyes. He discovered that the package contained bricks or cake-like dried marijuana leaves. The package which allegedly contained tabacalera cigars was also opened. It turned out that dried marijuana leaves were neatly stocked underneath the cigars (tsn, p. 39, October 6, 1987).

The NBI agents made an inventory and took charge of the box and of the contents thereof, after signing a "Receipt" acknowledging custody of the said effects (tsn, pp. 2-3, October 7, 1987).

Thereupon, the NBI agents tried to locate appellant but to no avail. Appellant's stated address in his passport being the Manila Central Post Office, the agents requested assistance from the latter's Chief Security. On August 27, 1987, appellant, while claiming his mail at the Central Post Office, was invited by the NBI to shed light on the attempted shipment of the seized dried leaves. On the same day the Narcotics Section of the NBI submitted the dried leaves to the Forensic Chemistry Section for laboratory examination. It turned out that the dried leaves were marijuana flowering tops as certified by the forensic chemist. (Appellee's Brief, pp. 9-11, Rollo, pp. 132-134).

Thereafter, an Information was filed against appellant for violation of RA 6425, otherwise known as the Dangerous Drugs Act.

After trial, the court a quo rendered the assailed decision.

In this appeal, accused/appellant assigns the following errors, to wit:

THE LOWER COURT ERRED IN ADMITTING IN EVIDENCE THE ILLEGALLY SEARCHED AND SEIZED OBJECTS CONTAINED IN THE FOUR PARCELS.

THE LOWER COURT ERRED IN CONVICTING APPELLANT DESPITE THE UNDISPUTED FACT THAT HIS RIGHTS UNDER THE CONSTITUTION WHILE UNDER CUSTODIAL PROCEEDINGS WERE NOT OBSERVED.

THE LOWER COURT ERRED IN NOT GIVING CREDENCE TO THE EXPLANATION OF THE APPELLANT ON HOW THE FOUR PARCELS CAME INTO HIS POSSESSION (Appellant's Brief, p. 1;Rollo, p. 55)

1. Appellant contends that the evidence subject of the imputed offense had been obtained in violation of his constitutional rights against unreasonable search and seizure and privacy of communication (Sec. 2 and 3, Art. III, Constitution) and therefore argues that the same should be held inadmissible in evidence (Sec. 3 (2), Art. III).

Sections 2 and 3, Article III of the Constitution provide:

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

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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.

Sec. 3. (1) The privacy of communication and correspondence shall be inviolable except upon lawful order of the court, or when public safety or order requires otherwise as prescribed by law.

(2) Any evidence obtained in violation of this or the preceding section shall be inadmissible for any purpose in any proceeding.

Our present constitutional provision on the guarantee against unreasonable search and seizure had its origin in the 1935 Charter which, worded as follows:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but uponprobable cause, to be determined 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. (Sec. 1 [3], Article III)

was in turn derived almost verbatim from the Fourth Amendment ** to the United States Constitution. As such, the Court may turn to the pronouncements of the United States Federal Supreme Court and State Appellate Courts which are considered doctrinal in this jurisdiction.

Thus, following the exclusionary rule laid down in Mapp v. Ohio by the US Federal Supreme Court (367 US 643, 81 S.Ct. 1684, 6 L.Ed. 1081 [1961]), this Court, in Stonehill v. Diokno (20 SCRA 383 [1967]), declared as inadmissible any evidence obtained by virtue of a defective search and seizure warrant, abandoning in the process the ruling earlier adopted in Moncado v. People's Court (80 Phil. 1 [1948]) wherein the admissibility of evidence was not affected by the illegality of its seizure.The 1973 Charter (Sec. 4 [2], Art. IV) constitutionalized the Stonehill ruling and is carried over up to the present with the advent of the 1987 Constitution.

In a number of cases, the Court strictly adhered to the exclusionary rule and has struck down the admissibility of evidence obtained in violation of the constitutional safeguard against unreasonable searches and seizures. (Bache & Co., (Phil.), Inc., v. Ruiz, 37 SCRA 823 [1971]; Lim v. Ponce de Leon, 66 SCRA 299 [1975]; People v. Burgos, 144 SCRA 1 [1986]; Roan v. Gonzales, 145 SCRA 687 [1987]; See also Salazar v. Hon. Achacoso, et al., GR No. 81510, March 14, 1990).

It must be noted, however, that in all those cases adverted to, the evidence so obtained were invariably procured by the State acting through the medium of its law enforcers or other authorized government agencies.

On the other hand, the case at bar assumes a peculiar character since the evidence sought to be excluded was primarily discovered and obtained by a private person, acting in a private capacity and without the intervention and participation of State authorities. Under the circumstances, can accused/appellant validly claim that his constitutional right against unreasonable searches and seizure has been violated? Stated otherwise, may an act of a private individual, allegedly in violation of appellant's constitutional rights, be invoked against the State?

We hold in the negative. In the absence of governmental interference, the liberties guaranteed by the Constitution cannot be invoked against the State.

As this Court held in Villanueva v. Querubin (48 SCRA 345 [1972]:

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1. This constitutional right (against unreasonable search and seizure) refers to the immunity of one's person, whether citizen or alien, from interference by government, included in which is his residence, his papers, and other possessions. . . .

. . . There the state, however powerful, does not as such have the access except under the circumstances above noted, for in the traditional formulation, his house, however humble, is his castle. Thus is outlawed any unwarranted intrusion by government, which is called upon to refrain from any invasion of his dwelling and to respect the privacies of his life. . . . (Cf. Schermerber v. California, 384 US 757 [1966] and Boyd v. United States, 116 US 616 [1886]; Emphasis supplied).

In Burdeau v. McDowell (256 US 465 (1921), 41 S Ct. 547; 65 L.Ed. 1048), the Court there in construing the right against unreasonable searches and seizures declared that:

(t)he Fourth Amendment gives protection against unlawful searches and seizures, and as shown in previous cases, its protection applies to governmental action. Its origin and history clearly show that it was intended as a restraint upon the activities of sovereign authority, and was not intended to be a limitation upon other than governmental agencies; as against such authority it was the purpose of the Fourth Amendment to secure the citizen in the right of unmolested occupation of his dwelling and the possession of his property, subject to the right of seizure by process duly served.

The above ruling was reiterated in State v. Bryan (457 P.2d 661 [1968]) where a parking attendant who searched the automobile to ascertain the owner thereof found marijuana instead, without the knowledge and participation of police authorities, was declared admissible in prosecution for illegal possession of narcotics.

And again in the 1969 case of Walker v. State (429 S.W.2d 121), it was held that the search and seizure clauses are restraints upon the government and its agents, not upon private individuals (citing People v. Potter, 240 Cal. App.2d 621, 49 Cap. Rptr, 892 (1966); State v. Brown, Mo., 391 S.W.2d 903 (1965); State v. Olsen, Or., 317 P.2d 938 (1957).

Likewise appropos is the case of Bernas v. US (373 F.2d 517 (1967). The Court there said:

The search of which appellant complains, however, was made by a private citizen — the owner of a motel in which appellant stayed overnight and in which he left behind a travel case containing the evidence*** complained of. The search was made on the motel owner's own initiative. Because of it, he became suspicious, called the local police, informed them of the bag's contents, and made it available to the authorities.

The fourth amendment and the case law applying it do not require exclusion of evidence obtained through a search by a private citizen. Rather, the amendment only proscribes governmental action."

The contraband in the case at bar having come into possession of the Government without the latter transgressing appellant's rights against unreasonable search and seizure, the Court sees no cogent reason why the same should not be admitted against him in the prosecution of the offense charged.

Appellant, however, would like this court to believe that NBI agents made an illegal search and seizure of the evidence later on used in prosecuting the case which resulted in his conviction.

The postulate advanced by accused/appellant needs to be clarified in two days. In both instances, the argument stands to fall on its own weight, or the lack of it.

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First, the factual considerations of the case at bar readily foreclose the proposition that NBI agents conducted an illegal search and seizure of the prohibited merchandise. Records of the case clearly indicate that it was Mr. Job Reyes, the proprietor of the forwarding agency, who made search/inspection of the packages. Said inspection was reasonable and a standard operating procedure on the part of Mr. Reyes as a precautionary measure before delivery of packages to the Bureau of Customs or the Bureau of Posts (TSN, October 6 & 7, 1987, pp. 15-18; pp. 7-8; Original Records, pp. 119-122; 167-168).

It will be recalled that after Reyes opened the box containing the illicit cargo, he took samples of the same to the NBI and later summoned the agents to his place of business. Thereafter, he opened the parcel containing the rest of the shipment and entrusted the care and custody thereof to the NBI agents. Clearly, the NBI agents made no search and seizure, much less an illegal one, contrary to the postulate of accused/appellant.

Second, the mere presence of the NBI agents did not convert the reasonable search effected by Reyes into a warrantless search and seizure proscribed by the Constitution. Merely to observe and look at that which is in plain sight is not a search. Having observed that which is open, where no trespass has been committed in aid thereof, is not search (Chadwick v. State, 429 SW2d 135). Where the contraband articles are identified without a trespass on the part of the arresting officer, there is not the search that is prohibited by the constitution (US v. Lee 274 US 559, 71 L.Ed. 1202 [1927]; Ker v. State of California 374 US 23, 10 L.Ed.2d. 726 [1963]; Moore v. State, 429 SW2d 122 [1968]).

In Gandy v. Watkins (237 F. Supp. 266 [1964]), it was likewise held that where the property was taken into custody of the police at the specific request of the manager and where the search was initially made by the owner there is no unreasonable search and seizure within the constitutional meaning of the term.

That the Bill of Rights embodied in the Constitution is not meant to be invoked against acts of private individuals finds support in the deliberations of the Constitutional Commission. True, the liberties guaranteed by the fundamental law of the land must always be subject to protection. But protection against whom? Commissioner Bernas in his sponsorship speech in the Bill of Rights answers the query which he himself posed, as follows:

First, the general reflections.The protection of fundamental liberties in the essence of constitutional democracy.Protection against whom? Protection against the state. The Bill of Rights governs the relationship between the individual and the state. Its concern is not the relation between individuals, between a private individual and other individuals. What the Bill of Rights does is to declare some forbidden zones in the private sphere inaccessible to any power holder. (Sponsorship Speech of Commissioner Bernas , Record of the Constitutional Commission, Vol. 1, p. 674; July 17, 1986; Emphasis supplied)

The constitutional proscription against unlawful searches and seizures therefore applies as a restraint directed only against the government and its agencies tasked with the enforcement of the law. Thus, it could only be invoked against the State to whom the restraint against arbitrary and unreasonable exercise of power is imposed.

If the search is made upon the request of law enforcers, a warrant must generally be first secured if it is to pass the test of constitutionality. However, if the search is made at the behest or initiative of the proprietor of a private establishment for its own and private purposes, as in the case at bar, and without the intervention of police authorities, the right against unreasonable search and seizure cannot be invoked for only the act of private individual, not the law enforcers, is involved. In sum, the protection against unreasonable searches and seizures cannot be extended to acts committed by private individuals so as to bring it within the ambit of alleged unlawful intrusion by the government.

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Appellant argues, however, that since the provisions of the 1935 Constitution has been modified by the present phraseology found in the 1987 Charter, expressly declaring as inadmissible any evidence obtained in violation of the constitutional prohibition against illegal search and seizure, it matters not whether the evidence was procured by police authorities or private individuals (Appellant's Brief, p. 8, Rollo, p. 62).

The argument is untenable. For one thing, the constitution, in laying down the principles of the government and fundamental liberties of the people, does not govern relationships between individuals. Moreover, it must be emphasized that the modifications introduced in the 1987 Constitution (re: Sec. 2, Art. III) relate to the issuance of either a search warrant or warrant of arrest vis-a-vis the responsibility of the judge in the issuance thereof (SeeSoliven v. Makasiar, 167 SCRA 393 [1988]; Circular No. 13 [October 1, 1985] and Circular No. 12 [June 30, 1987]. The modifications introduced deviate in no manner as to whom the restriction or inhibition against unreasonable search and seizure is directed against. The restraint stayed with the State and did not shift to anyone else.

Corolarilly, alleged violations against unreasonable search and seizure may only be invoked against the State by an individual unjustly traduced by the exercise of sovereign authority. To agree with appellant that an act of a private individual in violation of the Bill of Rights should also be construed as an act of the State would result in serious legal complications and an absurd interpretation of the constitution.

Similarly, the admissibility of the evidence procured by an individual effected through private seizure equally applies, in paripassu, to the alleged violation, non-governmental as it is, of appellant's constitutional rights to privacy and communication.

2. In his second assignment of error, appellant contends that the lower court erred in convicting him despite the undisputed fact that his rights under the constitution while under custodial investigation were not observed.

Again, the contention is without merit, We have carefully examined the records of the case and found nothing to indicate, as an "undisputed fact", that appellant was not informed of his constitutional rights or that he gave statements without the assistance of counsel. The law enforcers testified that accused/appellant was informed of his constitutional rights. It is presumed that they have regularly performed their duties (See. 5(m), Rule 131) and their testimonies should be given full faith and credence, there being no evidence to the contrary. What is clear from the records, on the other hand, is that appellant refused to give any written statement while under investigation as testified by Atty. Lastimoso of the NBI, Thus:

Fiscal Formoso:

You said that you investigated Mr. and Mrs. Job Reyes. What about the accused here, did you investigate the accused together with the girl?

WITNESS:

Yes, we have interviewed the accused together with the girl but the accused availed of his constitutional right not to give any written statement, sir. (TSN, October 8, 1987, p. 62; Original Records, p. 240)

The above testimony of the witness for the prosecution was not contradicted by the defense on cross-examination. As borne out by the records, neither was there any proof by the defense that appellant gave uncounselled confession while being investigated. What is more, we have examined the assailed judgment of the trial court and nowhere is there any reference made to the testimony of appellant while under custodial investigation which was utilized in the finding of conviction. Appellant's second assignment of error is therefore misplaced.

11

3. Coming now to appellant's third assignment of error, appellant would like us to believe that he was not the owner of the packages which contained prohibited drugs but rather a certain Michael, a German national, whom appellant met in a pub along Ermita, Manila: that in the course of their 30-minute conversation, Michael requested him to ship the packages and gave him P2,000.00 for the cost of the shipment since the German national was about to leave the country the next day (October 15, 1987, TSN, pp. 2-10).

Rather than give the appearance of veracity, we find appellant's disclaimer as incredulous, self-serving and contrary to human experience. It can easily be fabricated. An acquaintance with a complete stranger struck in half an hour could not have pushed a man to entrust the shipment of four (4) parcels and shell out P2,000.00 for the purpose and for appellant to readily accede to comply with the undertaking without first ascertaining its contents. As stated by the trial court, "(a) person would not simply entrust contraband and of considerable value at that as the marijuana flowering tops, and the cash amount of P2,000.00 to a complete stranger like the Accused. The Accused, on the other hand, would not simply accept such undertaking to take custody of the packages and ship the same from a complete stranger on his mere say-so" (Decision, p. 19,  Rollo, p. 91). As to why he readily agreed to do the errand, appellant failed to explain. Denials, if unsubstantiated by clear and convincing evidence, are negative self-serving evidence which deserve no weight in law and cannot be given greater evidentiary weight than the testimony of credible witnesses who testify on affirmative matters (People v. Esquillo, 171 SCRA 571 [1989]; People vs. Sariol, 174 SCRA 237 [1989]).

Appellant's bare denial is even made more suspect considering that, as per records of the Interpol, he was previously convicted of possession of hashish by the Kleve Court in the Federal Republic of Germany on January 1, 1982 and that the consignee of the frustrated shipment, Walter Fierz, also a Swiss national, was likewise convicted for drug abuse and is just about an hour's drive from appellant's residence in Zurich, Switzerland (TSN, October 8, 1987, p. 66; Original Records, p. 244; Decision, p. 21; Rollo, p. 93).

Evidence to be believed, must not only proceed from the mouth of a credible witness, but it must be credible in itself such as the common experience and observation of mankind can approve as probable under the circumstances (People v. Alto, 26 SCRA 342 [1968], citing Daggers v. Van Dyke, 37 N.J. Eg. 130; see also People v. Sarda, 172 SCRA 651 [1989]; People v. Sunga, 123 SCRA 327 [1983]); Castañares v. CA, 92 SCRA 567 [1979]). As records further show, appellant did not even bother to ask Michael's full name, his complete address or passport number. Furthermore, if indeed, the German national was the owner of the merchandise, appellant should have so indicated in the contract of shipment (Exh. "B", Original Records, p. 40). On the contrary, appellant signed the contract as the owner and shipper thereof giving more weight to the presumption that things which a person possesses, or exercises acts of ownership over, are owned by him (Sec. 5 [j], Rule 131). At this point, appellant is therefore estopped to claim otherwise.

Premises considered, we see no error committed by the trial court in rendering the assailed judgment.

WHEREFORE, the judgment of conviction finding appellant guilty beyond reasonable doubt of the crime charged is hereby AFFIRMED. No costs.

CECILIA ZULUETA, vs. COURT OF APPEALS and ALFREDO MARTIN, This is a petition to review the decision of the Court of Appeals, affirming the decision of the

Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers taken by her from private respondent’s clinic without the latter’s knowledge and consent.

The facts are as follows:Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,

petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother, a driver and private respondent’s secretary, forcibly opened the drawers and cabinet in her

12

husband’s clinic and took 157 documents consisting of private correspondence between Dr. Martin and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martin’s passport, and photographs. The documents and papers were seized for use in evidence in a case for legal separation and for disqualification from the practice of medicine which petitioner had filed against her husband.

Dr. Martin brought this action below for recovery of the documents and papers and for damages against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X, which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him “the capital/exclusive owner of the properties described in paragraph 3 of plaintiff’s Complaint or those further described in the Motion to Return and Suppress” and ordering Cecilia Zulueta and any person acting in her behalf to immediately return the properties to Dr. Martin and to pay him P5,000.00, as nominal damages; P5,000.00, as moral damages and attorney’s fees; and to pay the costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner Cecilia Zulueta and her attorneys and representatives were enjoined from “using or submitting/admitting as evidence” the documents and papers in question. On appeal, the Court of Appeals affirmed the decision of the Regional Trial Court. Hence this petition.

There is no question that the documents and papers in question belong to private respondent, Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge and consent. For that reason, the trial court declared the documents and papers to be properties of private respondent, ordered petitioner to return them to private respondent and enjoined her from using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial court’s decision, petitioner’s only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled that the documents and papers (marked as Annexes A-i to J-7 of respondent’s comment in that case) were admissible in evidence and, therefore, their use by petitioner’s attorney, Alfonso Felix, Jr., did not constitute malpractice or gross misconduct. For this reason it is contended that the Court of Appeals erred in affirming the decision of the trial court instead of dismissing private respondent’s complaint.

Petitioner’s contention has no merit. The case against Atty. Felix, Jr. was for disbarment. Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr., this Court took note of the following defense of Atty. Felix, Jr. which it found to be “impressed with merit:”2

On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he maintains that:       xxx                                  xxx                                  xxx

4. When respondent refiled Cecilia’s case for legal separation before the Pasig Regional Trial Court, there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the documents Annex “A-I to J-7.” On September 6, 1983, however having appealed the said order to this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which order temporarily set aside the order of the trial court. Hence, during the enforceability of this Court’s order, respondent’s request for petitioner to admit the genuineness and authenticity of the subject annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the truth and authenticity of the questioned annexes. At that point in time, would it have been malpractice for respondent to use petitioner’s admission as evidence against him in the legal separation case pending in the Regional Trial Court of Makati? Respondent submits it is- not malpractice.

Significantly, petitioner’s admission was done not thru his counsel but by Dr. Martin himself under oath. Such verified admission constitutes an affidavit, and, therefore, receivable in evidence against him. Petitioner became bound by his admission. For Cecilia to avail herself of her husband’s admission and use the same in her action for legal separation cannot be treated as malpractice.

13

Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a declaration that his use of the documents and papers for the purpose of securing Dr. Martin’s admission as to their genuiness and authenticity did not constitute a violation of the injunctive order of the trial court.  By no means does the decision in that case establish the admissibility of the documents and papers in question.

It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the writ of preliminary injunction issued by the trial court, it was only because, at the time he used the documents and papers, enforcement of the order of the trial court was temporarily restrained by this Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by petitioner against the trial court’s order was dismissed and, therefore, the prohibition against the further use of the documents and papers became effective again.

Indeed the documents and papers in question are inadmissible in evidence. The constitutional injunction declaring “the privacy of communication and correspondence [to be] inviolable”3 is no less applicable simply because it is the wife (who thinks herself aggrieved by her husband’s infidelity) who is the party against whom the constitutional provision is to be enforced. The only exception to the prohibition in the Constitution is if there is a “lawful order [from a] court or when public safety or order requires otherwise, as prescribed by law.”4 Any violation of this provision renders the evidence obtained inadmissible “for any purpose in any proceeding.”5

The intimacies between husband and wife do not justify any one of them in breaking the drawers and cabinets of the other and in ransacking them for any telltale evidence of marital infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as an individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it privileged. Neither husband nor wife may testify for or against the other without the consent of the affected spouse while the marriage subsists.6 Neither may be examined without the consent of the other as to any communication received in confidence by one from the other during the marriage, save for specified exceptions.7 But one thing is freedom of communication; quite another is a compulsion for each one to share what one knows with the other. And this has nothing to do with the duty of fidelity that each owes to the other.

WHEREFORE, the petition for review is DENIED for lack of merit.

PEOPLE OF THE PHILIPPINESv. CONWAY B. OMAWENG

1. CRIMINAL LAW; DANGEROUS DRUG ACT; ILLEGAL POSSESSION OF PROHIBITED DRUGS; PROOF OF OWNERSHIP THEREOF BY THE ACCUSED NOT REQUIRED. — The accused contends that the prosecution failed to prove that he is the owner of the marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was prosecuted for the dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not require that for one to be liable for participating in any of the proscribed transactions enumerated therein, he must be the owner of the prohibited drug. This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines pusher as "any person who sells, administers, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or who acts as a broker in any of such transactions, in violation of this Act. [Section 2 (m), R.A. No. 6425, as amended.] In People v. Alfonso, [186 SCRA (1990)] where the accused was charged with the unlawful transportation of marijuana under the aforesaid Section 4, this Court ruled that ownership is not a basic issue.

2. REMEDIAL LAW; EVIDENCE; CIRCUMSTANTIAL EVIDENCE COMBINATION THEREOF; WARRANTS A CONVICTION BEYOND REASONABLE DOUBT. — The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling

14

alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control, pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of all these circumstances is such as to produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by the accused, even gave rise to the presumption that he is the owner of the prohibited drug. [Section 3(j), Rule 131, Rules of Court.]

3. CONSTITUTIONAL LAW; BILL OF RIGHTS; RIGHT AGAINST UNREASONABLE SEARCH & SEIZURE; WHEN DEEMED WAIVED. — Accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. [Section 2, Article III, 1987 Constitution.] If one had been made, this Court would be the first to condemn it "as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court." [Rodriguez v. Villamiel, 65 Phil. 230 (1937).] He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and travelling bag. Thus, the accused waived his right against unreasonable searches and seizures As this Court stated in People v. Malasugui: (63 Phil. 221, 226 [1936]. See also Vda. de Garcia v. Locsin, 65 Phil. 689 [1938]; People v. Donato, 198 SCRA 130 [1991]; People v. Rodrigueza, 205 SCRA 791 [1992].)." . . When one voluntarily submits to a search or consents to have it made of (sic) his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly." Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the officers to seize the same; no warrant was necessary for such seizure. Besides, when said packages were identified by the prosecution witnesses and later on formally offered in evidence, the accused did not raise any objection whatsoever.

D E C I S I O NDAVIDE, JR., J.:

Accused Conway B. Omaweng was originally indicted for the violation of Section 4, Article II of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, in a criminal complaint filed with the Municipal Trial Court of Bontoc, Mountain Province on 12 September 1988. 1 Upon his failure to submit counter-affidavits despite the granting of an extension of time to do so, the court declared that he had waived his right to a preliminary investigation and, finding probable cause against the accused, ordered the elevation of the case to the proper court. 2 

On 14 November 1988, the Office of the Provincial Fiscal of Mountain Province filed an Information charging the accused with the violation of Section 47 Article II of the Dangerous Drugs Act of 1972, as amended. The accusatory portion thereof reads:chanrobles virtual lawlibrary

"That on or about September 12, 1988, at Dantay, Bontoc, Mountain Province, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully and feloniously dispatch in transit or transport in a Ford Fiera, owned and driven by him, 10 1/4 kilos of processed marijuana in powder form contained in al plastic bags of different sizes which were placed in a travelling bag destained (sic) and intended for delivery, disposition and sale in Sagada, Mountain Province, with full knowledge that said processed marijuana is (sic) prohibited drug or from which (sic) prohibited drug maybe manufactured.

CONTRARY TO LAW." 3 

The case was docketed as Criminal Case No. 713.

After his motion for reinvestigation was denied by the Provincial Fiscal, 4 the accused entered a plea of not guilty during his arraignment on 20 June 1989.

During the trial on the merits, the prosecution presented four (4) witnesses. The accused did not present any evidence other than portions of the Joint Clarificatory Sworn Statement, dated 23

15

December 1988, of prosecution witnesses Joseph Layong and David Fomocod.

On 21 March 1991, the trial court promulgated its Judgment 5 convicting the accused of the crime of transporting prohibited drugs penalized under Section 4, Article II of R.A. No. 6425, as amended. The dispositive portion of the decision reads:jgc:chanrobles.com.ph

"WHEREFORE, judgment is hereby rendered imposing upon the accused herein the penalty of life imprisonment and a fine of Twenty Five Thousand Pesos.

Pursuant to Sec. 20, Art. IV of the aforecited special law, the drugs subject of the crime are ordered confiscated and forfeited in favor of the Government. Accordingly, it is further directed that such drugs so confiscated and forfeited be destroyed without delay per existing rules and regulations on the matter.chanrobleslawlibrary :rednad

Costs against the accused.

SO ORDERED."6 

Hence, this appeal.

In the Appellant’s Brief, Accused imputes upon the trial court the commission of the following errors."I

. . . IN CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.

II

. . . IN NOT CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERS TO THE EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS CASE.

III

. . . IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF THE CONSTITUTIONAL RIGHT OF THE ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND SEIZURE." 7 

The appeal is without merit. The decision appealed from must be upheld.

After a careful review and evaluation of the evidence, We find to have been fully proven the following facts as summarized by the Solicitor General in the Brief for the Appellee. 8 

"In the morning of September 12, 1988, Joseph Layong, a PC constable with the Mt. Province PC Command at Bontoc, Mt. Province proceeded with other PC soldiers to Barrio Dantay, Bontoc and, per instruction of their officer, Capt. Eugene Martin, put up a checkpoint at the junction of the roads, one going to Sagada and the other to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and checked all vehicles that went through the checkpoint (TSN, April 5, 1990, p. 12).

At about 9:15 A.M., Layong and his teammate, Constable David Osborne Famocod (sic), saw and flagged down a cream-colored Ford Fiera bearing Plate No. ABT-634 coming from the BontocPoblacion and headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle was driven by appellant and had no passengers (TSN, November 9, 1989, pp. 4-5).

Layong and his companions asked permission to inspect the vehicle and appellant acceded to the request. (TSN, November 9, 1989, pp. 4-5). When they peered into the rear of the vehicle, they saw a travelling bag which was partially covered by the rim of a spare tire under the passenger seat on

16

the right side of the vehicle (TSN, November 9, 1989, pp. 6, 10, 11).chanrobles.com:cralaw:red

Layong and his companions asked permission to see the contents of the bag (TSN, November 9, 1989, p. 6). Appellant consented to the request but told them that it only contained some clothes (TSN, November 9, 1989, p. 6). When Layong opened the bag, he found that it contained forty-one (41) plastic packets of different sizes containing pulverized substances (TSN, November 9, 1989, pp. 7, 9).

Layong gave a packet to his team leader, constable David Osborne Fomocod, who, after sniffing the stuff concluded that it was marijuana (TSN, November 9, 1989, p. 16).

The PC constables, together with appellant, boarded the latter’s Ford Fiera and proceeded to the Bontocpoblacion to report the incident to the PC Headquarters (TSN, November 9, 1989, pp. 7-8) The prohibited drugs were surrendered to the evidence custodian, Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8).

Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La Trinidad, Benguet, who has conducted more than 2500 professional examinations of marijuana, shabu and cocaine samples, conducted two chemistry examinations of the substance contained in the plastic packets taken from appellant and found them to be positive for hashish or marijuana (TSN, October 24, 1990, pp. 3, 5-81)." 9 

Anent the first assigned error, the accused contends that the prosecution failed to prove that he is the owner of the marijuana found inside the travelling bag which he had in his vehicle, a Ford Fiera Proof of ownership is immaterial. Accused was prosecuted for the dispatching in transit or transporting of prohibited drugs pursuant to Section 4, Article II of R.A. No. 6425, as amended. This section does not require that for one to be liable for participating in any of the proscribed transactions enumerated therein, he must be the owner of the prohibited drug. It simply reads:

"SEC. 4. Sale, Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty of life imprisonment to death and a fine ranging from twenty thousand to thirty thousand pesos shall be imposed upon any person who, unless authorized by law, shall sell, administer, deliver, give away to another, distribute, dispatch in transit or transport any prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor, or should a prohibited drug involved in any offense under this Section be the proximate cause of the death of a victim thereof, the maximum penalty herein provided shall be imposed."cralaw virtua1aw library

This section penalizes the pusher, who need not be the owner of the prohibited drug. The law defines pusher as "any person who sells, administers, delivers, or gives away to another, on any terms whatsoever, or distributes, dispatches in transit or transports any dangerous drug or who acts as a broker in any of such transactions, in violation of this Act. 10 

In People v. Alfonso, 11 where the accused was charged with the unlawful transportation of marijuana under the aforesaid Section 4, this Court ruled that ownership is not a basic issue.

The facts, as proven by the prosecution, establish beyond cavil that the accused was caught in the act of transporting the prohibited drug or, in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral certainty by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he was travelling alone, and (e) the Ford Fiera in which he loaded the bag was under his absolute control, pursuant to Section 4, Rule 133 of the Rules of Court (on circumstantial evidence), the combination of all these circumstances is such as to produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence by the accused, even gave rise to the presumption that he is the owner of the prohibited drug. 12 

The second assigned error is devoid of merit. The declaration in the joint clarificatory sworn statement executed by the apprehending officers, that the marijuana subject of the case was

17

surreptitiously placed by an unknown person in the bag of the accused, is not supported by evidence. Said sworn statement cannot be used as a basis for exoneration because the very same officers who signed the same reiterated on the witness stand their statements in their original affidavit implicating the accused, both the criminal complaint before the Municipal Trial Court of Lontoc and the information in this case were based on this original affidavit. No probative value could be assigned to it not only because it was procured by the defense under questionable circumstances, but also because the affiants therein merely expressed their personal opinion. The trial court’s correct exposition on this point, to which nothing more may be added, deserves to be quoted,thus:

"From the portions of the ‘Joint Clarificatory Sworn Statement- of prosecution witnesses Layong and Fomocod cited (Exhs. "I" to "I-C" ; p 155, Record), the defense would want this Court to draw the inference that the accused Conway Omaweng is innocent as confirmed by no less than the persons who apprehended the suspect in flagranti (sic). In other words, that the said accused is not the owner of the contraband confiscated but someone else; that to (sic) mysterious individual placed the prohibited articles inside the travelling bag of the accused without the knowledge and consent of the latter; and that the identity of this shadowy third person is known by the PC/INP investigators. The isolated declarations, albeit under oath are much too asinine to be true and do not affect the credibilities of the witnesses — affiants and the truth of their affirmations on the stand. As gleaned from parts of the record of the reinvestigation of this case conducted by the Provincial Fiscal (Exhs "G" and "D" ; pp. 158 and 161, Record), it appears that Layong and Fomocod were prevailed upon to affix their signatures to (sic) the document styled as ‘Joint Clarificatory Sworn Statement’ by interested persons in a vain ploy to extricate the accused from the morass he got himself into. Testifying in open court, the same witnesses maintained the tenor of their original affidavit supporting the filing of the criminal complaint in the lower court (Exh. "C" ; p. 2, Record) No additional information was elicited from said witnesses during their examination from which it can reasonably be deduced that a third person instead of the accused is the culprit and that the suspect is being framed-up for a crime he did not commit. Nonetheless, granting arguendo that the declarations of Layong and Fomocod now the bone of contention, are on the level, the same are but mere opinions and conclusions without bases. Any which way, to believe that any person in his right mind owning several kilos of hot hashish worth tens of thousands of pesos would simply stash it away in the travelling bag of someone he has no previous agreement with is a mockery of common sense. And to think further that the PC/INP agents know of such fact yet they kept the vital information under ‘confidential Status’ (whatever that means in police parlance) while an innocent person is being prosecuted and practically in the shadow of the gallows for the offense would be stretching human credulity to the snapping point. By and large, the fact remains as the circumstances logically indicate that the accused Conway Omaweng has knowledge of the existence of the contraband inside his vehicle and he was caught red-handed transporting the hot stuff." 13 

The third assignment of error hardly deserves any consideration Accused was not subjected to any search which may be stigmatized as a violation of his Constitutional right against unreasonable searches and seizures. 14 If one had been made, this Court would be the first to condemn it "as the protection of the citizen and the maintenance of his constitutional rights is one of the highest duties and privileges of the Court." 15 He willingly gave prior consent to the search and voluntarily agreed to have it conducted on his vehicle and travelling bag. Prosecution witness Joseph Layongtestifiedthus:

"PROSECUTORAYOCHOK:Q When you and David Fomocod saw the travelling bag, what did you do?

A When we saw that travelling bag, we asked the driver if we could see the contents.

Q And what did or what was the reply of the driver, if there was any?

A He said ‘you can see the contents but those are only clothings (sic).’

Q When he said that, what did you do?

18

A We asked him if we could open and see it.

Q When you said that, what did he tell you?

A He said you can see it.

Q And when he said ‘you can see and open it,’ what did you do?

A When I went inside and opened the bag, I saw that it was not clothings (sic) that was contained in the bag.

Q And when you saw that it was not clothings (sic), what did you do?

A When I saw that the contents were not clothes, I took some of the contents and showed it to my companion Fomocod and when Fomocod smelled it, he said it was marijuana." 16 

This testimony was not dented on cross-examination or rebutted by the accused for he chose not to testify on his own behalf.

Thus, the accused waived his right against unreasonable searches and seizures As this Court stated in People v. Malasugui: 17 

". . . When one voluntarily submits to a search or consents to have it made of (sic) his person or premises, he is precluded from later complaining thereof (Cooley, Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure from unreasonable search may, like every right, be waived and such waiver may be made either expressly or impliedly."

Since in the course of the valid search forty-one (41) packages of drugs were found, it behooved the officers to seize the same; no warrant was necessary for such seizure. Besides, when said packages were identified by the prosecution witnesses and later on formally offered in evidence, the accused did not raise any objection whatsoever. Thus, in the accused’s Comments And/Or Objections To Offer of Evidence, 18 We merely find the following:

"EXHIBIT COMMENTS AND/OR OBJECTIONS

"A" The bag was not positively identified to be

the same bag allegedly found inside the

vehicle driven by the accused. The 

arresting officers failed to show any 

identifying marks; thug, said bag is an 

irrelevant evidence not admissible in court;

"A-1" to "A-40" Objected to also as irrelevant as the 40 

bags now being offered are not the same 

bags alleged in the information which is 41 

bags. The prosecution failed to proved (sic) 

beyond reasonable doubt that Exhibit "A-1" 

19

to "A-40" are the same bags allegedly taken 

from inside Exhibit "A" because what is 

supposed to be inside the bag are 41 bags 

and not 40 bags."cralaw virtua1aw library

x       x       x

WHEREFORE, the decision of Branch 36 of the Regional Trial t of Bontoc, Mountain Province of 21 March 1991 in Criminal Case No. 713 finding the accused CONWAY B. OMAWENG guilty beyond reasonable doubt of the crime charged, is hereby AFFIRMED.

Costs against the accused.

SPOUSES LEOPOLDO and MA. LUISA VEROY, Petitioners, vs. THE HON. WILLIAM L. LAYAGUE, Presiding Judge, Branch XIV, Regional Trial Court at Davao City; and BRIG. GEN. PANTALEON DUMLAO, Commanding General, PC-Criminal Investigation Service, 

This was originally a petition for certiorari, mandamus and prohibition under Rule 65 of the Rules of Court: certiorari, to review the Order of the respondent Judge dated October 2, 1990 denying herein petitioner's Motion for Hospital Confinement; mandamus, to compel respondent Judge to resolve petitioners' long pending motion for bail; and prohibition, to enjoin further proceedings on the ground that the legal basis therefore is unconstitutional for being violative of the due process and equal protection clauses of the Constitution.The facts of this case are as follows:

Petitioners are husband and wife who owned and formerly resided at No. 13 Isidro St., Skyline Village. Catalunan Grande, Davao City. When petitioner Leopoldo Veroy was promoted to the position of Assistant Administrator of the Social Security System sometime in June, 1988, he and his family transferred to 130 K-8th St., East Kamias, Quezon City, where they are presently residing. The care and upkeep of their residence in Davao City was left to two (2) houseboys, Jimmy Favia and Eric Burgos, who had their assigned quarters at a portion of the premises. The Veroys would occasionally send money to Edna Soguilon for the salary of the said houseboys and other expenses for the upkeep of their house. While the Veroys had the keys to the interior of the house, only the key to the kitchen, where the circuit breakers were located, was entrusted to Edna Soguilon to give her access in case of an emergency. Hence, since 1988, the key to the master's bedroom as well as the keys to the children's rooms were retained by herein Petitioners so that neither Edna Soguilon nor the caretakers could enter the house.

On April 12, 1990, Capt. Reynaldo Obrero of the Talomo Patrol Station, PC/INP, acting upon a directive issued by Metrodiscom Commander Col. Franco Calida, raided the house of herein petitioners in Davao City on information that the said residence was being used as a safehouse of rebel soldiers. They were able to enter the yard with the help of the caretakers but did not enter the house since the owner was not present and they did not have a search warrant. Petitioner Ma. Luisa was contacted by telephone in her Quezon City residence by Capt. Obrero to ask permission to search the house in Davao City as it was reportedly being used as a hideout and recruitment center of rebel soldiers. Petitioner Ma. Luisa Veroy responded that she is flying to Davao City to witness the search but relented if the search would not be conducted in the presence of Major Ernesto Macasaet, an officer of the PC/INP, Davao City and a long time family friend of the Veroys. The authority given by Ma. Luisa Veroy was relayed by Capt. Obrero to Major Macasaet who answered that Ma. Luisa Veroy has called him twice by telephone on the matter and that the permission was given on the condition that the search be conducted in his presence.

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The following day, Capt. Obrero and Major Macasaet met at the house of herein petitioners in Skyline Village to conduct the search pursuant to the authority granted by petitioner Ma. Luisa Veroy. The caretakers facilitated their entry into the yard, and using the key entrusted to Edna Soguilon, they were able to gain entrance into the kitchen. However, a locksmith by the name of George Badiang had to be employed to open the padlock of the door leading to the children's room. Capt. Obrero and Major Macasaet then entered the children's room and conducted the search. Capt. Obrero recovered a .45 cal. handgun with a magazine containing seven (7) live bullets in a black clutch bag inside an unlocked drawer. Three (3) half-full jute sacks containing printed materials of RAM-SFP (samples of which were attached as Annexes "H" and "H-1" of the petition) (Rollo, pp. 49-55) were also found in the children's room. A search of the children's recreation and study area revealed a big travelling bag containing assorted polo shirts, men's brief, two (2) pieces polo barong and short sleeve striped gray polo. sweat shirt, two (2) pairs men's socks, a towel made in U.S.A., one blanket, a small black bag, Gandhi brand, containing a book entitled "Islamic Revolution Future Path of the Nation", a road map of the Philippines, a telescope, a plastic bag containing assorted medicines and religious pamphlets was found in the master's bedroom. Sgt. Leo Justalero was instructed by Capt. Obrero to make an inventory and receipt of the articles seized, in the house (Annex "F" of the Petition, Rollo, p. 48). Said receipt was signed by Eric Burgos, one of the caretakers, and George Badiang, the locksmith, as witnesses. Sgt. Justalero turned over the articles to Sgt. Rodolfo Urbano at the police station.

The case was referred for preliminary investigation to Quezon City Assistant Prosecutor Rodolfo Ponferrada who was designated Acting Provincial Prosecutor for Davao City by the Department of Justice through Department Order No. 88 dated May 16, 1990. In a resolution dated August 6, 1990, Fiscal Ponferrada recommended the filing of an information against herein petitioners for Violation of Presidential Decree No. 1866 (Illegal Possession of Firearms and Ammunitions in Furtherance of Rebellion) (Annex "L" of the Petition, Rollo, p. 71). Hence, on August 8, 1990. an Information for the said offense was filed by the Office of the City Prosecutor of Davao City before the Regional Trial Court, 11th Judicial Region, Davao City, docketed as Criminal Case No. 20595-90 and entitled "People of the Philippines v. Atty. Leopoldo Veroy and Mrs. Maria Luisa Veroy" (Annex "K" of the Petition, Rollo, p. 70). No bail was recommended by the prosecution.

The aforementioned resolution dated August 6, 1990 of Fiscal Ponferrada was received by the petitioners on August 13, 1990. On the same day, the latter filed a Motion for Bail before herein respondent Judge Layague which was denied on August 17, 1990 for being premature since at that time, petitioners had not yet been arrested. Despite the fact that the warrants for their arrest have not yet been served on them, herein petitioners voluntarily surrendered themselves to Brig. Gen. Pantaleon Dumlao, PC-CIS Chief, since it was the CIS that initiated the complaint. However, the latter refused to receive them on the ground that his office has not yet received copies of their warrants of arrest.

In the meantime, on August 15, 1990, herein petitioners were admitted to the St. Luke's Hospital for various ailments brought about or aggravated by the stress and anxiety caused by the filing of the criminal complaint. On August 17, 1990, Brig. Gen. Dumlao granted their request that they be allowed to be confined at the hospital and placed under guard thereat.

In an Indorsement dated August 20, 1990, the CIS through Capt. Benjamin de los Santos, made its return to the trial court informing the latter of the voluntary surrender of herein petitioners and the fact that they were under hospital confinement. Herein Petitioner reiterated their Motion for Bail. In an Order dated August 24, 1990 (Annex "M" of the Petition, Rollo, p. 74), the hearing for the Motion for Ball was set for August 31, 1990 to enable the prosecution to present evidence it opposition to said motion. The prosecution filed its written opposition (Annex "N" of the Petition, Rollo, p. 75) on August 28, 1990, arguing that the evidence of petitioners' guilt was strong and thereafter presented its evidence.

On September 21, 1990, respondent Judge required the CIS to produce the bodies of herein petitioners on October 1, 1990 for arraignment (Annex "O" of the Petition, Rollo, p. 76). Upon their arraignment, herein Petitioners entered a plea of not guilty and filed an "Urgent Motion for Hospital

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Confinement" (Annex "OO" of the Petition Rollo, p. 77) which was denied by the court in its Order dated October 2, 1990 (Annex "P" of the Petition, Rollo, p. 80). It likewise ordered their commitment at the Davao City Rehabilitation Center, Ma-a, Davao City pending trial on the merits. Herein petitioners argued orally a motion for reconsideration which was opposed by the prosecution. At the conclusion thereof, the court a quo issued a second order annex "Q" of the Petition,Rollo, p. 83) denying then motion for reconsideration and as to the alternative prayer to reopen the motion for hospital confinement, set the continuance thereof to October 17, 1990. It was further ordered that the petitioners shall remain under the custody of the PC-CIS pending resolution of the case.

Meanwhile, petitioners were returned to the St. Luke's Hospital where their physical condition remained erratic. On or about October 18, 1990, herein petitioners were informed that Brig. Gen. Dumlao had issued a directive for their transfer from the St. Luke's Hospital to Camp Crame on the basis of the October 2, 1990 Order (Annex "Q" of the Petition, Rollo, p. 83). Petitioners made representations that the tenor of the court order warranted maintenance of the status quo, i.e., they were to continue their hospital confinement. However, Brig, Gen. Dumlao informed them that unless otherwise restrained by the court, they would proceed with their transfer pursuant to the order of the trial court.

Hence, this petition on October 25, 1990 this Court issued a Temporary Restraining Order, effective immediately and continuing until further orders from this Court, ordering: (a) respondent Hon. William L. Layague to refrain from further proceeding with petitioners' "Motion for Hospital Confinement" in Criminal Case No. 20595-90 entitled "People of the Philippines v. Leopoldo Veroy and Ma. Luisa Veroy"; and (b) respondent Brig. Gen. Pantaleon Dumlao to refrain from transferring petitioners from the St. Luke's Hospital (Rollo, pp. 84-A to 84-C).

On November 2, 1990, respondent Judge issued an order denying petitioners' Motion for Bail (Annex "A" of the Second Supplemental Petition, Rollo, p. 133). Petitioners filed a Supplemental Petition on November 7, 1990 (Rollo, P. 105) and a Second Supplemental Petition on November 16, 1990 (Rollo, p. 120) which sought to review the order of the trial court dated November 2, 1990 denying their petition for bail.

Acting on the Supplemental Petition filed by Petitioners and taking into consideration several factors such as: a) that the possibility that they will flee or evade the processes of the court is fairly remote; b) their poor medical condition; and c) the matters in their Second Supplemental Petition especially since the prosecution's evidence refers to constructive possession of the disputed firearms in Davao City through the two (2) caretakers while petitioners lived in Manila since 1988, this Court, on November 20, 1990, granted petitioners' provisional liberty and set the bail bond at P20,000.00 each (Rollo, p. 141). Petitioners posted a cash bond in the said amount on November 23, 1990 (Rollo, pp. 143-145).

The petition was given due course on July 16, 1991 (Rollo, p. 211). Respondents adopted their Comment dated December 28, 1990 (Rollo, pp. 182-191) as their Memorandum while, petitioners filed their Memorandum on September 9, 1991 (Rollo, pp. 218-269).

As submitted by the respondents, and accepted by petitioners, the petition formandamus to compel respondent Judge to resolve petitioners' Motion for Bail, and the petition for certiorari to review the order of respondent judge initially denying their Motion for Hospital Confinement, were rendered moot and academic by the resolutions of this Court dated November 20, 1990 and October 25, 1990, respectively. What remains to be resolved is the petition for prohibition where petitioners raised the following issues:

1. Presidential Decree No. 1866, or at least the third paragraph of Section 1 thereof, is unconstitutional for being violative of the due process and equal protection clauses of the Constitution;

2. Presidential Decree No. 1866 has been repealed by Republic Act No. 6968;

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3. Assuming the validity of Presidential Decree No. 1866 the respondent judge gravely abused his discretion in admitting in evidence certain articles which were clearly inadmissible for being violative of the prohibition against unreasonable searches and seizures.

The issue of constitutionality of Presidential Decree No. 1866 has been laid to rest in the case of Misolas v. Panga, G.R. No. 83341, January 30, 1990 (181 SCRA 648), where this Court held that the declaration of unconstitutionality of the third paragraph of Section 1 of Presidential Decree No. 1866 is wanting in legal basis since it is neither a bill of attainder nor does it provide a possibility of a double jeopardy.

Likewise, petitioners' contention that Republic Act 6968 has repealed Presidential Decree No. 1866 is bereft of merit. It is a cardinal rule of statutory construction that where the words and phrases of a statute are not obscure or ambiguous. its meaning and the intention of the legislature must be determined from the language employed, and where there is no ambiguity in the words, there is no room for construction (Provincial Board of Cebu v. Presiding Judge of Cebu, CFI, Br. IV, G.R. No. 34695, March 7, 1989 [171 SCRA 1]). A perusal of the aforementioned laws would reveal that the legislature provided for two (2) distinct offenses: (1) illegal possession of firearms under Presidential Decree No. 1866; and (2) rebellion, coup d' etat, sedition and disloyalty under Republic Act 6968; evidently involving different subjects which were not clearly shown to have eliminated the others.

But petitioners contend that Section 1 of Presidential Decree No. 1866 is couched in general or vague terms. The terms "deal in", "acquire", "dispose" or "possess" are capable of various interpretations such that there is no definiteness as to whether or not the definition includes "constructive possession" or how the concept of constructive possession should be applied. Petitioners were not found in actual possession of the firearm and ammunitions. They were in Quezon City while the prohibited articles were found in Davao City. Yet they were being charged under Presidential Decree No. 1866 upon the sole circumstance that the house wherein the items were found belongs to them (Memorandum for Petitioners, Rollo, pp. 242-244).

Otherwise stated, other than their ownership of the house in Skyline Village, there was no other evidence whatsoever that herein petitioners possessed or had in their control the items seized (Ibid., pp. 248-250). Neither was it shown that they had the intention to possess the Firearms or to further rebellion (Ibid., P. 252).

In a similar case, the revolver in question was found in appellant's store and the question arouse whether he had possession or custody of it within the meaning of the law.

This Court held that:

The animus possidendi must be proved in opium cases where the prohibited drug was found on the premises of the accused and the same rule is applicable to the possession of firearms. The appellant denied all knowledge of the existence of the revolver, and the Government's principal witness stated that there were a number of employees in the store. The only testimony which tends to show that the appellant had the possession or custody of this revolver is the inference drawn from the fact that it was found in his store, but we think that this inference is overcome by the positive testimony of the appellant, when considered with the fact that there were a number of employees in the store, who, of course, could have placed the revolver in the secret place where it was found without the knowledge of the appellant. At least there is a very serious doubt whether he knew of the existence of this revolver. In such case the doubt must be resolved in favor of the appellant. (U.S. v. Jose and Tan Bo., 34 Phil. 724 [1916])

But more importantly, petitioners question the admissibility in evidence of the articles seized in violation of their constitutional right against unreasonable search and seizure.

Petitioners aver that while they concede that Capt. Obrero had permission from Ma. Luisa Veroy to break open the door of their residence, it was merely for the purpose of ascertaining thereat the

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presence of the alleged "rebel" soldiers. The permission did not include any authority to conduct a room to room search once inside the house. The items taken were, therefore, products of an illegal search, violative of their constitutional rights As such, they are inadmissible in evidence against them.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures (Article III, Section 2 of the 1987 Constitution). However, the rule that searches and seizures must be supported by a valid warrant is not an absolute one. Among the recognized exceptions thereto are: (1) a search incidental to an arrest; (2) a search of a moving vehicle; and (3) seizure of evidence in plain view (People v. Lo Ho Wing, G.R. No. 88017, January 21, 1991 [193 SCRA 122]).

None of these exceptions pertains to the case at bar. The reason for searching the house of herein petitioners is that it was reportedly being used as a hideout and recruitment center for rebel soldiers. While Capt. Obrero was able to enter the compound, he did not enter the house because he did not have a search warrant and the owners were not present. This shows that he himself recognized the need for a search warrant, hence, he did not persist in entering the house but rather contacted the Veroys to seek permission to enter the same. Permission was indeed granted by Ma. Luisa Veroy to enter the house but only to ascertain the presence of rebel soldiers. Under the circumstances it is undeniable that the police officers had ample time to procure a search warrant but did not.

In a number of cases decided by this Court, (Guazon v. De Villa, supra.; People v. Aminnudin, G.R. No. L-74869, July 6, 1988 [163 SCRA 402]; Alih v. Castro, G.R. No. L-69401, June 23, 1987 [151 SCRA 279]), warrantless searches were declared illegal because the officials conducting the search had every opportunity to secure a search Warrant. The objects seized, being products of illegal searches, were inadmissible in evidence in the criminal actions subsequently instituted against the accused-appellants (People v. Cendana, G.R. No. 84715, October 17, 1990 [190 SCRA 538]).

Undeniably, the offense of illegal possession of firearms is malumprohibitum but it does not follow that the subject thereof is necessarily illegal per se. Motive is immaterial inmalaprohibita but the subjects of this kind of offense may not be summarily seized simply because they are prohibited. A search warrant is still necessary. Hence, the rule having been violated and no exception being applicable, the articles seized were confiscated illegally and are therefore protected by the exclusionary principle. They cannot be used as evidence against the petitioners in the criminal action against them for illegal possession of firearms. (Roan v. Gonzales, 145 SCRA 689-690 [1986]). Besides, assuming that there was indeed a search warrant, still in mala prohibita, while there is no need of criminal intent, there must be knowledge that the same existed. Without the knowledge or voluntariness there is no crime.

PREMISES CONSIDERED, the petition as granted and the criminal case against the petitioners for illegal possession of firearms is DISMISSED.

THE PEOPLE OF THE PHILIPPINES, vs. MIKAEL MALMSTEDT, 

In an information dated 15 June 1989, accused-appellant Mikael Malmstedt (hereinafter referred to as the accused) was charged before the Regional Trial Court (RTC) of La Trinidad, Benguet, Branch 10, in Criminal Case No. 89-CR-0663, for violation of Section 4, Art. II of Republic Act 6425, as amended, otherwise known as the Dangerous Drugs Act of 1972, as amended. The factual background of the case is as follows:

Accused Mikael Malmstedt, a Swedish national, entered the Philippines for the third time in December 1988 as a tourist. He had visited the country sometime in 1982 and 1985.

In the evening of 7 May 1989, accused left for Baguio City. Upon his arrival thereat in the morning of the following day, he took a bus to Sagada and stayed in that place for two (2) days.

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At around 7:00 o'clock in the morning of 11 May 1989, accused went to the Nangonogan bus stop in Sagada to catch the first available trip to Baguio City. From Baguio City, accused planned to take a late afternoon trip to Angeles City, then proceed to Manila to catch his flight out of the country, scheduled on 13 May 1989. From Sagada, accused took a Skyline bus with body number 8005 and Plate number AVC 902. 1

At about 8: 00 o'clock in the morning of that same day (11 May 1989), Captain Alen Vasco, the Commanding Officer of the First Regional Command (NARCOM) stationed at Camp Dangwa, ordered his men to set up a temporary checkpoint at Kilometer 14, Acop, Tublay, Mountain Province, for the purpose of checking all vehicles coming from the Cordillera Region. The order to establish a checkpoint in the said area was prompted by persistent reports that vehicles coming from Sagada were transporting marijuana and other prohibited drugs. Moreover, information was received by the Commanding Officer of NARCOM, that same morning, that a Caucasian coming from Sagada had in his possession prohibited drugs. 2

The group composed of seven (7) NARCOM officers, in coordination with Tublay Police Station, set up a checkpoint at the designated area at about 10:00 o'clock in the morning and inspected all vehicles coming from the Cordillera Region.

At about 1:30 o'clock in the afternoon, the bus where accused was riding was stopped. Sgt. Fider and CIC Galutan boarded the bus and announced that they were members of the NARCOM and that they would conduct an inspection. The two (2) NARCOM officers started their inspection from the front going towards the rear of the bus. Accused who was the sole foreigner riding the bus was seated at the rear thereof.

During the inspection, CIC Galutan noticed a bulge on accused's waist. Suspecting the bulge on accused's waist to be a gun, the officer asked for accused's passport and other identification papers. When accused failed to comply, the officer required him to bring out whatever it was that was bulging on his waist. The bulging object turned out to be a pouch bag and when accused opened the same bag, as ordered, the officer noticed four (4) suspicious-looking objects wrapped in brown packing tape, prompting the officer to open one of the wrapped objects. The wrapped objects turned out to contain hashish, a derivative of marijuana.

Thereafter, accused was invited outside the bus for questioning. But before he alighted from the bus, accused stopped to get two (2) travelling bags from the luggage carrier.

Upon stepping out of the bus, the officers got the bags and opened them. A teddy bear was found in each bag. Feeling the teddy bears, the officer noticed that there were bulges inside the same which did not feel like foam stuffing. It was only after the officers had opened the bags that accused finally presented his passport.

Accused was then brought to the headquarters of the NARCOM at Camp Dangwa, La Trinidad, Benguet for further investigation. At the investigation room, the officers opened the teddy bears and they were found to also contain hashish. Representative samples were taken from the hashish found among the personal effects of accused and the same were brought to the PC Crime Laboratory for chemical analysis.

In the chemistry report, it was established that the objects examined were hashish. a prohibited drug which is a derivative of marijuana. Thus, an information was filed against accused for violation of the Dangerous Drugs Act.

During the arraignment, accused entered a plea of "not guilty." For his defense, he raised the issue of illegal search of his personal effects. He also claimed that the hashish was planted by the NARCOM officers in his pouch bag and that the two (2) travelling bags were not owned by him, but were merely entrusted to him by an Australian couple whom he met in Sagada. He further claimed that the Australian couple intended to take the same bus with him but because there were no more

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seats available in said bus, they decided to take the next ride and asked accused to take charge of the bags, and that they would meet each other at the Dangwa Station.

Likewise, accused alleged that when the NARCOM officers demanded for his passport and other Identification papers, he handed to one of the officers his pouch bag which was hanging on his neck containing, among others, his passport, return ticket to Sweden and other papers. The officer in turn handed it to his companion who brought the bag outside the bus. When said officer came back, he charged the accused that there was hashish in the bag. He was told to get off the bus and his picture was taken with the pouch bag placed around his neck. The trial court did not give credence to accused's defense.

The claim of the accused that the hashish was planted by the NARCOM officers, was belied by his failure to raise such defense at the earliest opportunity. When accused was investigated at the Provincial Fiscal's Office, he did not inform the Fiscal or his lawyer that the hashish was planted by the NARCOM officers in his bag. It was only two (2) months after said investigation when he told his lawyer about said claim, denying ownership of the two (2) travelling bags as well as having hashish in his pouch bag.

In a decision dated 12 October 1989, the trial court found accused guilty beyond reasonable doubt for violation of the Dangerous Drugs Act, specifically Section 4, Art. II of RA 6425, as amended. 3 The dispositive portion of the decision reads as follows:

WHEREFORE, finding the guilt of the accused Mikael Malmstedt established beyond reasonable doubt, this Court finds him GUILTY of violation of Section 4, Article 11 of Republic Act 6425, as amended, and hereby sentences him to suffer the penalty of life imprisonment and to pay a fine of Twenty Thousand Pesos (P20,000.00), with subsidiary imprisonment in case of insolvency and to pay the costs.

Let the hashish subject of this case be turned over to the First Narcotics Regional Unit at Camp Bado; Dangwa, La Trinidad Benguet for proper disposition under Section 20, Article IV of Republic Act 6425, as amended.

SO ORDERED. 4

Seeking the reversal of the decision of the trial court finding him guilty of the crime charged, accused argues that the search of his personal effects was illegal because it was made without a search warrant and, therefore, the prohibited drugs which were discovered during the illegal search are not admissible as evidence against him.

The Constitution guarantees the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures. 5 However, where the search is made pursuant to a lawful arrest, there is no need to obtain a search warrant. A lawful arrest without a warrant may be made by a peace officer or a private person under the following circumstances. 6

Sec. 5 Arrest without warrant; when lawful. –– A peace officer or a private person may, without a warrant, arrest a person:

(a) When, in his presence, the person to be arrested has committed is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined

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while his case is pending, or has escaped while being transferred from one confinement to another.

In cases falling under paragraphs (a) and (b) hereof, the person arrested without a warrant shall be forthwith delivered to the nearest police station or jail, and he shall be proceeded against in accordance with Rule 112, Section 7. (6a 17a).

Accused was searched and arrested while transporting prohibited drugs (hashish). A crime was actually being committed by the accused and he was caught in flagrante delicto. Thus, the search made upon his personal effects falls squarely under paragraph (1) of the foregoing provisions of law, which allow a warrantless search incident to a lawful arrest. 7

While it is true that the NARCOM officers were not armed with a search warrant when the search was made over the personal effects of accused, however, under the circumstances of the case, there was sufficient probable cause for said officers to believe that accused was then and there committing a crime.

Probable cause has been defined as such facts and circumstances which could lead a reasonable, discreet and prudent man to believe that an offense has been committed, and that the objects sought in connection with the offense are in the place sought to be searched. 8 The required probable cause that will justify a warrantless search and seizure is not determined by any fixed formula but is resolved according to the facts of each case. 9

Warrantless search of the personal effects of an accused has been declared by this Court as valid, because of existence of probable cause, where the smell of marijuana emanated from a plastic bag owned by the accused, 10or where the accused was acting suspiciously, 11 and attempted to flee. 12

Aside from the persistent reports received by the NARCOM that vehicles coming from Sagada were transporting marijuana and other prohibited drugs, their Commanding Officer also received information that a Caucasian coming from Sagada on that particular day had prohibited drugs in his possession. Said information was received by the Commanding Officer of NARCOM the very same morning that accused came down by bus from Sagada on his way to Baguio City.

When NARCOM received the information, a few hours before the apprehension of herein accused, that a Caucasian travelling from Sagada to Baguio City was carrying with him prohibited drugs, there was no time to obtain a search warrant. In the Tangliben case, 13 the police authorities conducted a surveillance at the Victory Liner Terminal located at Bgy. San Nicolas, San Fernando Pampanga, against persons engaged in the traffic of dangerous drugs, based on information supplied by some informers. Accused Tangliben who was acting suspiciously and pointed out by an informer was apprehended and searched by the police authorities. It was held that when faced with on-the-spot information, the police officers had to act quickly and there was no time to secure a search warrant.

It must be observed that, at first, the NARCOM officers merely conducted a routine check of the bus (where accused was riding) and the passengers therein, and no extensive search was initially made. It was only when one of the officers noticed a bulge on the waist of accused, during the course of the inspection, that accused was required to present his passport. The failure of accused to present his identification papers, when ordered to do so, only managed to arouse the suspicion of the officer that accused was trying to hide his identity. For is it not a regular norm for an innocent man, who has nothing to hide from the authorities, to readily present his identification papers when required to do so?

The receipt of information by NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession, plus the suspicious failure of the accused to produce his passport, taken together as a whole, led the NARCOM officers to reasonably believe that the accused was trying to hide something illegal from the authorities. From these circumstances arose a probable cause which justified the warrantless search that was made on the personal effects of the accused. In other

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words, the acts of the NARCOM officers in requiring the accused to open his pouch bag and in opening one of the wrapped objects found inside said bag (which was discovered to contain hashish) as well as the two (2) travelling bags containing two (2) teddy bears with hashish stuffed inside them, were prompted by accused's own attempt to hide his identity by refusing to present his passport, and by the information received by the NARCOM that a Caucasian coming from Sagada had prohibited drugs in his possession. To deprive the NARCOM agents of the ability and facility to act accordingly, including, to search even without warrant, in the light of such circumstances, would be to sanction impotence and ineffectiveness in law enforcement, to the detriment of society.

WHEREFORE, premises considered, the appealed judgment of conviction by the trial court is hereby AFFIRMED. Costs against the accused-appellant.

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. AGPANGA LIBNAO y KITTEN and ROSITA NUNGA y VALENCIA, accused.

Before us is an appeal from the Decision dated November 19, 1998 of the Regional Trial Court, Branch 65, Tarlac City, finding appellant AgpangaLibnao and her co-accused Rosita Nunga guilty of violating Article II, Section 4 of R.A. No. 6425, otherwise known as the Dangerous Drugs Act of 1972.[1] For their conviction, each was sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos.

Appellant and her co-accused were charged under the following Information:

“That on or about October 20, 1996 at around 1:00 o’clock dawn, in the Municipality of Tarlac, Province of Tarlac, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and helping with one another, without being lawfully authorized, did then and there willfully, unlawfully and feloniously make delivery/transport with intent to sell marijuana leaves wrapped in a transparent plastic weighing approximately eight (8) kilos, which is in violation of Section 4, Article II of RA 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended.

CONTRARY TO LAW.”[2]

During their arraignment, both entered a plea of Not Guilty.  Trial on the merits ensued.It appears from the evidence adduced by the prosecution that in August of 1996, intelligence

operatives of the Philippine National Police (PNP) stationed in Tarlac, Tarlac began conducting surveillance operation on suspected drug dealers in the area.  They learned from their asset that a certain woman from Tajiri, Tarlac and a companion from Baguio City were transporting illegal drugs once a month in big bulks.

On October 19, 1996, at about 10 o’clock in the evening, Chief Inspector Benjamin Arceo, Tarlac Police Chief, held a briefing in connection with a tip which his office received that the two drug pushers, riding in a tricycle, would be making a delivery that night.  An hour later, the Police Alert Team installed a checkpoint in Barangay Salapungan to apprehend the suspects.  Witness SPO1 Marlon Gamotea, PO3 Florante Ferrer and SPO3 Roberto Aquino were assigned to man the checkpoint.

At about 1:00 o’clock in the morning of the following day, SPO1 Gamotea and PO3 Ferrer flagged down a passing tricycle.  It had two female passengers seated inside, who were later identified as the appellant AgpangaLibnao and her co-accused Rosita Nunga. [3] In front of them was a black bag. Suspicious of the black bag and the two’s uneasy behavior when asked about its ownership and content, the officers invited them to Kabayan Center No.2 located at the same barangay.  They brought with them the black bag.

Upon reaching the center, PO3 Ferrer fetched Barangay Captain Roy Pascual to witness the opening of the black bag. In the meantime, the two women and the bag were turned over to the investigator on duty, SPO3 Arthur Antonio.  As soon as the barangay captain arrived, the black bag was opened in the presence of the appellant, her co-accused and personnel of the center.  Found

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inside it were eight bricks of leaves sealed in plastic bags and covered with newspaper.  The leaves were suspected to be marijuana.

To determine who owns the bag and its contents, SPO3 Antonio interrogated the two.  Rosita Nunga stated that it was owned by the appellant.  The latter, in turn, disputed this allegation.  Thereafter, they were made to sign a confiscation receipt without the assistance of any counsel, as they were not informed of their right to have one.  During the course of the investigation, not even close relatives of theirs were present.

The seized articles were later brought to the PNP Crime Laboratory in San Fernando, Pampanga on October 23, 1996. Forensic Chemist Daisy P. Babu conducted a laboratory examination on them. She concluded that the articles were marijuana leaves weighing eight kilos.[4]

For their part, both accused denied the accusation against them.  Rosita Nunga testified that in the evening of October 19,1996, she went to buy medicine for her ailing child at a pharmacy near the Tarlac Provincial Hospital.  The child was suffering from diarrhea, occasioned by abdominal pain.  To return to their house, she boarded a tricycle bound for Barangay Tariji, where she resides. Along the way, the tricycle she was riding was flagged down by a policeman at a checkpoint in Barangay Salapungan.  She was taken aback when the officer invited her to the Kabayan Center.  It was there that she was confronted with the black bag allegedly containing eight bricks of marijuana leaves.  She disputed owning the bag and knowing its contents.  She also denied sitting beside the appellant in the passenger’s seat inside the tricycle, although she admitted noticing a male passenger behind the driver.

Remarkably, appellant did not appear in court and was only represented by her lawyer.  The latter marked and submitted in evidence an affidavit executed by one Efren Gannod, a security guard of Philippine Rabbit Bus Lines in Tarlac, Tarlac.  The sworn statement declared that at about 0220H on October 20, 1996, SPO2 Antonio arrived at their terminal and arrested a certain woman who boarded their Bus No. 983.  The incident was recorded in the company’s logbook. Gannod, however, was not presented in court to attest that the woman referred in his affidavit was the appellant.

After trial, the court convicted appellant and her co-accused Rosita Nunga, thus:

“WHEREFORE, finding both accused guilty beyond reasonable doubt  of the offense of violation of Article II, Section 4 of RA 6425 in relation to RA 7659, they are hereby sentenced to suffer an imprisonment of reclusion perpetua and to pay a fine of two million pesos.

SO ORDERED.”[5]

Aggrieved by the verdict, appellant interposed the present appeal. In her brief, she assigned the following errors:

“1. The Honorable Regional Trial Court failed to appreciate the contention of the defense that the right of accused against illegal and unwarranted arrest and search was violated by the police officers who arrested both accused.

2. The Honorable Court failed to appreciate the contention of the defense that the right of the accused to custodial investigation was deliberately violated by the peace officers who apprehended and investigated the accused.

3. The Honorable Court miserably failed to evaluate the material inconsistencies in the testimonies of the prosecution’s witnesses which inconsistencies cast doubt and make incredible the contention and version of the prosecution.

4. The Honorable Court gravely abused its discretion when it appreciated and considered the documentary and object evidence of the prosecution not formally offered amounting to ignorance of the law.”[6]

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We are not persuaded by these contentions; hence, the appeal must be dismissed.In arguing that her arrest was unlawful, appellant capitalizes on the absence of a warrant for

her arrest.  She contends that at the time she was apprehended by the police officers, she was not committing any offense but was merely riding a tricycle.  In the same manner, she impugns the search made on her belongings as illegal as it was done without a valid warrant or under circumstances when warrantless search is permissible.  Consequently, any evidence obtained therein is inadmissible against her.

These arguments fail to impress.  The general rule is that a search may be conducted by law enforcers only on the strength of a search warrant validly issued by a judge as provided in Article III, Section 2 of the 1987 Constitution, thus:

“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 and 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.”[7]

The constitutional guarantee is not a blanket prohibition against all searches and seizures as it operates only against “unreasonable” searches and seizures.  Searches and seizures are as a rule unreasonable unless authorized by a validly issued search warrant or warrant of arrest.  Thus, the fundamental protection accorded by the search and seizure clause is that between persons and police must stand the protective authority of a magistrate clothed with power to issue or refuse to issue search warrants and warrants of arrest.[8]

Be that as it may, the requirement that a judicial warrant must be obtained prior to the carrying out of a search and seizure is not absolute.  There are certain familiar exceptions to the rule, one of which relates to search of moving vehicles.[9] Warrantless search and seizure of moving vehicles are allowed in recognition of the impracticability of securing a warrant under said circumstances as the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant may be sought.[10] Peace officers in such cases, however, are limited to routine checks where the examination of the vehicle is limited to visual inspection. [11] When a vehicle is stopped and subjected to an extensive search, such would be constitutionally permissible only if the officers made it upon probable cause, i.e., upon a belief, reasonably arising out of circumstances known to the seizing officer, that an automobile or other vehicle contains as item, article or object which by law is subject to seizure and destruction.[12]

In earlier decisions, we held that there was probable cause in the following instances: (a) where the distinctive odor of marijuana emanated from the plastic bag carried by the accused; [13] (b) where an informer positively identified the accused who was observed to be acting suspiciously;[14] (c) where the accused who were riding a jeepney were stopped and searched by policemen who had earlier received confidential reports that said accused would transport a quantity of marijuana;[15] (d) where Narcom agents had received information that a Caucasian coming from Sagada, Mountain Province had in his possession prohibited drugs and when the Narcom agents confronted the accused Caucasian because of a conspicuous bulge in his waistline, he failed to present his passport and other identification papers when requested to do so;[16] (f) where the moving vehicle was stopped and searched on the basis of intelligence information and clandestine reports by a deep penetration agent or spy -- one who participated in the drug smuggling activities of the syndicate to which the accused belong -- that said accused were bringing prohibited drugs into the country;[17] (g) where the arresting officers had received a confidential information that the accused, whose identity as a drug distributor was established in a previous test-buy operation, would be boarding MV Dona Virginia and probably carrying shabu with him; [18] (h) where police officers received an information that the accused, who was carrying a suspicious-looking gray luggage bag, would transport marijuana in a bag to Manila;[19] and (i) where the appearance of the accused and the color of the bag he was carrying fitted the description given by a civilian asset.[20]

The warrantless search in the case at bench is not bereft of a probable cause.  The Tarlac Police Intelligence Division had been conducting surveillance operation for three months in the

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area.  The surveillance yielded the information that once a month, appellant and her co-accused Rosita Nunga transport drugs in big bulks.  At 10:00 pm of October 19, 1996, the police received a tip that the two will be transporting drugs that night riding a tricycle.  Surely, the two were intercepted three hours later, riding a tricycle and carrying a suspicious-looking black bag, which possibly contained the drugs in bulk.  When they were asked who owned it and what its content was, both became uneasy.  Under these circumstances, the warrantless search and seizure of appellant’s bag was not illegal.

It is also clear that at the time she was apprehended, she was committing a criminal offense.  She was making a delivery or transporting prohibited drugs in violation of Article II, Section 4 of R.A. No. 6425. Under the Rules of Court, one of the instances a police officer is permitted to carry out a warrantless arrest is when the person to be arrested is caught committing a crime in flagrante delicto, thus:

“Section 5. Arrest without Warrant; when lawful. - A peace officer or a private person may, without warrant, arrest a person:

(a) When in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;

(b) When an offense has in fact just been committed, and he has probable cause to believe based on personal knowledge of facts or circumstances that the person to be arrested has committed it; and

(c) When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

x x x.”[21] (emphasis supplied)

Appellant also takes issue of the fact that she was not assisted by a lawyer when police officers interrogated her.  She claimed that she was not duly informed of her right to remain silent and to have competent counsel of her choice.  Hence, she argues that the confession or admission obtained therein should be considered inadmissible in evidence against her.

These contentions deserve scant attention.  Appellant did not make any confession during her custodial investigation.  In determining the guilt of the appellant and her co-accused, the trial court based its decision on the testimonies of prosecution witnesses and on the existence of the confiscated marijuana.  We quote the relevant portion of its decision:

“Earlier in the course of the proceedings, the court then presided by Judge Angel Parazo, granted bail to accused AgpangaLibnao, ruling that the confiscation receipt signed by both accused (Exhibit “C”) is inadmissible because they were not assisted by a counsel. Confronted with this same issue, this court finds the postulate to rest on good authority and will therefore reiterate its inadmissibility.

Since the prosecution had not presented any extrajudicial confession extracted from both accused as evidence of their guilt, the court finds it needless to discuss any answer given by both accused as a result of the police interrogation while in their custody.  By force of necessity, therefore, the only issue to be resolved by the court is whether or not, based on the prosecution’s evidence, both accused can be convicted.”[22] (emphasis supplied)

Appellant then faults the trial court for appreciating and taking into account the object and documentary evidence of the prosecution despite the latter’s failure to formally offer them.  Absent any formal offer, she argues that they again must be deemed inadmissible.

The contention is untenable.  Evidence not formally offered can be considered by the court as long as they have been properly identified by testimony duly recorded and they have themselves been incorporated in the records of the case.[23] All the documentary and object evidence in this

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case were properly identified, presented and marked as exhibits in court, including the bricks of marijuana.[24] Even without their formal offer, therefore, the prosecution can still establish the case because witnesses properly identified those exhibits, and their testimonies are recorded.[25] Furthermore, appellant’s counsel had cross-examined the prosecution witnesses who testified on the exhibits.[26]

Appellant also assails the credibility of the testimonies of the prosecution witnesses.  She first cites the inconsistency between the testimony of SPO1 Marlon Gamotea, who said that it was SPO2 Antonio who opened the black bag containing the marijuana; and that of SPO2 Antonio, who declared that the bag was already open when he arrived at the Kabayan Center.   She then focuses on the police officers’ failure to remember the family name of the driver of the tricycle where she allegedly rode, claiming that this is improbable and contrary to human experience.

Again, appellant’s arguments lack merit.  The alleged inconsistencies she mentions refer only to minor details and not to material points regarding the basic elements of the crime.  They are inconsequential that they do not affect the credibility of the witnesses nor detract from the established fact that appellant and her co-accused were transporting marijuana.  Testimonies of witnesses need only corroborate each other on important and relevant details concerning the principal occurrence.[27] The identity of the person who opened the bag is clearly immaterial to the guilt of the appellant.  Besides, it is to be expected that the testimony of witnesses regarding the same incident may be inconsistent in some aspects because different persons may have different recollections of the same incident.[28]

Likewise, we find nothing improbable in the failure of the police officers to note and remember the name of the tricycle driver for the reason that it was unnecessary for them to do so.  It was not shown that the driver was in complicity with the appellant and her co-accused in the commission of the crime.

To be sure, credence was properly accorded to the testimonies of prosecution witnesses, who are law enforcers.  When police officers have no motive to testify falsely against the accused, courts are inclined to uphold this presumption.[29] In this case, no evidence has been presented to suggest any improper motive on the part of the police enforcers in arresting the appellant.

Against the credible positive testimonies of the prosecution witnesses, appellant’s defense of denial and alibi cannot stand.  The defense of denial and alibi has been invariably viewed by the courts with disfavor for it can just as easily be concocted and is a common and standard defense ploy in most cases involving violation of the Dangerous Drugs Act.[30]It has to be substantiated by clear and convincing evidence.[31] The sole proof presented in the lower court by the appellant to support her claim of denial and alibi was a sworn statement, which was not even affirmed on the witness stand by the affiant.  Hence, we reject her defense.

IN VIEW WHEREOF, the instant appeal is DENIED.  The decision of the trial court finding appellant guilty beyond reasonable doubt of the offense of violation of Article II, Section 4 of R.A. No. 6425 in relation to R.A. No. 7659, and sentencing her to an imprisonment of reclusion perpetua and to pay a fine of two million pesos is hereby AFFIRMED.

ROBIN CARIÑO PADILLA @ ROBINHOOD PADILLA, petitioner, vs. COURT OF APPEALS On October 26, 1992, high-powered firearms with live ammunitions were found in the

possession of petitioner Robin Padilla @ Robinhood Padilla, i.e.:"(1)    One .357 Caliber revolver, Smith and Wesson, SN-32919 with six (6) live ammunitions;

"(2)    One M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazine with ammunitions;

"(3)    One .380 Pietro Beretta, SN-A 35723 Y with clip and eight (8) ammunitions; and"(4)    Six additional live double action ammunitions of .38 caliber revolver."[1]

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Petitioner was correspondingly charged on December 3, 1992, before the Regional Trial Court (RTC) of Angeles City with illegal possession of firearms and ammunitions under P.D. 1866 [2] thru the following Information:[3]

"That on or about the 26th day of October, 1992, in the City of Angeles, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, did then and there willfully, unlawfully and feloniously have in his possession and under his custody and control one (1) M-16 Baby Armalite rifle, SN-RP 131120 with four (4) long and one (1) short magazines with ammunitions, one (1) .357 caliber revolver Smith and Wesson, SN-32919 with six (6) live ammunitions and one (1) .380 Pietro Beretta, SN-A35723Y with clip and eight (8) ammunitions, without having the necessary authority and permit to carry and possess the same.ALL CONTRARY TO LAW."[4]

The lower court then ordered the arrest of petitioner,[5] but granted his application for bail.[6] During the arraignment on January 20, 1993, a plea of not guilty was entered for petitioner after he refused,[7] upon advice of counsel,[8] to make any plea.[9] Petitioner waived in writing his right to be present in any and all stages of the case.[10]

After trial, Angeles City RTC Judge David Rosete rendered judgment dated April 25, 1994 convicting petitioner of the crime charged and sentenced him to an "indeterminate penalty from 17 years, 4 months and 1 day of reclusion temporal as minimum, to 21 years of reclusion perpetua, as maximum".[11] Petitioner filed his notice of appeal on April 28, 1994. [12] Pending the appeal in the respondent Court of Appeals,[13] the Solicitor-General, convinced that the conviction shows strong evidence of guilt, filed on December 2, 1994 a motion to cancel petitioner's bail bond. The resolution of this motion was incorporated in the now assailed respondent court's decision sustaining petitioner's conviction,[14] the dispositive portion of which reads:

"WHEREFORE, the foregoing circumstances considered, the appealed decision is hereby AFFIRMED, and furthermore, the P200,000.00bailbond posted by accused-appellant for his provisional liberty, FGU Insurance Corporation Bond No. JCR (2) 6523, is hereby cancelled.  The Regional Trial Court, Branch 61, Angeles City, is directed to issue the Order of Arrest of accused-appellant and thereafter his transmittal to the National Bureau of Prisons thru the Philippine National Police where the said accused-appellant shall remain under confinement pending resolution of his appeal, should he appeal to the Supreme Court.  This shall be immediately executory.  The Regional Trial Court is further directed to submit a report of compliance herewith.

SO ORDERED."[15]

Petitioner received a copy of this decision on July 26, 1995.[16] On August 9, 1995 he filed a "motion for reconsideration (and to recall the warrant of arrest)"[17] but the same was denied by respondent court in its September 20, 1995 Resolution,[18] copy of which was received by petitioner on September 27, 1995.  The next day, September 28, petitioner filed the instant petition for review on certiorari with application for bail[19] followed by two "supplemental petitions" filed by different counsels,[20] a "second supplemental petition"[21] and an urgent motion for the separate resolution of his  application for bail.  Again, the Solicitor-General[22] sought the denial of the application for bail, to which the Court agreed in a Resolution promulgated on July 31, 1996. [23] The Court also granted the Solicitor-General's motion to file a consolidated comment on the petitions and thereafter required the petitioner to file his reply.[24] However, after his vigorous resistance and success on the intramural of bail (both in the respondent court and this Court) and thorough exposition of petitioner's guilt in his 55-page Brief in the respondent court, the Solicitor-General now makes a complete turnabout by filing a "Manifestation In Lieu Of Comment" praying for petitioner's acquittal.[25]

The People's detailed narration of facts, well-supported by evidence on record and given credence by respondent court, is as follows:[26]

"At about 8:00 o'clock in the evening of October 26, 1992, Enrique Manarang and his compadre Danny Perez were inside the Manukansa Highway Restaurant in Sto. Kristo,

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Angeles City where they took shelter from the heavy downpour (pp. 5-6, TSN, February 15, 1993) that had interrupted their ride on motorcycles (pp. 5-6, ibid.) along McArthur Highway (ibid). While inside the restaurant, Manarang noticed a vehicle, a Mitsubishi Pajero, running fast down the highway prompting him to remark that the vehicle might get into an accident considering the inclement weather.  (p. 7, Ibid)  In the local vernacular, he said thus: 'Kabilisna, mumuran pa namanpotamakaaksidenteya.' (p. 7, ibid).  True enough, immediately after the vehicle had passed the restaurant, Manarang and Perez heard a screeching sound produced by the sudden and hard braking of a vehicle running very fast (pp. 7-8, ibid) followed by a sickening sound of the vehicle hitting something (p. 8,ibid).  Danny Cruz, quite sure of what had happened, remarked 'oy ta na' signifying that Manarang had been right in his observation (pp. 8-9, ibid)."Manarang and Cruz went out to investigate and immediately saw the vehicle occupying the edge or shoulder of the highway giving it a slight tilt to its side (pp. 9-10, ibid).  Manarang, being a member of both the Spectrum, a civic group and the Barangay Disaster Coordinating Council, decided to report the incident to the Philippine National Police of Angeles City (p. 10, ibid).  He took out his radio and called the Viper, the radio controller of the Philippine National Police of Angeles City (p. 10, ibid).  By the time Manarang completed the call, the vehicle had started to leave the place of the accident taking the general direction to the north (p. 11, ibid)."Manarang went to the location of the accident and found out that the vehicle had hit somebody (p. 11, ibid)."He asked Cruz to look after the victim while he went back to the restaurant, rode on his motorcycle and chased the vehicle (p. 11 ibid).  During the chase he was able to make out the plate number of the vehicle as PMA 777 (p. 33, TSN, February 15, 1993).   He called the  Viper through the radio once again (p. 34, ibid) reporting that a vehicle heading north with plate number PMA 777 was involved in a hit and run accident (p. 20, TSN, June 8, 1993).  The Viper, in the person of SPO2 Ruby Buan, upon receipt of the second radio call flashed the message to all units of PNP Angeles City with the order to apprehend the vehicle (p. 20, ibid).  One of the units of the PNP Angeles City reached by the alarm was its Patrol Division at Jake Gonzales Street near the Traffic Division (pp. 5-7, TSN, February 23, 1993).  SPO2 Juan C. Borja III and SPO2 Emerlito Miranda immediately borded a mobile patrol vehicle (Mobile No. 3) and positioned themselves near the south approach of Abacan bridge since it was the only passable way going to the north (pp. 8-9, ibid). It took them about ten (10) seconds to cover the distance between their office and the Abacan bridge (p. 9, ibid)."Another PNP mobile patrol vehicle that responded to the flash message from SPO2 Buan was Mobile No. 7 of the Pulongmaragal Detachment which was then conducting patrol along Don Juico Avenue (pp. 8-9, TSN, March 8, 1993).  On board were SPO Ruben Mercado and SPO3 Tan and SPO2 Odejar (p. 8, ibid). SPO Ruben Mercado immediately told SPO3 Tan to proceed to the MacArthur Highway to intercept the vehicle with plate number PMA 777 (p. 10, ibid)."In the meantime, Manarang continued to chase the vehicle which figured in the hit and run incident, even passing through a flooded portion of the MacArthur Highway two (2) feet deep in front of the IglesianiKristo church but he could not catch up with the same vehicle (pp. 11-12, February 15, 1993).  When he saw that the car he was chasing went towards Magalang, he proceeded to Abacan bridge because he knew Pulongmaragal was not passable (pp. 12-14, ibid).  When he reached the Abacanbridge, he found Mobile No. 3 and SPO2 Borja and SPO2 Miranda watching all vehicles coming their way (p. 10, TSN, February 23, 1993).  He approached them and informed them that there was a hit and run incident (p. 10, ibid).  Upon learning that the two police officers already knew about the incident, Manarang went back to where he came from (pp. 10-11; ibid).  When Manarang was in front of Tina's Restaurant, he saw the vehicle that had figured in the hit and run incident emerging from the corner adjoining Tina's Restaurant (p. 15, TSN, February 15, 1993).  He saw that the license plate hanging in front of the vehicle bore the identifying number PMA 777 and he followed it (p. 15, ibid) towards the Abacanbridge.

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"Soon the vehicle was within sight of SPO2 Borja and SPO2 Miranda of Mobile No. 3 (p. 10, TSN, February 23, 1993).  When the vehicle was about twelve (12) meters away from their position, the two police officers boarded their Mobile car, switched on the engine, operated the siren and strobe light and drove out to intercept the vehicle (p. 11, ibid).  They cut into the path of the vehicle forcing it to stop (p. 11, ibid)."SPO2 Borja and SPO2 Miranda alighted from Mobile No. 3 (P. 12, TSN, February 23, 1993).  SPO2 Miranda went to the vehicle with plate number PMA 777 and instructed its driver to alight (p. 12, ibid).  The driver rolled down the window and put his head out while raising both his hands.  They recognized the driver as Robin C. Padilla, appellant in this case (p. 13, ibid).  There was no one else with him inside the vehicle (p. 24).  At that moment, Borja noticed that Manarang arrived and stopped his motorcycle behind the vehicle of appellant (p. 14, ibid).  SPO2 Miranda told appellant to alight to which appellant complied.  Appellant was wearing a short leather jacket (p. 16, TSN, March 8, 1993) such that when he alighted with both his hands raised, a gun (Exhibit 'C') tucked on the left side of his waist was revealed (p. 15, TSN, February 23, 1993), its butt protruding (p. 15, ibid).  SPO2 Borja made the move to confiscate the gun but appellant held the former's hand alleging that the gun was covered by legal papers (p. 16, ibid).  SPO2 Borja, however, insisted that if the gun really was covered by legal papers, it would have to be shown in the office (p. 16,ibid).  After disarming appellant, SPO2 Borja told him about the hit and run incident which was angrily denied by appellant (p. 17, ibid).  By that time, a crowd had formed at the place (p. 19,ibid).  SPO2 Borja checked the cylinder of the gun and find six (6) live bullets inside (p. 20, ibid)."While SPO2 Borja and appellant were arguing, Mobile No. 7 with SPO Ruben Mercado, SPO3 Tan and SPO2 Odejar on board arrived (pp. 11-12, TSN, March 8, 1993).  As the most senior police officer in the group, SPO Mercado took over the matter and informed appellant that he was being arrested for the hit and run incident (p. 13, ibid).  He pointed out to appellant the fact that the plate number of his vehicle was dangling and the railing and the hood were dented (p. 12, ibid).  Appellant, however, arrogantly denied his misdeed and, instead, played with the crowd by holding their hands with one hand and pointing to SPO3 Borja with his right hand saying 'iyan, kinuhaangbarilko' (pp. 13-15, ibid).  Because appellant's jacket was short, his gesture exposed a long magazine of an armalite rifle tucked in appellant's back right pocket (p. 16, ibid).  SPO Mercado saw this and so when appellant turned around as he was talking and proceeding to his vehicle, Mercado confiscated the magazine from appellant (pp. 16-17, ibid).  Suspecting that appellant could also be carrying a rifle inside the vehicle since he had a magazine, SPO2 Mercado prevented appellant from going back to his vehicle by opening himself the door of appellant's vehicle (16-17, ibid).  He saw a baby armalite rifle (Exhibit D) lying horizontally at the front by the driver's seat.  It had a long magazine filled with live bullets in a semi-automatic mode (pp. 17-21, ibid). He asked appellant for the papers covering the rifle and appellant answered angrily that they were at his home (pp. 26-27, ibid).  SPO Mercado modified the arrest of appellant by including as its ground illegal possession of firearms (p. 28, ibid).  SPO Mercado then read to appellant his constitutional rights (pp. 28-29, ibid)."The police officers brought appellant to the Traffic Division at Jake Gonzales Boulevard (pp. 31-32, ibid) where appellant voluntarily surrendered a third firearm, a pietroberretapistol(Exhibit 'L') with a single round in its chamber and a magazine (pp. 33-35, ibid) loaded with seven (7) other live bullets.  Appellant also voluntarily surrendered a black bag containing two additional long magazines and one short magazine (Exhibits M, N, and O, pp. 36-37, ibid).  After appellant had been interrogated by the Chief of the Traffic Division, he was transferred to the Police Investigation Division at Sto. Rosario Street beside the City Hall Building where he and the firearms and ammunitions were turned over to SPO2 Rene Jesus Gregorio (pp. 5-10, TSN, July 13, 1993).  During the investigation, appellant admitted possession of the firearms stating that he used them for shooting (p. 14, ibid).  He was not able to produce any permit to carry or memorandum receipt to cover the three firearms (pp. 16-18, TSN, January 25, 1994)."On November 28, 1992, a certification (Exhibit 'F') was issued by Captain, Senior Inspector Mario Espino, PNP, Chief, Record Branch of the Firearms and Explosives Office (pp. 7-8,

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TSN, March 4, 1993).  The Certification stated that the three firearms confiscated from appellant, an M-16 Baby armalite rifle SN-RP 131280, a .357 caliber revolver Smith and Wesson SN 32919 and a .380 Pietro Beretta SN-A35720, were not registered in the name of Robin C. Padilla (p. 6, ibid).  A second Certification dated December 11, 1992 issued by Captain Espino stated that the three firearms were not also registered in the name of Robinhood C. Padilla (p. 10, ibid)."Petitioner's defenses are as follows: (1) that his arrest was illegal and consequently, the

firearms and ammunitions taken in the course thereof are inadmissible in evidence under the exclusionary rule; (2) that he is a confidential agent authorized, under a Mission Order and Memorandum Receipt, to carry the subject firearms; and (3) that the penalty for simple illegal possession constitutes excessive and cruel punishment proscribed by the 1987 Constitution.

After a careful review of the records[27]of this case, the Court is convinced that petitioner's guilt of the crime charged stands on terra firma, notwithstanding the Solicitor-General's change of heart.

Anent the first defense, petitioner questions the legality of his  arrest.  There is no dispute that no warrant was issued for the arrest of petitioner, but that per se did not make his apprehension at the Abacanbridge illegal.

Warrantless arrests are sanctioned in the following instances:[28]

"Sec. 5.  Arrest without warrant; when lawful. - A peace officer or a private person may, without a warrant, arrest a person:

(a)  When, in his presence, the person to be arrested has committed, is actually committing, or is attempting to commit an offense;(b)  When an offense has in fact just been committed, and he has personal knowledge of facts indicating that the person to be arrested has committed it.(c)  When the person to be arrested is a prisoner who has escaped from a penal establishment or place where he is serving final judgment or temporarily confined while his case is pending, or has escaped while being transferred from one confinement to another.

Paragraph (a) requires that the person be arrested (i) after he has committed or while he is actually committing or is at least attempting to commit an offense, (ii) in the presence of the arresting officer or private person.[29] Both elements concurred here, as it has been established that petitioner's vehicle figured in a hit and run - an offense committed in the "presence" of Manarang, a private person, who then sought to arrest petitioner.  It must be stressed at this point that "presence" does not only require that the arresting person sees the offense, but also when he "hears the disturbance created thereby AND proceeds at once to the scene."[30] As testified to by Manarang, he heard the screeching of tires followed by a thud, saw the sideswiped victim (balut vendor), reported the incident to the police and thereafter gave chase to the erring Pajero vehicle using his motorcycle in order to apprehend its driver.  After having sent a radio report to the PNP for assistance, Manarang proceeded to the Abacanbridge where he found responding policemen SPO2 Borja and SPO2 Miranda already positioned near the bridge who effected the actual arrest of petitioner.[31]

Petitioner would nonetheless insist on the illegality of his arrest by arguing that the policemen who actually arrested him were not at the scene of the hit and run. [32] We beg to disagree.  That Manarang decided to seek the aid of the policemen (who admittedly were nowhere in the vicinity of the hit and run) in effecting petitioner's arrest, did not in any way affect the propriety of the apprehension. It was in fact the most prudent action Manarang could have taken rather than collaring petitioner by himself, inasmuch as policemen are unquestionably better trained and well-equipped in effecting an arrest of a suspect (like herein petitioner) who , in all probability, could have put up a degree of resistance which an untrained civilian may not be able to contain without endangering his own life.  Moreover, it is a reality that curbing lawlessness gains more success when law enforcers function in collaboration with private citizens.  It is precisely through this cooperation, that the offense herein involved fortunately did not become an additional entry to the long list of unreported and unsolved crimes.

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It is appropriate to state at this juncture that a suspect, like petitioner herein, cannot defeat the arrest which has been set in motion in a public place for want of a warrant as the police was confronted by an urgent need to render aid or take action. [33] The exigent circumstances of - hot pursuit,[34] a fleeing suspect, a moving vehicle, the public place and the raining nighttime - all created a situation in which speed is essential and delay improvident. [35] The Court acknowledges police authority to make the forcible stop since they had more than mere "reasonable and articulable" suspicion that the occupant of the vehicle has been engaged in criminal activity.[36] Moreover, when caught in flagrante delicto with possession of an unlicensed firearm (Smith & Wesson) and ammunition (M-16 magazine), petitioner's warrantless arrest was proper as he was again actually committing another offense (illegal possession of firearm and ammunitions) and this time in the presence of a peace officer.[37]

Besides, the policemen's warrantless arrest of petitioner could likewise be justified under paragraph (b) as he had in fact just committed an offense.  There was no supervening event or a considerable lapse of time between the hit and run and the actual apprehension.  Moreover, after having stationed themselves at the Abacan bridge in response to Manarang's report, the policemen saw for themselves the fast approaching Pajero of petitioner,[38] its dangling plate number (PMA 777 as reported by Manarang), and the dented hood and railings thereof.[39] These formed part of the arresting police officer's personal knowledge of the facts indicating that petitioner's Pajero was indeed the vehicle involved in the hit and run incident.  Verily then, the arresting police officers acted upon verified personal knowledge and not on unreliable hearsay information.[40]

Furthermore, in accordance with settled jurisprudence, any objection, defect or irregularity attending an arrest must be made before the accused enters his plea. [41] Petitioner's belated challenge thereto aside from his failure to quash the information, his participation in the trial and by presenting his evidence, placed him in estoppel to assail the legality of his arrest.[42] Likewise, by applying for bail, petitioner patently waived such irregularities and defects.[43]

We now go to the firearms and ammunitions seized from petitioner without a search warrant, the admissibility in evidence of which, we uphold.

The five (5) well-settled instances when a warrantless search and seizure of property is valid,[44] are as follows:

1.      warrantless search incidental to a lawful arrest recognized under Section 12, Rule 126 of the Rules of Court[45] and by prevailing jurisprudence[46],

2.      Seizure of evidence in "plain view", the elements of  which are:[47]

(a).        a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;(b).        the evidence was inadvertently discovered by the police who had the right to be where they are;(c).        the evidence must be immediately apparent, and(d).        "plain view" justified mere seizure of evidence without further search.[48]

3.      search of a moving vehicle.[49] Highly regulated by the government, the vehicle's inherent mobility reduces expectation of privacy especially when its transit in public thoroughfares furnishes a highly reasonable suspicion amounting to probable cause that the occupant committed a criminal activity.[50]

4.      consented warrantless search, and

5.      customs search.

In conformity with respondent court's observation, it indeed appears that the authorities stumbled upon petitioner's firearms and ammunitions without even undertaking any active search which, as it is commonly understood, is a prying into hidden places for that which is concealed.

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[51] The seizure of the Smith & Wesson revolver and an M-16 rifle magazine was justified for they came within "plain view" of the policemen who inadvertently discovered the revolver and magazine tucked in petitioner's waist and back pocket respectively, when he raised his hands after alighting from his Pajero.  The same justification applies to the confiscation of the M-16 armalite rifle which was immediately apparent to the policemen as they took a casual glance at the Pajero and saw said rifle lying horizontally near the driver's seat.[52] Thus it has been held that:

"(W)hen in pursuing an illegal action or in the commission of a criminal offense, the . . . police officers should happen to discover a criminal offense being committed by any person, they are not precluded from performing their duties as police officers for the apprehension of the guilty person and the taking of the corpus delicti."[53]

"Objects whose possession are prohibited by law inadvertently found in plain view are subject to seizure even without a warrant."[54]

With respect to the Berreta pistol and a black bag containing assorted magazines, petitioner voluntarily surrendered them to the police.[55] This latter gesture of petitioner indicated a waiver of his right against the alleged search and seizure[56], and that his failure to quash the information estopped him from assailing any purported defect.[57]

Even assuming  that the firearms and ammunitions were products of an active search done by the authorities on the person and vehicle of petitioner, their seizure without a search warrant nonetheless can still be justified under a search  incidental to a lawful arrest (first instance).  Once the lawful arrest was effected, the police may undertake a protective search [58] of the passenger compartment and containers in the vehicle[59] which are within petitioner's grabbing distance regardless of the nature of the offense.[60] This satisfied the two-tiered test of an incidental search: (i) the item to be searched (vehicle) was within the arrestee's custody or area of immediate control[61] and (ii) the search was contemporaneous with the arrest.[62] The products of that search are admissible evidence not excluded by the exclusionary rule.  Another justification is a search of a moving vehicle (third instance).  In connection therewith, a warrantless search is constitutionally permissible when, as in this case, the officers conducting the search have reasonable or probable cause to believe, before the search, that either the motorist is a law-offender (like herein petitioner with respect to the hit and run) or the contents or cargo of the vehicle are or have been instruments or the subject matter or the proceeds of some criminal offense.[63]

Anent his second defense, petitioner contends that he could not be convicted of violating P.D. 1866 because he is an appointed civilian agent authorized to possess and carry the subject firearms and ammunition as evidenced by a Mission Order[64] and Memorandum Receipt duly issued by PNP Supt. RodialoGumtang, the deputy commander of Task Force Aguila, Lianga, Surigao del Sur.  The contention lacks merit.

In crimes involving illegal possession of firearm, two requisites must be established, viz.:  (1) the existence of the subject firearm and, (2) the fact that the accused who owned or possessed the firearm does not have the corresponding license or permit to possess.[65] The first element is beyond dispute as the subject firearms and ammunitions[66] were seized from petitioner's possession via a valid warrantless search, identified and offered in evidence during trial.   As to the second element, the same was convincingly proven by the prosecution.  Indeed, petitioner's purported Mission Order and Memorandum Receipt are inferior in the face of the more formidable evidence for the prosecution as our meticulous review of the records reveals that the Mission Order and Memorandum Receipt were mere afterthoughts contrived and issued under suspicious circumstances.  On this score, we lift from respondent court's incisive observation.  Thus:

"Appellant's contention is predicated on the assumption that the Memorandum Receipts and Mission Order were issued before the subject firearms were seized and confiscated from him by the police officers in Angeles City.  That is not so.  The evidence adduced indicate that the Memorandum Receipts and Mission Order were prepared and executed long after appellant had been apprehended on October 26, 1992."Appellant, when apprehended, could not show any document as proof of his authority to possess and carry the subject firearms.  During the preliminary investigation of the charge against him for illegal possession of firearms and ammunitions he could not, despite the

38

ample time given him, present any proper document showing his authority.  If he had, in actuality, the Memorandum Receipts and Missions Order, he could have produced those documents easily, if not at the time of apprehension, at least during the preliminary investigation.  But neither appellant nor his counsel inform the prosecutor that appellant is authorized to possess and carry the subject firearms under Memorandum Receipt and Mission Order.  At the initial presentation of his evidence in court, appellant could have produced these documents to belie the charged against him.  Appellant did not.  He did not even take the witness stand to explain his possession of the subject firearms."Even in appellant's Demurrer to Evidence filed after the prosecution rested contain no allegation of a Memorandum Receipts and Mission Order authorizing appellant to possess and carry the subject firearms."At the initial presentation of appellant's evidence, the witness cited was one James Neneng to whom a subpoena was issued.  Superintendent Gumtang was not even mentioned.  James Neneng appeared in court but was not presented by the defense.  Subsequent hearings were reset until the defense found Superintendent Gumtang who appeared in court without subpoena on January 13, 1994."[67]

The Court is baffled why petitioner failed to produce and present the Mission Order and Memorandum Receipt if they were really issued and existing before his apprehension. Petitioner's alternative excuses that the subject firearms were intended for theatrical purposes, or that they were owned by the Presidential Security Group, or that his Mission Order and Memorandum Receipt were left at home, further compound their irregularity.  As to be reasonably expected, an accused claiming innocence, like herein petitioner, would grab the earliest opportunity to present the Mission Order and Memorandum Receipt in question and save himself from the long and agonizing public trial and spare him from proffering inconsistent excuses.  In fact, the Mission Order itself, as well as the Letter-Directive of the AFP Chief of Staff, is explicit in providing that:

"VIII. c.  When a Mission Order is requested for verification by enforcement units/personnels such as PNP, Military Brigade and other Military Police Units of AFP, the Mission Order should be shown without resentment to avoid embarrassment and/or misunderstanding."IX.  d.  Implicit to this Mission Order is the injunction that the confidential instruction will be carried out through all legal means and do not cover an actuation in violation of laws.  In the latter event, this Mission Order is rendered inoperative in respect to such violation."[68]

which directive petitioner failed to heed without cogent explanation.The authenticity and validity of the Mission Order and Memorandum Receipt, moreover, were

ably controverted.  Witness for the prosecution Police Supt. Durendes denied under oath his signature on the dorsal side of the Mission Order and declared further that he did not authorize anyone to sign in his behalf.[69] His surname thereon, we note, was glaringly misspelled as "Durembes."[70] In addition, only Unit Commanders and Chief of Offices have the authority to issue Mission Orders and Memorandum Receipts under the Guidelines on the Issuance of MOs, MRs, & PCFORs.[71] PNP Supt. RodialoGumtang who issued petitioner's Mission Order and Memorandum Receipt is neither a Unit Commander nor the Chief of Office, but a mere deputy commander.  Having emanated from an unauthorized source, petitioner's Mission Order and Memorandum Receipt are infirm and lacking in force and effect.  Besides, the Mission Order covers "Recom 1-12-Baguio City,"[72] areas outside Supt. Gumtang's area of responsibility thereby needing prior approval "by next higher Headquarters"[73] which is absent in this case.  The Memorandum Receipt is also unsupported by a certification as required by the March 5, 1988 Memorandum of the Secretary of Defense which pertinently provides that:

"No memorandum receipt shall be issued for a CCS firearms without corresponding certification from the corresponding Responsible Supply Officer of the appropriate AFP unit that such firearm has been officially taken up in that units property book, and that report of such action has been reported to higher AFP authority."

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Had petitioner's Memorandum Receipt been authentic, we see no reason why he cannot present the corresponding certification as well.

What is even more peculiar is that petitioner's name, as certified to by the Director for Personnel of the PNP, does not even appear in the Plantilla of Non-Uniform Personnel or in the list of Civilian Agents or Employees of the PNP which could justify the issuance of a Mission Order, a fact admitted by petitioner's counsel.[74] The implementing rules of P.D. 1866 issued by the then PC-INP Chief and Director-General Lt. Gen. Fidel V. Ramos are clear and unambiguous, thus:

"No Mission Order shall be issued to any civilian agent authorizing the same to carry firearms outside residence unless he/she is included in the regular plantilla of the government agency  involved in law enforcement and is receiving regular compensation for the services he/she is rendering in the agency.  Further, the civilian agent must be included in a specific law enforcement/police/intelligence project proposal or special project which specifically required the use of firearms(s) to insure its accomplishment and that the project is duly approved at the PC Regional Command level or its equivalent level in other major services of the AFP, INP and NBI, or at higher levels of command."[75]

Circular No. 1, dated January 6, 1986, of the then Ministry of Justice likewise provides as follows:"If mission orders are issued to civilians (not members of the uniformed service), they must be civilian agents included in the regular plantilla of the government agency involved in law enforcement and are receiving regular compensation for the service they are rendering."

That petitioner's Mission Order and Memorandum Receipt were fabricated pieces of evidence is accentuated all the more by the testimony and certification of the Chief of the Records Branch of the firearms and Explosives Office of the PNP declaring that petitioner's confiscated firearms are not licensed or registered in the name of the petitioner.[76] Thus:

"Q.  In all these files that you have just mentioned Mr. Witness, what did you find, if any?"A.   I found that a certain Robin C. Padilla is a licensed registered  owner of one 9 mm

pistol, Smith and  Wesson with Serial No. TCT 8214 and the following firearms being asked whether it is registered or not, I did not find any records, the M-16 and the caliber .357 and the caliber .380 but there is a firearm with the same serial number which is the same as that licensed and/or registered in the name of one Albert Villanueva Fallorina.

"Q.  So in short, the only licensed firearms in the name of accused Robin C. Padilla is a pistol, Smith and Wesson, caliber 9 mm with Serial No. TCT 8214?

"A.   Yes, sir."Q.  And the firearms that were the subject of this case are not listed in the

names of the accused in this case?"A.   Yes, sir.[77]

xxx                                                                        xxx                                                                               xxxAnd the certification which provides as follows:

                                                          Republic of the Philippines                                           Department of the Interior and Local Government                          GENERAL HEADQUARTERS PHILIPPINE NATIONAL POLICE                                         FIREARMS AND EXPLOSIVES OFFICE

                                                   Camp Crame, Quezon City

"PNPFEO5                                                                                             28 November 1992

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                                                    "C E R T I F I C A T I O N

"TO WHOM IT MAY CONCERN:

"THIS IS TO CERTIFY  that Robin C. Padilla of 59 Labo St., Quezon City is a licensed/registered holder of Pistol Smith and Wesson Cal 9mm with serial number TCT8214 covered by License No. RL M76C4476687.

"Further certify that the following firearms are not registered with this Office per verification from available records on file this Office as of this date:

M16 Baby Armalite SN-RP131120Revolver Cal 357 SN-3219

Pistol Cal 380 Pietro Beretta SN-35723

"However,  we have on file one Pistol Cal 380, Beretta with serial number 35723Y, licensed/registered to one Albert Villanueva Fallorina of 29 San Juan St., Capitol Pasig, MM under Re-Registered License.

"This certification is issued pursuant to Subpoena from City of Angeles.

"FOR THE CHIEF,  FEO:

(Sgd.)

JOSE MARIO M. ESPINOSr. Inspector, PNP

Chief, Records Branch" [78]

In several occasions, the Court has ruled that either the testimony of a representative of, or a certification from, the PNP Firearms and Explosives Office (FEO) attesting that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt the second element of illegal possession of firearm.[79] In People vs. Tobias,[80] we reiterated that such certification is sufficient to show that a person has in fact no license.  From the foregoing discussion, the fact that petitioner does not have the license or permit to possess was overwhelmingly proven by the prosecution.  The certification may even be dispensed with in the light of the evidence[81] that an M-16 rifle and any short firearm higher than a .38 caliber pistol, akin to the confiscated firearms, cannot be licensed to a civilian,[82] as in the case of petitioner.  The Court, therefore, entertains no doubt in affirming petitioner's conviction especially as we find no plausible reason, and none was presented, to depart from the factual findings of both the trial court and respondent court which, as a rule, are accorded by the Court with respect and finality.[83]

Anent his third defense, petitioner faults respondent court "in applying P.D. 1866 in a democratic ambience (sic) and a non-subversive context"  and adds that respondent court should have applied instead the previous laws on illegal possession of firearms since the reason for the penalty imposed under P.D. 1866 no longer exists.[84] He stresses that the penalty  of 17 years and 4 months to 21 years for simple illegal possession of firearm is cruel and excessive in contravention of the Constitution.[85]

The contentions do not merit serious consideration. The trial court and the respondent court are bound to apply the governing law at the time of appellant's commission of the offense for it is a rule that laws are repealed only by subsequent ones.[86] Indeed, it is the duty of judicial officers to respect and apply the law as it stands.[87] And until its repeal, respondent court can not be faulted for applying P.D. 1866 which abrogated the previous statutes adverted to by petitioner. 

Equally lacking in merit is appellant's allegation that the penalty for simple illegal possession is unconstitutional. The penalty for simple possession of firearm, it should be stressed, ranges

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from reclusion temporal maximum to reclusion perpetua contrary to appellant's erroneous averment.  The severity of a penalty does not ipso facto make the same cruel and excessive.

"It takes more than merely being harsh, excessive, out of proportion, or severe for a penalty to be obnoxious to the Constitution. 'The fact that the punishment authorized by the statute is severe does not make it cruel and unusual.'  (24 C.J.S., 1187-1188).  Expressed in other terms, it has been held that to come under the ban, the punishment must be  'flagrantly and plainly oppressive',  'wholly disproportionate  to the nature of the offense as to shock the moral sense of the community' "[88]

It is well-settled that as far as the constitutional prohibition goes, it is not so much the extent as the nature of the punishment that determines whether it is, or is not, cruel and unusual and that sentences of imprisonment, though perceived to be harsh, are not cruel or unusual if  within statutory limits.[89]

Moreover, every law has in its favor the presumption of constitutionality.  The burden of proving the invalidity of the statute in question lies with the appellant which burden, we note, was not convincingly discharged. To justify nullification of the law, there must be a clear and unequivocal breach of the Constitution, not a doubtful and argumentative implication,[90] as in this case.  In fact, the constitutionality of P.D. 1866 has been upheld twice by this Court.[91] Just recently, the Court declared that "the pertinent laws on illegal  possession of firearms [are not] contrary to any provision  of the Constitution. . ."[92] Appellant's grievance on the wisdom of the prescribed penalty should not be addressed to us.  Courts are not concerned with the wisdom, efficacy or morality of laws.  That question falls exclusively within the province of  Congress  which enacts them and the Chief Executive who approves or vetoes them.  The only function of the courts, we reiterate,  is to interpret and apply the laws.

With respect  to the penalty imposed by the trial court as affirmed by respondent court (17 years 4 months and 1 day  of  reclusion temporal, as minimum, to 21 years ofreclusionperpetua, as maximum), we reduce  the same in line with the fairly recent case of People v. Lian[93] where the Court en banc provided that the indeterminate penalty imposable for simple illegal possession of firearm, without any mitigating or aggravating circumstance, should be within the range of ten (10) years and one (1) day to twelve years (12) of prision mayor, as minimum, to eighteen (18) years, eight (8) months and one (1) day to twenty (20) of reclusion temporal, as maximum.  This is discernible from the following explanation by the Court:

"In the case at bar, no mitigating or aggravating circumstances have been alleged or proved, In accordance with the doctrine regarding special laws explained in People v. Simon,[94] although Presidential Decree No. 1866 is a special law, the penalties therein were taken from the Revised Penal Code, hence the rules in said Code for graduating by degrees or determining the proper period should be applied. Consequently, the penalty for the offense of simple illegal possession of firearm is the medium period of the complex penalty in said Section 1, that is, 18 years, 8 months and 1 day to 20 years.

"This penalty, being that which is to be actually imposed in accordance with the rules therefor and not merely imposable as a general prescription under the law, shall be the maximum of the range of the indeterminate sentence. The minimum thereof shall be taken, as aforesaid, from any period of the penalty next lower in degree, which is, prision mayor in its maximum period to reclusion temporal in its medium period.[95]

WHEREFORE, premises considered, the decision of the Court of Appeals sustaining petitioner's conviction by the lower court of the crime of simple illegal possession of firearms and ammunitions is AFFIRMED EXCEPT that petitioner's indeterminate penalty is MODIFIED to ten (10) years and one (1) day, as minimum, to eighteen (18) years, eight (8) months and one (1) day, as maximum.

THE PEOPLE OF THE PHILIPPINES, vs. PABLEO DRAMAYO

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There is an element of ingenuity as well as of novel in the plea made by counsel de oficio in this appeal of the accused PableoDramayo and PaternoEcubin, who were sentenced to life imprisonment for the murder of EstelitoNogaliza. The claim is vigorously pressed that because the information alleged conspiracy on the part of seven defendants, with only the two appellants being convicted, two having been utilized as state witnesses and the other three having been acquitted on the ground of insufficiency of evidence as to their culpability, the judgment of conviction against the appellants cannot stand, there being a reasonable doubt as to their guilt. To bolster such a contention, certain alleged deficiencies in the proof offered by the prosecution were noted. A careful study of the evidence of record would leave no other rational conclusion but that the deceased met his death at the hands of the appellants in the manner as found by the lower court. Hence the appeal cannot prosper. We affirm.

The gory incident which was attended by a fatality started on the morning of January 9, 1964. The two accused, now appellants, PableoDramayo and PaternoEcubin, in the company of the deceased EstelitoNogaliza, all of Barrio Magsaysay, of the Municipality of Sapao, Surigaodel Norte, saw its chief of police. Their purpose was to shed light on a robbery committed in the house of the deceased five days before by being available as witnesses. The response was decidedly in the negative as they themselves were prime suspects, having been implicated by at least two individuals who had confessed. At about 7:00 o'clock of the same day, while they were in the house of their co-accused PrioloBillona, the accused Dramayo invited all those present including the other accused Francisco Billons, Modesto Ronquilla. Crescencio and SeveroSavandal, for a drinking session at a place at the back of the school house. It was on that occasion that Dramayo brought up the idea of killing EstelitoNogaliza so that he could not testify in the robbery case. The idea was for Dramayo and Ecubin to ambush Estelito, who was returning from Sapao. The others were to station themselves nearby. 1

Soon the unfortunate victim was sighted. He was accosted by Dramayo with a request for a cigarette. It was then that Ecubin hit him with a piece of wood on the side of the head near the right ear. Dramayo's participation consisted of repeated stabs with a short pointed bolo as he lay prostrate from the blow of Ecubin. It was the former also, who warned the rest of the group to keep their mouths sealed as to what had just happened. His equanimity appeared undisturbed for early the next morning, he went to the house of the deceased and informed the, latter's widow Corazon that he had just seen the cadaver of Estelito. The barrio lieutenant and the chief of police were duly notified. The latter, upon noticing blood stains on the trousers of Dramayo, asked him to explain. The answer was that a skin ailment of his daughter was the cause thereof.  2 The death was due to the wounds inflicted, two in the epigastric region, one in the right lumbar region, and another in the left breast.

It was on the basis of the above testimony offered by the prosecution that the lower court reached its decision. Its dispositive portion found the accused, now appellant PableoDramayo and PaternoEcubin, guilty beyond reasonable doubt, of the crime of [murder], defined and penalized under Art. 248 of the Revised Penal Code, qualified by the circumstance of evident premeditation aggravated by night time, and imposes upon each of the said accused, PableoDramayo and PaternoEcubin, the penalty of [reclusion perpetual]." 3 Reference was likewise made in such decision as to why the other co-accused were not convicted, two of them, CrescencioSavandal and SeveroSavandal being utilized as state witnesses, and the others three, PrioloBillona, Francisco Billona and Modesto Roquilla acquitted.

Why they should not be found guilty was explained in the appealed decision thus: "From the beginning the accused Modesto Ronquilla maintained that he was not with the group but that he was fishing in the sea during the night in question. These facts that is, that none of the prosecution witnesses has testified that any of these three accused actually helped in the killing of the deceased, EstelitoNogaliza; that these three accused were included in the case only much later after the filing of this case against PableoDramayo and PaternoEcubin; the consistent contention of the accused Modesto Ronquilla that he was out in the sea fishing during the night in question; and the testimonies of the accused PrioloBillona [and] Francisco [and their witnesses,] Juan Billona, Esperanza OposaBillona, Guillerma Ponce, and AnselmoLisondra, given in a straight-forward manner, without hesitation, revealing a clear conscience, and the fact that the testimonies of these

43

witnesses have not been refuted by the PC soldiers (whom they accused of maltreatment] when they were available to the prosecution, cause the Court to entertain a very serious doubt as to the guilt of the said accused." 4

The lower court was hardly impressed with the defense of alibi interposed by now appellants Dramayo and Ecubin, and it must have been their lack of persuasive character that must have led to the able brief of counsel de oficio, Atty. Arturo E. Balbastro, stressing the absence of evidence sufficient to convict, there still being a reasonable doubt to be implied from the fact that while conspiracy was alleged, only two of the seven accused were held culpable. To repeat, a meticulous appraisal of the evidence justifies a finding of the guilt of the appellants for the offense charged, thus calling for the affirmance of the decision.

1. It is to be admitted that the starting point is the Presumption of innocence. So it must be, according to the Constitution. 5 That is a right safeguarded both appellants. Accusation is not, according to the fundamental law, synonymous with guilt. It is incumbent on the prosecution demonstrate that culpability lies. Appellants were not even called upon then to offer evidence on their behalf. Their freedom is forfeit only if the requisite quantum of proof necessary for conviction be in existence. Their guilt be shown beyond reasonable doubt. To such a standard this Court has always been committed. There is need, therefore, for the most careful scrutiny of the testimony of the state, both oral and documentary, independently whatever defense is offered by the accused. Only if judge below and the appellate tribunal could arrive at a conclusion that the crime had been committed precisely by the person on trial under such an exacting test should sentence be one of conviction. It is thus required that circumstance favoring his innocence be duly taken into count. The proof against him must survive the reason; the strongest suspicion must not be permitted to sway away judgment. The conscience must be satisfied that on the defendant could be laid the responsibility for the offense charged; that not only did he perpetrate the act but that it amounted to a crime. What is required then is moral certainty.

So it has been held from the 1903 decision of United States v. Reyes. 6 United States v. Lasada, 7 decided in 1910, yields this excerpt: "By reasonable doubt is meant that which of possibility may arise, but it is doubt engendered by an investigation of the whole proof and an inability, after such investigation, to let the mind rest easy upon the certainty of guilt. Absolute certain of guilt is not demanded by the law to convict of any carnal charge but moral certainty is required, and this certainty is required as to every proposition of proof regular to constitute the offense." 8 To the same effect is an excerpt from the opinion of the late Justice Tuason in People v. Esquivel. 9 Thus: "In this connection it may not be out of place to bring to the attention of prosecuting attorneys the absolute necessity of laying before the court the pertinent facts as their disposal with methodical and meticulous attention, clarifying contradictions and filling up gaps and loopholes in their evidence, to the end that the court's mind may not be tortured by doubts, that the innocent may not suffer and the guilty not escape unpunished. Obvious to all, this is the prosecution's prime duty to the court, to the accused, and to the state." 10

It is understandable why the stress should be on the absence of sufficient evidence to establish the guilt of appellants beyond reasonable doubt, the defense of alibi interposed hardly meriting any further discussion. It cannot be denied though that the credible and competent evidence of record resulted in moral certainty being entertained not only by the trial judge but by us as to the culpability of appellants. The force of the controlling doctrines, on the other hand, required that the other three accused be acquitted precisely because, unlike in the case of appellants, the requisite quantum of proof to show guilt beyond reasonable doubt was not present. There is no question as to the other two who testified for the state being likewise no long subject to any criminal liability. The reference then to opinion of the late Justice Laurel, stressing the need for adhering to the fundamental postulate that a finding of guilt is allowable only when no reasonable doubt could be entertained, is unavailing. This is evident from the very citation in the brief of appellants of the opinion of Justice Laurel in People v. Manoji.11 Thus: "Upon the other hand there are certain facts which if taken together are sufficient to raise in the mind of the court a grave doubt as to the guilt of the defendant-appellant, 'that doubt engendered by an investigation of the whole proof and an inability after such investigation, to let the mind rest easy upon the certainty of guilt.' (U.S. v. Lasada [1910], 18 Phil. 90, 96.) The finding of the two gold teeth of the deceased the suitcase of

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Maradani, and the testimony of ErajioEllo that he gave the hat ... to Maradani not only engender serious doubt in our minds as to the guilt of the appellant but also seems to sustain the theory of the defense and strengthen the suspicion of the trial court, that Maradani and Salupudin are not foreign to, or entirely ignorant of, the killing of SeijinIge. In the light of the facts and circumstances of record, we feel that it is better to acquit a man upon the ground of reasonable doubt, even though he may in reality be guilty, than to confine in the penitentiary for the rest of his natural life a person who may be innocent. ..." 12 The facts of the present case certainly do not fit within the above mold. Reliance on the part of appellants on the above decision is therefore futile.

The judgment of conviction should not have occasioned any surprise on the part of the two appellants, as from the evidence deserving of the fullest credence, their guilt had been more than amply demonstrated. The presumption of innocence could not come to their rescue as it was more than sufficiently overcome by the proof that was offered by the prosecution. What would have been a blot on the law is that if, on the facts as established, no reasonable doubt being entertained, the two appellants would have been acquitted likewise just because the other five defendants, for the reasons above stated, were not similarly sentenced. The principal contention raised is thus clearly untenable. It must be stated likewise that while squarely advanced for the first time, there had been cases where this Court, notwithstanding a majority of the defendants being acquitted, the element of conspiracy likewise being allegedly present, did hold the party or parties, responsible for the offense guilty of the crime charged, a moral certainty having arisen as to their capability. 13

2. The brief for appellants did seek to fortify the allegation as to their guilt not having been sufficiently demonstrated with the contention that the lower court overlooked or did not properly consider material and significant facts of record that ought to have substantially affected or altered the judgment. Even the most careful reading of such brief, however, with due recognition of the vigor in which this particular point is pressed, would not destroy the credibility of the facts as testified to concerning the manner in which the deceased was killed and the motive that prompted appellants to put an end to his life. That such a version could not have been concocted is shown by the undeniable fact that the two appellants were duly convicted of robbery, with the deceased as the offended party. It was understandable then why they would want to do away with the principal witness against them. There was thus a strong inducement for the appellants to have committed this crime of murder. With the testimony of record pointing to no other conclusion except the perpetration of the killing by them, the effort of their counsel, while to be expected from an advocate zealous in defense of his clients' rights, certainly should not be attended with success. It suffices to reiterate the well-settled principle that this Court has invariably respected the findings of facts of a trial judge who was in a position to weigh and appraise the testimony before him except when, as was not shown in this case, circumstances weight or influence were ignored or disregarded by him. 14

WHEREFORE, the judgment of September 8, 1965 affirmed with the modification that the indemnification to the heirs of EstelitoNogaliza should be in the sum P12,000.00. With costs.

HAYDEE HERRAS TEEHANKEE,  vs. LEOPOLDO ROVIRA, ANTONIO QUIRINO, and POMPEYO DIAZ, 

Petitioner HaydeeHerrasTeehankee is a political detainee delivered by the Counter Intelligence Corps, United States Army, to the Commonwealth Government, pursuant to the Proclamation of General of the Army Douglas MacArthur, dated December 29, 1944. She was one of the petitioners in case No. L-44, "Raquiza vs. Bradford," of this court (p. 50, ante). She is now confined in the Correctional Institution for Women under the custody of the Commonwealth Government since October, 1945, when she was thus delivered to the said government.

Under the date of October 2, 1945, petitioner, through her husband, Alberto Teehankee, filed with the People's Court a petition wherein, invoking the provisions of Executive Order No. 65, promulgated by His Excellency, the President of the Philippines, dated September 3, 1945, she prayed that her immediate release be ordered on the ground that no evidence exists upon which she could be charged with any act punishable by law, or, alternatively, that the People's Court fix

45

the bail for her provisional liberty, in conformity with the aforesaid executive order, and upon approval of such bail, that an order be forthwith issued directing then officer having official custody of her person to immediately release her.

On October 4, 1945, the Hon. Antonio Quirino, one of the Associate Judges of the People's Court, upon considering the said petition, required the Solicitor General "to file his comment and recommendation as soon as possible."

On October 5, 1945, the Solicitor General filed recommendation in compliance with said order, stating: "that on the strength of the evidence at hand, the reasonable basil recommended for the provisional release of the petitioner be fixed at Fifty Thousand Pesos (50,000)."

On October 9, 1945, the Hon. Leopoldo Rovira, Presiding Judge of the People's Court, entered an order referring the petition for provisional release above mentioned for consideration by the Fifth Division of said Court, but adding the following statement: "in my opinion, it should be denied notwithstanding the recommendation of the Solicitor General for her provisional release under a bond of Fifty Thousand Pesos (50,000)."

On the same date, October 9, 1945, the Hon. Pompeyo Diaz, Associate Judge of said Court, entered an order disposing of said petition and denying the same "in view of the gravity of the offense as can be deduced from the fact that the office of the Special Prosecutors recommends as high as Fifty Thousand Pesos (50,000) for her provisional release."

A motion having been filed by petitioner with the People's Court praying said court to reconsider its order of October 9, 1945, denying her petition for provisional release the Court, through Associate Judge Pompeyo Diaz, denied said motion.

In her present petition for the writs of certiorari and mandamus originally filed with this Court on October 19, 1945, petitioner avers that the above-mentioned Judges of the People's Court, in denying her petition for provisional liberty under bail, as well as her motion for reconsideration, acted in excess of jurisdiction and with grave abuse of discretion. Paragraph VII of this petition contains her allegations in support of this charge.

Under the date of October 21, 1945, respondent Judge Pompeyo Diaz filed his answer stating that the order denying bail "was issued under express mandate of the law", citing section 19 of Commonwealth Act No. 682.

Article III, section 1 (16) of the Commonwealth Constitution provides that:

All persons shall before conviction be bailable by sufficient sureties, except those charged with capital offenses when evidence of guilt is strong. Excessive bail shall not be required.

Rule 110 of the Rules of Court provides in the following sections:

SEC. 3. Offenses less than capital before conviction by the Court of First Instance. - After judgement by a justice of the peace and before conviction by the court of First Instance, the defendant shall be admitted to bail as of right.

SEC. 4. Noncapital offenses after conviction by the Court of First Instance. - After conviction by the Court of First Instance, defendant may, upon application, be bailed at the discretion of the court.

SEC. 5. Capital offenses defined. - A capital offense, as the term the time of its commission, and at the time of the application to be admitted to bail, may be punished by death.

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SEC. 6. Capital offense not bailable. - No person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong.

SEC. 7. Capital offenses - burden of proof. - On the hearing of an application for admission to bail made by any person who is in custody for the commission of a capital offense, the burden of showing that evidence of guilt is strong is on the prosecution.

SEC. 8. Notice of application to fiscal. - When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to the fiscal.

Section 66 of General Orders, No. 58 stipulates:

When admission to bail is a matter of discretion, the court must require that reasonable notice of the hearing of the application for bail be given to thepromotor fiscal.

Section 19 of Commonwealth Act No. 682 contains the following proviso:

SEC. 19. . . . Provided, however, That existing provisions of law to the contrary notwithstanding, the aforesaid political prisoners may, in the discretion of the People's Court, after due notice to the office of Special Prosecutors and hearing, be released on bail, even prior to the presentation of the corresponding information, unless the Court finds that there is strong evidence of the commission of a capital offense. . . . .

Section 22 of Commonwealth Act No. 682 ordains:

SEC. 22. The prosecution, trial and disposal of cases before the People's Court shall be governed by existing laws and rules of court, unless otherwise expressly provided herein . . . .

Against the petitioner herein no information had yet been presented when she filed her petition dated October 2, 1945, containing the alternative prayer for the fixing of bail for her provisional liberty. She there invokes Executive Order No. 65 of the President of the Philippines, date September 3, 1945. The proviso above quoted from section 19 of the People's Court Act (Commonwealth At No. 682) also existed in the statute books at the time.

The able arguments adduced on both sides have received the most careful consideration of the Court as befits the importance of the questions involved. However, in the view we take of the case, a majority of the Court are of opinion that the only question calling for decision at this time are: (1) whether Article III, section 1 (16) of the Commonwealth Constitution is applicable to the instant case; (2) whether a hearing should be held of the application for bail with attendance of the petitioner and the Solicitor General or the latter's representative; and (3) if so, what kind of hearing it should be.

1. As to the first question, we hold that Article III, section 1 (16) of the Commonwealth Constitution is applicable to the instant case. This Constitutional mandate refers to all persons, not only to persons against whom a complaint or information has already been formally filed. It lays down the rule that all persons shall before conviction be bailable except those charged with capital offenses when evidence of guilt is strong. According to this provision, the general rule is that any person, before being convicted of any criminal offense, shall be bailable, except when he is charged with a capital offense and the evidence of his guilt is strong. Of course, only those persons who have been either arrested, detained or otherwise deprived of their liberty will ever have occasion to seek the benefits of said provision. But in order that a person can invoke this constitutional precept, it is not necessary that he should wait until a formal complaint or information is filed against him. From the moment he is placed under arrest, detention or restraint by the officers of the law, he can claim this guarantee of the Bill of Rights, and this right he retains unless and until he is charged with a capital offense and evidence of his guilt is strong. Indeed if, as admitted on all sides, the precept protects those already charged under a formal complaint or information, there seems to be no legal or just

47

reason for denying its benefits to one as against whom the proper authorities may even yet conclude that there exists no sufficient evidence of guilt. To place the former in a more favored position than the latter would be, to say the least, anomalous and absurd. If there is a presumption of innocence in favor of one already formally charged with criminal offense (Constitution, Article III, section 1[17], a fortiori, this presumption should be indulged in favor of one not yet so charged, although already arrested or detained.

In Cooleys Constitutional Limitations, 7th edition, pages 436-438, we read the following:

Perhaps the most important of the protections to personal liberty consists in the mode of trial which is secured to every person accused of crime. At the common law, accusations of felony were made in the form of an indictment by a grand jury; and this process is still retained in many of the States, while others have substituted in its stead an information filed by the prosecuting officer of the State or county. The mode of investigating the facts, however, is the same in all; and this is through a trial by jury, surrounded by certain safeguards which are a well-understood part of the system, and which the government cannot dispense with.

First, we may mention that the humanity of our law always presumes an accused party innocent until he is proved to be guilty. This is a presumption which attends all the proceedings against him, from their initiation until they result in a verdict, which either finds the party guilty or converts the presumption of innocence into an adjudged fact.

If there were any mode short of confinement which would, with reasonable certainty, insure the attendance of the accused to answer the accusation, it would not be justifiable to inflict upon him that indignity, when the effect is to subject him, in a greater or less degree, to the punishment of a guilty person, while as yet it is not determined that he has committed any crime. If the punishment on conviction cannot exceed in severity the forfeiture of a large sum of money, then it is reasonable to suppose that such a sum of money, or an agreement by responsible parties to pay it to the government in case the accused should fail to appear, would be sufficient security for his attendance; and therefore, at the common law, it was customary to take security of this character in all cases of misdemeanor; one or more friends of the accused undertaking for his appearance for trial, and agreeing that a certain sum of money should be levied of their goods and chattels, lands and tenements, if he made default. But in the case of felonies, the privilege of giving bail before trial was not a matter of right; and in this country, although the criminal code is much more merciful than it formerly was in England, and in some cases the allowance of bail is almost a matter of course, there are others in which it is discretionary with the magistrate to allow it or not, and where it will sometimes be refused if the evidence of guilty is strong or the presumption great. Capital offenses are not generally regarded as bailable; at least, after indictment, or when the party is charged by the finding of a coroner's jury; . . . ."

All the Justice Cooley says in the foregoing quotations regarding the humanity of the law in his jurisdiction and its presumption that an accused party is innocent until he is proved to be guilty, is distinctly true also in ours where the constitutional, statutory, and reglementary provisions on the point have been borrowed from America. The same should be said of what he says regarding the granting of bail for provisional liberty before conviction, and even after, in exceptional cases, of course, always subject to the limitation established by our own Constitutional, laws and rules of court. From the last part of said quotation it follows, firstly, that before indictment or charge by the corner's jury, in the jurisdiction to which the author refers, there may be cases in which even a capital offense is bailable, and, secondly, that even after indictment or the finding of a corner's jury in these jurisdictions, there may be exceptional cases where a capital offense is still bailable. Under our Constitution, as we have seen, all offenses are bailable before conviction except capital offenses when evidence of guilt is strong. In consonance with this constitutional provision, section 3 of Rule 110 of the Rules of Court stipulates that non-capital offenses before conviction by the Court of First Instance shall be bailable as of right; section 4 of the same Rule provides that after conviction by the Court of First Instance such offense may, upon application, be bailable at the discretion of the court; and section 6 of the said Rule provides that "no person in custody for the commission of a capital offense shall be admitted to bail if the evidence of his guilt is strong."

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By the common law, all offenses including treason, murder, and other felonies, were bailable before indictment found, although the granting or refusing of such bail in case of capital offenses was a matter within the discretion of the court. (6 C. J., 953; emphasis supplied.)

2. As to the second question, we hold that upon application by a political prisoner or detainee to the People's Court for provisional release under bail, a hearing, summary or otherwise, should be held with due notice to the Office of Special Prosecutors, as well as to the prisoner or detainee. It will be remembered that section 22 of the People's Court Act subjects the prosecution, trial, and disposal of cases before the People's Court to existing laws and rules of court," unless otherwise expressly provide in said act. Consequently, the hearing and disposal of application for bail for provisional release before the People's Court should be governed by existing laws and rules of court, the hearing and disposal of such applications being a mere part of the "prosecution, trial, and disposal" of the corresponding cases before said court. If attention should be directed to the clause "unless otherwise expressly provided herein " in said section 22, in connection with the first proviso of section 19 of the same act, it should be borne in mind that the provisions of said act should be construed in harmony with those of the Constitution, under the well-settled rule of the statutory construction that legislative enactments should be construed, wherever possible, in manner that would avoid their conflicting with the fundamental law.

3. As to the third question. While it is true that the Solicitor General on October 3, 1945, recommended Fifty Thousand Pesos (P50,000) as a reasonable bail "on the strength of the evidence at hand," it may happen that thereafter his office may have secured additional evidence which in addition to or in connection with the already possessed, in his opinion is sufficiently strong to prove petitioner's guilt for a capital offense, in which case, he may yet decide to oppose the application for bail heretofore filed by petitioner at the hearing thereof hereinafter ordered. It will be remembered that petitioner, while under the custody of the Counter Intelligence Corps, United States Army, was charged with ( a) "Active Collaboration with the Japanese" and ( b) "Previous Association with the enemy" (Raquiza vs. Bradford, p. 50, ante). Under the definition of the treason in the Revised Penal Code, active collaboration with the Japanese and association with them during the war in the Philippines may constitute treason, a capital offense.

ART. 114. Any person who, owing allegiance to the United States or the Government of the Philippine Islands, not being a foreigner, . . . adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed 20,000 pesos. (Revised Penal Code.)

Of course, it may also happen that either because no such further evidence has come into his possession or because, in his judgement, the public interest would be better served by him withholding the evidence that he has until the trial in the merits, he would prefer not to oppose the application for bail. At the hearing of the application the Solicitor General will be free to adopt one course or the other. If he opposes, the burden of proof will be on him to show the petitioner is not entitled to bail. Petitioner will have the right to offer evidence to prove her right thereto. In fine, the hearing is for the purpose of enabling the People's Court to exercise its sound discretion as to whether or not under the Constitution and laws in force petitioner is entitled to provisional release under bail.

WHEREFORE, it is the judgement of this Court that: (a) the order of the People's Court, dated October 9, 1945, denying petitioner's petition for provisional release under bail, and the order of said Court, dated October 13, 1945, denying petitioner's motion for reconsideration of said order of October 9, 1945, which we declare to have been entered with grave abuse of discretion, be set aside; and (b) that for the proper application of the pertinent constitutional, statutory, and reglementary provisions alluded to in the body of this decision, a hearing of the petitioner's application for bail be held before the People's Court with due notice to the Solicitor General, as well as to the petitioner, as hereinabove outlined, said hearing, whether summary or otherwise, to be such as would enable the People's Court to exercise its sound discretion in the disposal of the aforesaid petition. Without costs.So ordered.

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PEOPLE OF THE PHILIPPINES, vs. SANDIGANBAYAN (Special Division) and JOSE "JINGGOY" ESTRADA

The instant petition for certiorari under Rule 65 of the Rules of Court seeks to reverse and set aside the Resolution1 of herein respondent Sandiganbayan (Special Division) issued on March 6, 2003 in Criminal Case No. 26558, granting bail to private respondent Senator Jose "Jinggoy" Estrada (hereafter "Jinggoy" for brevity), as effectively reiterated in its Resolution2 of May 30, 2003, denying the petitioner’s motion for reconsideration.

The factual antecedents which gave rise to this proceeding are set forth in the Court’s Decision 3 of February 26, 2002, in G.R. No. 148965, to wit:

In November 2000, as an offshoot of the impeachment proceedings against Joseph Ejercito Estrada, then President of the Republic of the Philippines, five criminal complaints against the former President and members of his family, his associates, friends and conspirators were filed with the … Office of the Ombudsman.

On April 4, 2001, the … Ombudsman issued a Joint Resolution finding probable cause warranting the filing with the Sandiganbayan of several criminal Informations against the former President and the other respondents therein. One of the Informations was for the crime of plunder under Republic Act [RA] No. 7080 and among the respondents was herein petitioner Jose "Jinggoy" Estrada, then mayor of San Juan, Metro Manila.

The Information was amended and filed on April 18, 2001. Docketed as Criminal Case No. 26558, the case was assigned to [the] respondent Third Division of the Sandiganbayan. xxx. (Emphasis added.)

The amended information referred to, like the original, charged respondent Jinggoy, together with the former President and several others, with plunder, defined and penalized under RA No. 7080, as amended by Section 12 of RA No. 7659, allegedly committed as follows:

That during the period from June, 1998 to January, 2001, in the Philippines, and within the jurisdiction of this Honorable Court, accused Joseph Ejercito Estrada, THEN A PUBLIC OFFICER,  … , by himself AND/OR inCONNIVANCE/CONSPIRACY with his co-accused, WHO ARE MEMBERS OF HIS FAMILY,  RELATIVES BY AFFINITY OR CONSANGUINITY ,  BUSINESS ASSOCIATES ,  SUBORDINATES AND/OR OTHER PERSONS,  BY TAKING UNDUE ADVANTAGE OF HIS OFFICIAL POSITION,  AUTHORITY ,  RELATIONSHIP ,  CONNECTION ,  OR INFLUENCE , did then and there wilfully (sic), unlawfully and criminally amass, accumulate and acquire BY HIMSELF,  DIRECTLY OR INDIRECTLY, ill-gotten wealth in the aggregate amount OR TOTAL VALUE of FOUR BILLION NINETY SEVEN MILLION EIGHT HUNDRED FOUR THOUSAND ONE HUNDRED SEVENTY THREE PESOS AND SEVENTEEN CENTAVOS [P4,097,804,173.17], more or less, THEREBY UNJUSTLY ENRICHING HIMSELF OR THEMSELVES AT THE EXPENSE AND TO THE DAMAGE OF THE FILIPINO PEOPLE AND THE REPUBLIC OF THE PHILIPPINES, through ANY OR A combination OR A series of overt OR criminal acts, OR SIMILAR SCHEMES OR MEANS, described as follows:

(a) by receiving OR collecting, directly or indirectly, on SEVERAL INSTANCES,  MONEY IN THE AGGREGATE AMOUNT OF…   (P545,000,000.00),  MORE OR LESS ,  FROM ILLEGAL GAMBLING IN THE FORM OF GIFT,  SHARE ,  PERCENTAGE ,  KICKBACK OR ANY FORM OF PECUNIARY BENEFIT,  BY HIMSELF AND/OR  in connivance with co-accused … Jose ‘Jinggoy’ Estrada, …, [and] JOHN DOES AND JANE DOES,  in consideration OF TOLERATION OR PROTECTION OF ILLEGAL GAMBLING;

(b) by DIVERTING, RECEIVING, misappropriating, converting OR misusing DIRECTLY OR INDIRECTLY, forHIS OR THEIR PERSONAL gain and benefit, public funds … [P130,000,000.00], more or less, representing a portion of the … [P200,000,000] tobacco excise tax share allocated for the Province of Ilocos Sur under R.A. No. 7171, BY HIMSELF AND/OR in CONNIVANCE with co-accused Charlie ‘Atong’ Ang, Alma Alfaro,JOHN DOE

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a.k.a. Eleuterio Tan OR Eleuterio Ramos Tan or Mr. Uy, and Jane Doe a.k.a. Delia Rajas, AND OTHER JOHN DOES AND JANE DOES;

(c) by directing, ordering and compelling, FOR HIS PERSONAL GAIN AND BENEFIT, the Government Service Insurance System (GSIS) TO PURCHASE 351,878,000 SHARES OF STOCK MORE OR LESS, and the Social Security System (SSS), 329,855,000 SHARES OF STOCK MORE OR LESS,  OF THE BELLE CORPORATION IN THE AMOUNT OF MORE OR LESS …   [P744,612,450.00],  RESPECTIVELY ,  OR A TOTAL OF MORE OR LESS …   [P1,847,578,057.50]; AND BY COLLECTING OR RECEIVING,  DIRECTLY OR INDIRECTLY ,  BY HIMSELF AND/OR IN CONNIVANCE WITH JOHN DOES AND JANE DOES,COMMISSIONS OR PERCENTAGES BY REASON OF SAID PURCHASES OF SHARES OF STOCK IN THE AMOUNT …   [P189,700,000.00],  MORE OR LESS ,  FROM THE BELLE CORPORATION WHICH BECAME PART OF THE DEPOSIT IN THE EQUITABLE-PCI BANK UNDER THE ACCOUNT NAME "JOSE VELARDE";

(d) by unjustly enriching himself FROM COMMISSIONS,  GIFTS ,  SHARES ,  PERCENTAGES ,  KICKBACKS ,OR ANY FORM OF PECUNIARY BENEFITS,  IN CONNIVANCE WITH JOHN DOES AND JANE DOES , in the amount of MORE OR LESS … [P3,233,104,173.17] AND DEPOSITING THE SAME UNDER HIS ACCOUNT NAME "JOSE VELARDE" AT THE EQUITABLE-PCI BANK. 4

What transpired next are narrated in the same February 26, 2002 Decision in G.R. No. 148965, thus:

On April 25, 2001, the respondent court issued a warrant of arrest for [Jinggoy] and his co-accused. On its basis, [Jinggoy] and his co-accused were placed in custody of the law.

On April 30, 2001, [Jinggoy] filed a "Very Urgent Omnibus Motion" alleging that: (1) no probable cause exists to put him on trial and hold him liable for plunder, it appearing that he was only allegedly involved in illegal gambling and not in a "series or combination of overt or criminal acts" as required in R.A. No. 7080; and (2) he is entitled to bail as a matter of right. [He] prayed that he be excluded from the Amended Information …. In the alternative, [he] also prayed that he be allowed to post bail …..

On June 28, 2001, [he] filed a "Motion to Resolve Mayor Jose ‘Jinggoy’ Estrada’s Motion To Fix Bail On Grounds That An Outgoing Mayor Loses Clout An Incumbent Has And That On Its Face, the Facts Charged In The Information Do Not Make Out A Non-Bailable Offense As To Him."

x xx           x xx          x xx

On July 9, 2001, respondent Sandiganbayan issued a Resolution denying [Jinggoy’s] "Motion to Quash and Suspend" and "Very Urgent Omnibus Motion." [His] alternative prayer to post bail was set for hearing after arraignment of all accused. xxx

x xx           x xx          x xx

The following day, July 10, 2001, [Jinggoy] moved for reconsideration of the Resolution. Respondent court denied the motion and proceeded to arraign [him]. [He] refused to make his plea prompting respondent court to enter a plea of "not guilty" for him.5 (Emphasis and words in brackets added)

From the denial action of the Sandiganbayan immediately adverted to, Jinggoy interposed a petition for certiorari before this Court claiming that the respondent Sandiganbayan committed grave abuse of discretion in, inter alia, (a) sustaining the charge against him for alleged offenses and with alleged conspirators with whom he is not even connected, and (b) in not fixing bail for him. Pending resolution of this petition, docketed as G.R. No. 148965, Jinggoy filed with the Sandiganbayan an "Urgent Second Motion for Bail for Medical Reasons." The Ombudsman opposed the motion. For

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three (3) days in September 2001, the Sandiganbayan conducted hearings on the motion for bail, with one Dr. Roberto Anastacio of the Makati Medical Center appearing as sole witness for Jinggoy.6

On December 18, 2001, Jinggoy filed with the Court an Urgent Motion praying for early resolution of his Petition for Bail on Medical/Humanitarian Considerations." He reiterated his earlier plea for bail filed with the Sandiganbayan. On the same day, the Court referred the motion to the Sandiganbayan for resolution and directed said court to make a report, not later than 8:30 in the morning of December 21, 2001.7

The report was submitted as directed. Attached to the Report was a copy of the Sandiganbayan’s Resolution dated December 20, 2001 denying Jinggoy’s motion for bail for "lack of factual basis." According to the graft court, basing its findings on the earlier testimony of Dr. Anastacio, Jinggoy "failed to submit sufficient evidence to convince the court that the medical condition of the accused requires that he be confined at home and for that purpose that he be allowed to post bail." 8

On February 26, 2002, the Court dismissed Jinggoy’s petition in G.R. No. 148965, on the following rationale:

The constitutional mandate makes the grant or denial of bail in capital offenses hinge on the issue of whether or not the evidence of guilt of the accused is strong. This requires that the trial court conduct bail hearings xxx. The burden of proof lies with the prosecution to show strong evidence of guilt.

This Court is not in a position to grant bail to [Jinggoy] as the matter requires evidentiary hearing that should be conducted by the Sandiganbayan. The hearings on which respondent court based its Resolution of December 20, 2001 involved the reception of medical evidence only and which evidence was given in September 2001, five months ago. The records do not show that evidence on petitioner’s guilt was presented before the lower court.

Upon proper motion of [Jinggoy], respondent Sandiganbayan should conduct hearings to determine if the evidence of [Jinggoy’s] guilt is strong as to warrant the granting of bail to [him].9 (Underscoring and words in brackets added).

On April 17, 2002, Jinggoy filed before the Sandiganbayan an Omnibus Application for Bail 10 against which the prosecution filed its comment and opposition. Bail hearings were then conducted, followed by the submission by the parties of their respective memoranda.

In the herein assailed Resolution11 of March 6, 2003, respondent Sandiganbayan (Special Division) granted the omnibus application for bail, disposing as follows:

WHEREFORE, in light of all the facts and applicable law and jurisprudence, JOSE "JINGGOY" ESTRADA’s "OMNIBUS APPLICATION FOR BAIL" dated April 16, 2002 is GRANTED. Bail for accused-movant is fixed at Five Hundred Thousand Pesos (Php500,000.00) to be paid in cash and his release is ordered upon the posting thereof and its approval, unless movant is being held for some other legal cause.

This resolution is immediately executory.

SO ORDERED.

Petitioner filed a motion for reconsideration thereto which the respondent court denied via the herein equally assailed May 30, 2003 Resolution,12 the dispositive part of which reads:

WHEREFORE, for lack of merit, the prosecution’s "MOTION FOR RECONSIDERATION [RE: GRANT OF JOSE "JINGGOY" ESTRADA’S PETITION FOR BAIL] dated 13 March 2003 is DENIED.

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SO ORDERED.

Hence, the present petition on the submission13 that respondent Special Division of the Sandiganbayan acted with grave abuse of discretion amounting to lack or excess of jurisdiction -

I.

IN GRANTING BAIL TO RESPONDENT JINGGOY ESTRADA,…[CONSIDERING] THE WELL-ESTABLISHED THEORY OF OVERLAPPING CONSPIRACIES AND, THUS, GRIEVOUSLY DISREGARDED THE APPLICATION OF ACCEPTED CRIMINAL LAW PRECEPTS AND THEREBY SET A DANGEROUS PRECEDENT.

II.

xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA WHEN IT FAILED TO RECOGNIZE THAT THE CONDUCT OF RESPONDENT JINGGOY ESTRADA POINTED TO A CONCURRENCE OF SENTIMENT OR CRIMINAL DESIGN INDICATING THE EXISTENCE OF A CONSPIRACY BETWEEN ACCUSED JOSEPH ESTRADA AND JINGGOY ESTRADA.

III.

xxx WHEN IT GRANTED BAIL TO RESPONDENT JINGGOY ESTRADA CONSIDERING THAT THE UNDISPUTED FACT CLEARLY EVIDENCES THAT RESPONDENT JINGGOY ESTRADA, EVEN WITHOUT A FINDING OF CONSPIRACY, IS EQUALLY GUILTY AND LIABLE AS ACCUSED JOSEPH ESTRADA HIMSELF BY HIS INDISPENSABLE COOPERATION AND/OR DIRECT PARTICIPATION IN THE COMMISSION OF THE CRIME OF PLUNDER.

IV.

xxx WHEN IT LIMITED THE CONSIDERATION OF THE EVIDENCE, AS WELL AS THE POTENTIAL [LIABILITY] OF RESPONDENT JINGGOY ESTRADA, TO SUBPARAGRAPH "A" OF THE AMENDED INFORMATION.

The imputation of grave abuse of discretion to the public respondent is untenable.

To begin with, Section 13 of Article III (Bill of Rights) of the Constitution mandates:

Section 13. All persons, except those charged with offenses punishable by reclusion perpetua when evidence of guilt is strong, shall, before conviction, be bailable by sufficient sureties, or be released on recognizance as may be provided by law. xxx.

Even if the capital offense charged is bailable owing to the weakness of the evidence of guilt, the right to bail may justifiably still be denied if the probability of escape is great. 14 Here, ever since the promulgation of the assailed Resolutions a little more than four (4) years ago, Jinggoy does not, as determined by Sandiganbayan, seem to be a flight risk. We quote with approval what the graft court wrote in this regard:

It is not open to serious doubt that the movant [Jinggoy] has, in general, been consistently respectful of the Court and its processes. He has not ominously shown, by word or by deed, that he is of such a flight risk that would necessitate his continued incarceration. Bearing in mind his conduct, social standing and his other personal circumstances, the possibility of his escape in this case seems remote if not nil.15

The likelihood of escape on the part individual respondent is now almost nil, given his election on May 10, 2004, as Senator of the Republic of the Philippines. The Court takes stock of the fact that

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those who usually jump bail are shadowy characters mindless of their reputation in the eyes of the people for as long as they can flee from the retribution of justice. On the other hand, those with a reputation and a respectable name to protect and preserve are very unlikely to jump bail. The Court, to be sure, cannot accept any suggestion that someone who has a popular mandate to serve as Senator is harboring any plan to give up his Senate seat in exchange for becoming a fugitive from justice.

Petitioner’s first argument denigrates as grave abuse of discretion the public respondent’s rejection of the theory of overlapping conspiracies, which, in the abstract, depicts a picture of a conspirator in the first level of conspiracy performing acts which implement, or in furtherance of, another conspiracy in the next level of which the actor is not an active party. As the petitioner’s logic goes following this theory, respondent Jinggoy is not only liable for conspiring with former President Estrada in the acquisition of ill-gotten wealth from "jueteng" under par. (a) of the amended information. He has also a culpable connection with the conspiracy, under par. (b), in the diversion of the tobacco excise tax and in receiving commissions and kickbacks from the purchase by the SSS and GSIS of Belle Corporation shares and other illegal sources under par. (c) and (d), albeit, he is not so named in the last three paragraphs. And since the central figure in the overlapping conspiracies, i.e., President Estrada, is charged with a capital offense, all those within the conspiracy loop would be considered charged with the same kind of non-bailable offense.

Explaining its point, petitioner cites People v. Castelo16 which, as here, also involves multiple levels of conspiracies. Just like in the present case where the lead accused is a former President no less, the prime suspect in Castelo was also a powerful high-ranking government official – a former Judge who later rose to hold, in a concurrent capacity, the positions of Secretary of Justice and Secretary of National Defense, to be precise. In Castelo, charges and countercharges were initially hurled by and between Castelo and Senator Claro Recto, who was then planning to present Manuel Monroy as star witness against Castelo in a scandal case. Castelo left the Philippines for Korea. While away, someone shot Monroy dead. Evidence pointed to a conspiracy led by a certain "Ben Ulo" (who appears to be the mastermind) and a group of confidential agents of the Department of National Defense, one of whom was the triggerman. Coincidentally, Ben Ulo was a close bodyguard of Castelo. In the end, the Solicitor General tagged Ben Ulo (not Castelo) as the central figure in the conspiracy. This notwithstanding, the Court held Castelo guilty beyond reasonable doubt for murder, because only he had a motive for desiring Monroy’s demise. The conspiracy between Castelo and Ben Ulo was then determined to be overlapping with the conspiracy between Ben Ulo and the confidential agents, one of whom was the triggerman.

Further explaining the theory of overlapping conspiracies, petitioner cites the ruling in People v. Ty Sui Wong,17featuring a love triangle involving a certain Victor and Mariano, each out to win the heart of Ruby. Victor left Manila for Mindanao. While Victor was away, the dead body of Mariano was found with multiple stab wounds in a dark alley in Pasay. Evidence pointed to a conspiracy among "Sampaloc hoodlums" who had no direct link with Victor. However, one of the neighbors of the "Sampaloc hoodlums" was a classmate of Victor. In the end, on the basis of interlocking confessions, the Court found Victor and his classmate together with all the "Sampaloc hoodlums" guilty of murder.

Positing the applicability of Castelo and Ty Sui Wong under the premises, petitioner presently argues:

It should be noted that this is the same scenario of accused Joseph Estrada conspiring with former Gov. Singson for the collection and receipt of bribes (jueteng protection money); and of former Gov. Singson involving respondent Jinggoy Estrada in yet another level of conspiracy in pursuit of the first, i.e., the regular collection of jueteng protection money for accused Joseph Estrada; and, respondent Jinggoy Estrada, aware of the details of the conspiracy between accused Joseph Estrada and Gov. Singson, agreeing to remit the greater part of his collection of bribes to accused Joseph Estrada as its ultimate beneficiary. Thus, respondent Jinggoy Estrada reached an agreement with former Gov. Singson, executed the plan and participated in furtherance of the conspiracy for the receipt and collection of jueteng protection money, i.e., collecting P3 Million in jueteng protection

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money every month; remitting P2 Million thereof to former Gov. Singson for delivery to accused Joseph Estrada and retaining P1 Million thereof for himself.

Similarly, therefore, respondent Jinggoy Estrada should have been denied bail since he is as guilty and liable as accused Joseph Estrada for the non-bailable offense of Plunder.18

As we see it, the rulings in Castelo and Ty Sui Wong are not on all-fours applicable to and of governing sway to the issue of the propriety of revoking Jinggoy’s release on bail.

As it were, the petitioner erroneously equates the provisional grant of bail to respondent Jinggoy to his virtual acquittal in Criminal Case No. 26558. Petitioner is wrong. Castelo and Ty Sui Wong contextually dealt with the guilt of culprits therein for the crimes of murder after all the evidence had been adduced. Unlike in this proceeding, the propriety of a grant of bail, given the evidence for or against the bail application, was not an issue in Castelo and Ty Sui Wong. And in the present case, respondent Sandiganbayan is still in the process of determining the facts and merits of the main case. In the words of the public respondent:

As a cautionary parting word, it must be categorically stated herein that in making the above pronouncements, this Court [Sandiganbayan] is not making any judgment as to the final outcome of this case either with respect to movant [Jinggoy] or with respect to accused Estrada. This Court [Sandiganbayan] is simply called to determine whether, at this stage, the evidence of movant's guilt is strong as to warrant his temporary release on bail. xxx.19

Revoking the bail thus granted to respondent Jinggoy, as the petitioner urges, which necessarily implies that the evidence of his guilt is strong, would be tantamount to pre-empting the Sandiganbayan’s ongoing determination of the facts and merits of the main case.

Petitioner’s second and third arguments focus on the possible degrees of participation of Jinggoy in the crime of Plunder. Noticeably, both arguments, if pursued to their respective logical conclusions, tend to cancel each other out, one leading as it were to a direction quite the opposite of the other. For while the second argument attempts to establish an "implied conspiracy" between Jinggoy and his father - hence, the guilt of one is the guilt of the other - the third argument eschews the idea of conspiracy, but respondent Jinggoy is nonetheless "equally guilty" as President Estrada because of his indispensable cooperation and/or direct participation in the crime of Plunder.

By statutory definition, conspiracy exists when two or more persons come to an agreement concerning the commission of a felony and decide to commit it.20 Venturing into the gray areas of the concept of conspiracy, petitioner cites the following obiter defining "implied conspiracy," thus:

When by their acts, two or more persons proceed toward the accomplishment of the same felonious object, with each doing his act, so that their acts though seemingly independent were in fact connected, showing a closeness of formal association and concurrence of sentiment, conspiracy may be inferred.21

Admittedly, direct proof is not essential to establish conspiracy. Since by its nature conspiracy is planned in utmost secrecy, it can rarely be proved by direct evidence. Consequently, the presence of the concurrence of minds which is involved in conspiracy may be inferred from proof of facts and circumstances which, taken together, apparently indicate that they are merely parts of some complete whole. If it is proved that two or more persons aimed by their acts towards the accomplishment of the same unlawful object, each doing a part so that their combined acts, though apparently independent, were in fact connected and cooperative, indicating a closeness of personal association and a concurrence of sentiment, a conspiracy may be inferred though no actual meeting among them to concert is proved. That would be termed an implied conspiracy.22

From the above pronouncements, petitioner then proceeds to present voluminous documents and transcripts of stenographic notes purporting to prove that Jinggoy had been deep inside the web of

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"implied conspiracy" under the second argument of this petition. From the "implied conspiracy" theory, it then shifts gears to embrace the "equally guilty" hypothesis under the fall-back third argument.

Regardless, however, of whatever legal strategy petitioner may have in mind, the fundamental principle that the Court is not a trier of facts remains.1avvphi1 Petitioner’s second and third arguments are to be sure relevant to the proceedings for the grant or denial of bail that were pending before in the Sandiganbayan. They are of little moment here where the only issue now is whether or not there was grave abuse of discretion on the part of the Sandiganbayan in granting bail to the private respondent.

With the view we take of this case, the respondent court did not commit grave abuse of discretion in issuing its assailed resolutions, because the grant of bail therein is predicated only on its preliminary appreciation of the evidence adduced in the bail hearing to determine whether or not deprivation of the right to bail is warranted. Needless to stress, a grant of bail does not prevent the trier of facts, the same Anti-Graft Court, from making a final assessment of the evidence after full trial on the merits. As jurisprudence teaches:

xxx Such appreciation [of evidence] is at best preliminary and should not prevent the trial judge from making a final assessment of the evidence before him after full trial. It is not an uncommon occurrence that an accused person granted bail is convicted in due course. 23

Petitioner’s last argument is, at bottom, an attempt to have the Court reverse in this case its earlier holding in another case - G.R. No. 148965 - where we stated:

The Amended Information, in its first two paragraphs, charges petitioner [Jinggoy] and his other co-accused with the crime of plunder. The first paragraph names all the accused, while the second paragraph describes in general how plunder was committed and lays down most of the elements of the crime itself. Sub-paragraphs (a) to (d) describe in detail the predicate acts that constitute the crime and name in particular the co-conspirators of former President Estrada in each predicate act. The predicate acts alleged in the said four sub-paragraphs correspond to the items enumerated in Section 1 (d) of R.A. No. 7080. Sub-paragraph (a) alleged the predicate act of receiving, on several instances, money from illegal gambling, in consideration of toleration or protection of illegal gambling, and expressly names petitioner [Jinggoy] as one of those who conspired with former President Estrada in committing the offense. This predicate act corresponds with the offense described in item [2] of the enumeration in Section 1 (d) of R.A. No. 7080. Sub-paragraph (b) alleged the predicate act of diverting, receiving or misappropriating a portion of the tobacco excise tax share allocated for the province of Ilocos Sur, which act is the offense described in item [1] in the enumeration in Section 1 (d) of the law. This sub-paragraph does not mention petitioner but instead names other conspirators of the former President. Sub-paragraph (c) alleged two predicate acts – that of ordering the … (GSIS) and the … (SSS) to purchase shares of stock of Belle Corporation, and collecting or receiving commissions from such purchase from the Belle Corporation which became part of the deposit in the "Jose Velarde" account at the Equitable-PCI Bank. These two predicate acts fall under items [2] and [3] in the enumeration of R.A. No. 7080, and was allegedly committed by the former President in connivance with John Does and Jane Does. Finally, sub-paragraph (d) alleged the predicate act that the former President unjustly enriched himself from commissions, gifts, kickbacks, in connivance with John Does and Jane Does, and deposited the same under his account name "Jose Velarde" at the Equitable-PCI Bank. This act corresponds to the offense under item [6] in the enumeration of Section 1 (d) of R.A. No. 7080.

From the foregoing allegations of the Amended Information, it is clear that all the accused named in sub-paragraphs (a) to (d), thru their individual acts, conspired with former President Estrada to enable the latter to amass, accumulate or acquire ill-gotten wealth …. As the Amended Information is worded, however, it is not certain whether the accused in sub-paragraphs (a) to (d) conspired with each other to enable the former President to amass the subject ill-gotten wealth. In light of this lack of clarity, petitioner cannot be penalized for the conspiracy entered into by the other accused

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with the former President as related in the second paragraph of the Amended Information in relation to its sub-paragraphs (b) to (d). We hold that petitioner can be held accountable only for the predicate acts [illegal gambling] he allegedly committed as related in sub-paragraph (a) of the Amended Information which were allegedly done in conspiracy with the former President whose design was to amass ill-gotten wealth amounting to more than P4 billion.24 (Emphasis added.)1avvphi1

Obviously hoping to maneuver around the above ruling so as to implicate individual respondent for predicate acts described in sub-paragraphs (b), (c) and (d) of the Amended Information, petitioner now argues:

It should be emphasized that in the course of the proceedings in the instant case, respondent Jinggoy Estrada waived the benefit of the said ruling and opted, instead, to participate, as he did participate and later proceeded to cross-examine witnesses whose testimonies were clearly offered to prove the other constitutive acts of Plunder alleged in the Amended Information under sub-paragraphs "b", "c" and "d".25

We disagree.

At bottom, the petitioner assumes that the ruling accorded "benefits" to respondent Jinggoy that were inexistent at the start of that case. But no such benefits were extended, as the Court did not read into the Amended Information, as couched, something not there in the first place. Respondent Jinggoy’s participation, if that be the case, in the proceedings involving sub-paragraphs "b," "c" and "d," did not change the legal situation set forth in the aforequoted portion of the Court’s ruling in G.R. No. 148965. For when it passed, in G.R. No. 148965, upon the inculpatory acts envisaged and ascribed in the Amended Information against Jinggoy, the Court merely defined what he was indicted and can be penalized for. In legal jargon, the Court informed him of the nature and cause of the accusation against him, a right guaranteed an accused under the Constitution.26 In fine, all that the Court contextually did in G.R. No. 148965 was no more than to implement his right to be informed of the nature of the accusation in the light of the filing of the Amended Information as worded. If at all, the Court’s holding in G.R. No. 148965 freed individual respondent from the ill effects of a wrong interpretation that might be given to the Amended Information.

In all, the Court rules that public respondent Sandiganbayan (Special Division) did not commit grave abuse of discretion when, after conducting numerous bail hearings and evaluating the weight of the prosecution’s evidence, it determined that the evidence against individual respondent was not strong and, on the basis of that determination, resolved to grant him bail.

As a final consideration, the Court notes a statement made by the respondent court which adds an appropriate dimension to its resolve to grant bail subject of this recourse. Wrote that court in its assailed resolution of March 6, 2003:

xxxCorollarily, it is not amiss to state that, at this time, there looms the possibility that, in case of conviction, [respondent Jinggoy’s] criminal liability would probably not warrant the death penalty or reclusion perpetua. (Underscoring in the original; Words in bracket added).

WHEREFORE, the instant petition is DISMISSED.