Republic of the Philippines
The defendant confessed
SUPREME COURT
Manila
EN BANC
G.R. No. L-13005 October 10, 1917
THE UNITED STATES, plaintiff-appellee,
vs.
AH SING, defendant-appellant.
Antonio Sanz for appellant.
Acting Attorney-General Paredes for
appellee.
MALCOLM, J.:
This is an appeal from a judgment of the Court
of First Instance of Cebu finding the defendant
guilty of a violation of section 4 of Act No. 2381
(the Opium Law), and sentencing him to two
years imprisonment, to pay a fine of P300 or to
suffer subsidiary imprisonment in case of
insolvency, and to pay the costs.
The following facts are fully proven: The
defendant is a subject of China employed as a
fireman on the steamship Shun Chang. The
Shun Chang is a foreign steamer which arrived
at the port of Cebu on April 25, 1917, after a
voyage direct from the port of Saigon. The
defendant bought eight cans of opium in
Saigon, brought them on board the steamship
Shun Chang, and had them in his possession
during the trip from Saigon to Cebu. When the
steamer anchored in the port of Cebu on April
25, 1917, the authorities on making a search
found the eight cans of opium above mentioned
hidden in the ashes below the boiler of the
steamer's engine.
that he was the owner of this opium, and that
he had purchased it in Saigon. He did not
confess, however, as to his purpose in buying
the opium. He did not say that it was his
intention to import the prohibited drug into the
Philippine Islands. No other evidence direct or
indirect, to show that the intention of the
accused was to import illegally this opium into
the Philippine Islands, was introduced.
Has the crime of illegal importation of opium
into the Philippine Islands been proven?
Two decisions of this Court are cited in the
judgment of the trial court, but with the
intimation that there exists inconsistently
between the doctrines laid down in the two
cases. However, neither decision is directly a
precedent on the facts before us.
In the case of United States vs. Look Chaw
([1910], 18 Phil., 573), in the opinion handed
down by the Chief Justice, it is found
That, although the mere possession of a thing
of prohibited use in these Islands, aboard a
foreign vessel in transit, in any of their ports,
does not, as a general rule, constitute a crime
triable by the courts of this country, on account
of such vessel being considered as an
extension of its own nationality, the same rule
does no apply when the article, whose use is
prohibited within the Philippine Islands, in the
present case a can of opium, is landed from the
vessel upon Philippine soil, thus committing an
open violation of the laws of the land, with
respect to which, as it is a violation of the penal
law in force at the place of the commission of
the crime, only the court established in the said
place itself has competent jurisdiction, in the
absence of an agreement under an
international treaty.1awphil.net
A marked difference between the facts in the
Look Chaw case and the facts in the present
instance is readily observable. In the Look
Chaw case, the charge case the illegal
possession and sale of opium in the present
case the charge as illegal importation of opium;
in the Look Chaw case the foreign vessel was
1
in transit in the present case the foreign
vessel was not in transit; in the Look Chaw
case the opium was landed from the vessel
upon Philippine soil in the present case of
United States vs. Jose ([1916], 34 Phil., 840),
the main point, and the one on which resolution
turned, was that in a prosecution based on the
illegal importation of opium or other prohibited
drug, the Government must prove, or offer
evidence sufficient to raise a presumption, that
the vessel from which the drug is discharged
came into Philippine waters from a foreign
country with the drug on board. In the Jose
case, the defendants were acquitted because it
was not proved that the opium was imported
from a foreign country; in the present case
there is no question but what the opium came
from Saigon to Cebu. However, in the opinion in
the Jose case, we find the following which may
be obiter dicta, but which at least is interesting
as showing the view of the writer of the opinion:
The importation was complete, to say the least,
when the ship carrying it anchored in Subic Bay.
It was not necessary that the opium discharged
or that it be taken from the ship. It was sufficient
that the opium was brought into the waters of
the Philippine Islands on a boat destined for a
Philippine port and which subsequently
anchored in a port of the Philippine Islands with
intent to discharge its cargo.
Resolving whatever doubt was exist as to the
authority of the views just quoted, we return to
an examination of the applicable provisions of
the law. It is to be noted that section 4 of Act
No. 2381 begins, "Any person who shall
unlawfully import or bring any prohibited drug
into the Philippine Islands." "Import" and "bring"
are synonymous terms. The Federal Courts of
the United States have held that the mere act of
going into a port, without breaking bulk, is prima
facie evidence of importation. (The Mary [U. S.],
16 Fed. Cas., 932, 933.) And again, the
importation is not the making entry of goods at
the custom house, but merely the bringing them
into port; and the importation is complete before
entry of the Custom House. (U. S. vs. Lyman
[U. S.], 26, Fed. Cas., 1024, 1028; Perots vs. U.
S., 19 Fed. Cas., 258.) As applied to the Opium
Law, we expressly hold that any person
unlawfully imports or brings any prohibited drug
into the Philippine Islands, when the prohibited
drug is found under this person's control on a
2
vessel which has come direct from a foreign
country and is within the jurisdictional limits of
the Philippine Islands. In such case, a person is
guilty of illegal importation of the drug unless
contrary circumstances exist or the defense
proves otherwise. Applied to the facts herein, it
would be absurb to think that the accused was
merely carrying opium back and forth between
Saigon and Cebu for the mere pleasure of so
doing. It would likewise be impossible to
conceive that the accused needed so large an
amount of opium for his personal use. No better
explanation being possible, the logical
deduction is that the defendant intended this
opium to be brought into the Philippine Islands.
We accordingly find that there was illegal
importation of opium from a foreign country into
the Philippine Islands. To anticipate any
possible misunderstanding, let it be said that
these statements do not relate to foreign
vessels in transit, a situation not present.
The defendant and appellant, having been
proved guilty beyond a reasonable doubt as
charged and the sentence of the trial court
being within the limits provided by law, it results
that the judgment must be affirmed with the
costs of this instance against the appellant. So
ordered.
Arellano, C.J., Johnson, Carson, Araullo and
Street, JJ., concur.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. No. L-35131 November 29, 1972
THE WORLD HEALTH
ORGANIZATION and DR. LEONCE
VERSTUYFT, petitioners,
vs.
HON. BENJAMIN H. AQUINO, as
Presiding Judge of Branch VIII, Court of
First Instance of Rizal, MAJOR
WILFREDO CRUZ, MAJOR ANTONIO
G. RELLEVE, and CAPTAIN PEDRO S.
NAVARRO of the Constabulary Offshore
Action Center (COSAC), respondents.
Sycip, Salazar, Luna, Manalo and Feliciano
for petitioners.
Emilio L. Baldia for respondents.
TEEHANKEE, J.:p
An original action for certiorari and
prohibition to set aside respondent judge's
refusal to quash a search warrant issued by
him at the instance of respondents COSAC
(Constabulary Offshore Action Center)
officers for the search and seizure of the
personal effects of petitioner official of the
WHO (World Health Organization)
notwithstanding his being entitled to
diplomatic immunity, as duly recognized by
the executive branch of the Philippine
Government and to prohibit respondent judge
from further proceedings in the matter.
Upon filing of the petition, the Court issued
on June 6, 1972 a restraining order enjoining
respondents from executing the search
warrant in question.
Respondents COSAC officers filed their
answer joining issue against petitioners and
seeking to justify their act of applying for and
securing from respondent judge the warrant
for the search and seizure of ten crates
consigned to petitioner Verstuyft and stored at
the Eternit Corporation warehouse on the
ground that they "contain large quantities of
highly dutiable goods" beyond the official
needs of said petitioner "and the only lawful
way to reach these articles and effects for
purposes of taxation is through a search
warrant." 1
The Court thereafter called for the parties'
memoranda in lieu of oral argument, which
were filed on August 3, 1972 by respondents
and on August 21, 1972 by petitioners, and
the case was thereafter deemed submitted for
decision.
It is undisputed in the record that petitioner
Dr. Leonce Verstuyft, who was assigned on
December 6, 1971 by the WHO from his last
3
station in Taipei to the Regional Office in
Manila as Acting Assistant Director of Health
Services, is entitled to diplomatic immunity,
pursuant to the Host Agreement executed on
July 22, 1951 between the Philippine
Government and the World Health
Organization.
Such diplomatic immunity carries with it,
among other diplomatic privileges and
immunities, personal inviolability,
inviolability of the official's properties,
exemption from local jurisdiction, and
exemption from taxation and customs duties.
When petitioner Verstuyft's personal effects
contained in twelve (12) crates entered the
Philippines as unaccompanied baggage on
January 10, 1972, they were accordingly
allowed free entry from duties and taxes. The
crates were directly stored at the Eternit
Corporation's warehouse at Mandaluyong,
Rizal, "pending his relocation into permanent
quarters upon the offer of Mr. Berg, Vice
President of Eternit who was once a patient of
Dr. Verstuyft in the Congo." 2
Nevertheless, as above stated, respondent
judge issued on March 3, 1972 upon
application on the same date of respondents
COSAC officers search warrant No. 72-138
for alleged violation of Republic Act 4712
amending section 3601 of the Tariff and
Customs Code 3 directing the search and
seizure of the dutiable items in said crates.
Upon protest of March 6, 1972 of Dr.
Francisco Dy, WHO Regional Director for the
Western Pacific with station in Manila,
Secretary of Foreign Affairs Carlos P.
Romulo, personally wired on the same date
respondent Judge advising that "Dr. Verstuyft
is entitled to immunity from search in respect
of his personal baggage as accorded to
members of diplomatic missions" pursuant to
the Host Agreement and requesting
suspension of the search warrant order
"pending clarification of the matter from the
ASAC."
Respondent judge set the Foreign Secretary's
request for hearing and heard the same on
March 16, 1972, but notwithstanding the
official plea of diplomatic immunity
interposed by a duly authorized representative
of the Department of Foreign Affairs who
furnished the respondent judge with a list of
the articles brought in by petitioner Verstuyft,
respondent judge issued his order of the same
date maintaining the effectivity of the search
warrant issued by him, unless restrained by a
higher court. 4
Petitioner Verstuyft's special appearance on
March 24, 1972 for the limited purpose of
pleading his diplomatic immunity and motion
to quash search warrant of April 12, 1972
failed to move respondent judge.
At the hearing thereof held on May 8, 1972,
the Office of the Solicitor General appeared
and filed an extended comment stating the
official position of the executive branch of the
Philippine Government that petitioner
Verstuyft is entitled to diplomatic immunity,
he did not abuse his diplomatic
immunity, 5 and that court proceedings in the
receiving or host State are not the proper
remedy in the case of abuse of diplomatic
immunity. 6
The Solicitor General accordingly joined
petitioner Verstuyft's prayer for the quashal of
the search warrant. Respondent judge
nevertheless summarily denied quashal of the
search warrant per his order of May 9, 1972
"for the same reasons already stated in (his)
aforesaid order of March 16, 1972"
disregarding Foreign Secretary Romulo's plea
of diplomatic immunity on behalf of Dr.
Verstuyft.
Hence, the petition at bar. Petitioner Verstuyft
has in this Court been joined by the World
Health Organization (WHO) itself in full
assertion of petitioner Verstuyft's being
entitled "to all privileges and immunities,
exemptions and facilities accorded to
diplomatic envoys in accordance with
international law" under section 24 of the
Host Agreement.
The writs of certiorari and prohibition should
issue as prayed for.
1. The executive branch of the Philippine
Government has expressly recognized that
petitioner Verstuyft is entitled to diplomatic
immunity, pursuant to the provisions of the
Host Agreement. The Department of Foreign
Affairs formally advised respondent judge of
the Philippine Government's official position
that accordingly "Dr. Verstuyft cannot be the
subject of a Philippine court summons
4
without violating an obligation in
international law of the Philippine
Government" and asked for the quashal of the
search warrant, since his personal effects and
baggages after having been allowed free entry
from all customs duties and taxes, may not be
baselessly claimed to have been "unlawfully
imported" in violation of the tariff and
customs code as claimed by respondents
COSAC officers. The Solicitor-General, as
principal law officer of the
Government, 7 likewise expressly affirmed
said petitioner's right to diplomatic immunity
and asked for the quashal of the search
warrant.
It is a recognized principle of international
law and under our system of separation of
powers that diplomatic immunity is
essentially a political question and courts
should refuse to look beyond a determination
by the executive branch of the
government, 8 and where the plea of
diplomatic immunity is recognized and
affirmed by the executive branch of the
government as in the case at bar, it is then the
duty of the courts to accept the claim of
immunity upon appropriate suggestion by the
principal law officer of the government, the
Solicitor General in this case, or other officer
acting under his direction. 9 Hence, in
adherence to the settled principle that courts
may not so exercise their jurisdiction by
seizure and detention of property, as to
embarrass the executive arm of the
government in conducting foreign relations, it
is accepted doctrine that "in such cases the
judicial department of (this) government
follows the action of the political branch and
will not embarrass the latter by assuming an
antagonistic jurisdiction." 10
2. The unfortunate fact that respondent judge
chose to rely on the suspicion of respondents
COSAC officers "that the other remaining
crates unopened contain contraband
items" 11 rather than on the categorical
assurance of the Solicitor-General that
petitioner Verstuyft did not abuse his
diplomatic immunity, 12 which was based in
turn on the official positions taken by the
highest executive officials with competence
and authority to act on the matter, namely, the
Secretaries of Foreign Affairs and of Finance,
could not justify respondent judge's denial of
the quashal of the search warrant.
As already stated above, and brought to
respondent court's attention, 13 the Philippine
Government is bound by the procedure laid
down in Article VII of the Convention on the
Privileges and Immunities of the Specialized
Agencies of the United Nations 14 for
consultations between the Host State and the
United Nations agency concerned to
determine, in the first instance the fact of
occurrence of the abuse alleged, and if so, to
ensure that no repetition occurs and for other
recourses. This is a treaty commitment
voluntarily assumed by the Philippine
Government and as such, has the force and
effect of law.
Hence, even assuming arguendo as against
the categorical assurance of the executive
branch of government that respondent judge
had some ground to prefer respondents
COSAC officers' suspicion that there had
been an abuse of diplomatic immunity, the
continuation of the search warrant
proceedings before him was not the proper
remedy. He should, nevertheless, in deference
to the exclusive competence and jurisdiction
of the executive branch of government to act
on the matter, have acceded to the quashal of
the search warrant, and forwarded his findings
or grounds to believe that there had been such
abuse of diplomatic immunity to the
Department of Foreign Affairs for it to deal
with, in accordance with the aforementioned
Convention, if so warranted.
3. Finally, the Court has noted with concern
the apparent lack of coordination between the
various departments involved in the subject-
matter of the case at bar, which made it
possible for a small unit, the COSAC, to
which respondents officers belong, seemingly
to disregard and go against the authoritative
determination and pronouncements of both
the Secretaries of Foreign Affairs and of
Finance that petitioner Verstuyft is entitled to
diplomatic immunity, as confirmed by the
Solicitor-General as the principal law officer
of the Government. Such executive
determination properly implemented should
have normally constrained respondents
officers themselves to obtain the quashal of
the search warrant secured by them rather
than oppose such quashal up to this Court, to
the embarrassment of said department heads,
if not of the Philippine Government itself vis
a vis the petitioners. 15
5
The seriousness of the matter is underscored
when the provisions of Republic Act 75
enacted since October 21, 1946 to safeguard
the jurisdictional immunity of diplomatic
officials in the Philippines are taken into
account. Said Act declares as null and void
writs or processes sued out or prosecuted
whereby inter alia the person of an
ambassador or public minister is arrested or
imprisoned or his goods or chattels are seized
or attached and makes it a penal offense for
"every person by whom the same is obtained
or prosecuted, whether as party or as attorney,
and every officer concerned in executing it" to
obtain or enforce such writ or process. 16
The Court, therefore, holds that respondent
judge acted without jurisdiction and with
grave abuse of discretion in not ordering the
quashal of the search warrant issued by him in
disregard of the diplomatic immunity of
petitioner Verstuyft.
ACCORDINGLY, the writs of certiorari and
prohibition prayed for are hereby granted, and
the temporary restraining order heretofore
issued against execution or enforcement of the
questioned search warrant, which is hereby
declared null and void, is hereby made
permanent. The respondent court is hereby
commanded to desist from further
proceedings in the matter. No costs, none
having been prayed for.
The clerk of court is hereby directed to
furnish a copy of this decision to the Secretary
of Justice for such action as he may find
appropriate with regard to the matters
mentioned in paragraph 3 hereof. So ordered.
Concepcion, C.J., Makalintal, Zaldivar,
Fernando, Barredo, Makasiar, Antonio and
Esguerra, JJ., concur.
Castro, J., reserves his vote.
Republic of the Philippines
SUPREME COURT
Manila
 THIRD DIVISION
G.R. No. 121917 March 12, 1997
ROBIN CARIO PADILLA @
ROBINHOOD PADILLA, petitioner,
vs.
COURT OF APPEALS and PEOPLE of
the PHILIPPINES, respondents.
FRANCISCO, J.:
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
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.
6
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 ofreclusion 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 conviction14 the dispositive
portion of which reads:
WHEREFORE, the foregoing circumstances
considered, the appealed decision is hereby
AFFIRMED, and furthermore, the
P200,000.00 bailbond 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
Manukan sa Highway Restaurant in Sto.
Kristo, 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: "Ka bilis na,
mumuran pa naman pota makaaksidente ya."
(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).
7
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, 1193).
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 SP02 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 Iglesia ni Kristo
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 Abacan bridge, 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 Abacan bridge.
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
8
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, kinuha ang baril ko" (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 pietro berreta
pistol (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, 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
9
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 Abacan bridge 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
(balutvendor), 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 Abacan bridge
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.
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
10
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. 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
apparentto the policemen as they took a
casual glance at the Pajero and saw said rifle
lying horizontally near the driver's
seat. 52Thus 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
11
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. Rodialo
Gumtang, 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
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.
12
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. Rodialo Gumtang 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.
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
13
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. 75Circular 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 xxx
And 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
PNFEO5 28 November 1992
C E R T I FI CATI 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-RP131120
Revolver 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.
14
This certification is issued pursuant to
Subpoena from City of Angeles.
FOR THE CHIEF, FEO:
(Sgd.)
JOSE MARIO M. ESPINO
Sr. Inspector, PNP
Chief, Records Branch78
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
evidences 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 from reclusion
temporal maximum toreclusion
perpetua contrary to appellant's erroneous
averment. The severity of a penalty does
not ipso factomake 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
90
argumentative implication, 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 grievances on
the wisdom of the prescribed penalty should
not be addressed to us. Courts are not
concerned with the wisdom, efficacy or
15
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
of reclusion perpetua, 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 Resolution[2] dated March 5, 2004 denying
penalty is MODIFIED to "ten (10) years and
one (1) day, as minimum, to eighteen (18) petitioner's motion for reconsideration.
years, eight (8) months and one (1) day, as
maximum. Petitioner, along with two other
women, namely, Anita Busog de Valencia y
SO ORDERED.
Rivera and Jacqueline Capitle, was charged
Narvasa, C.J., Davide, Jr., Melo and before the Regional Trial Court (RTC)
Panganiban, JJ., concur. ofCaloocan City, Branch 131, with the crime
of Qualified Theft, allegedly committed as
follows:
Republic of the Philippines
Supreme Court That on or about and
Manila sometime in the month of July
1997, in Kalookan City, Metro
THIRD DIVISION Manila, and within the
jurisdiction of this Honorable
Court, the above-named
GEMMA T. JACINTO, G.R. No. 162540
accused, conspiring together
Petitioner,
and mutually helping one
Present: another, being then all
employees of MEGA FOAM
YNARES-SANTIAGO, INTERNATIONAL INC.,
J., herein represented by JOSEPH
- versus - Chairperson, DYHENGCO Y CO, and as
CHICO-NAZARIO, such had free access inside the
VELASCO, JR., aforesaid establishment, with
NACHURA, and grave abuse of trust and
PERALTA, JJ. confidence reposed upon them
with intent to gain and without
PEOPLE OF Promulgated: the knowledge and consent of
THE PHILIPPINES, the owner thereof, did then and
Respondent. there willfully, unlawfully and
feloniously take, steal and
July 13, 2009 deposited in their own account,
x---------------------------------------------------------------- Banco De Oro Check No.
-------------------------x 0132649 dated July 14, 1997 in
the sum of P10,000.00,
representing payment made by
customer Baby Aquino to the
D E C I S I O N Mega Foam Int'l. Inc. to the
damage and prejudice of the
latter in the aforesaid stated
amount of P10,000.00.
PERALTA, J.:
CONTRARY TO LAW.
[3]
Before us is a petition for review
on certiorari filed by petitioner Gemma T.
Jacinto seeking the reversal of the
[1]
Decision of the Court of Appeals (CA) in The prosecution's evidence, which both the
CA-G.R. CR No. 23761 dated December 16, RTC and the CA found to be more credible,
2003, affirming petitioner's conviction of the reveals the events that transpired to be as
crime of Qualified Theft, and its follows.

16

In the month of June 1997, Isabelita Aquino
Milabo, also known as Baby Aquino, handed
petitioner Banco De Oro (BDO) Check
Number 0132649 postdated July 14, 1997 in
the amount of P10,000.00. The check was
payment for Baby Aquino's purchases from
Mega Foam Int'l., Inc., and petitioner was
then the collector of Mega Foam. Somehow,
the check was deposited in the Land Bank
account of Generoso Capitle, the husband of
Jacqueline Capitle; the latter is the sister of
petitioner and the former pricing,
merchandising and inventory clerk of Mega
Foam.
Meanwhile, Rowena Ricablanca, another
employee of Mega Foam, received a phone
call sometime in the middle of July from one
of their customers, Jennifer Sanalila. The
customer wanted to know if she could issue
checks payable to the account of Mega Foam,
instead of issuing the checks payable
to CASH. Said customer had apparently been
instructed by Jacqueline Capitle to make
check payments to Mega Foam payable
to CASH. Around that time, Ricablanca also
received a phone call from an employee of
Land Bank, Valenzuela Branch, who was
looking for Generoso Capitle. The reason for
the call was to inform Capitle that the subject
BDO check deposited in his account had been
dishonored.
Ricablanca then phoned accused Anita
Valencia, a former employee/collector of
Mega Foam, asking the latter to inform
Jacqueline Capitle about the phone call from
Land Bank regarding the bounced
check. Ricablanca explained that she had to
call and relay the message through Valencia,
because the Capitles did not have a phone; but
they could be reached through Valencia, a
neighbor and former co-employee of
Jacqueline Capitle at Mega Foam.
17
Valencia then told Ricablanca that the check
came from Baby Aquino, and instructed
Ricablanca to ask Baby Aquino to replace the
check with cash. Valencia also told
Ricablanca of a plan to take the cash and
divide it equally into four: for herself,
Ricablanca, petitioner Jacinto and Jacqueline
Capitle. Ricablanca, upon the advise of Mega
Foam's accountant, reported the matter to the
owner of Mega Foam, Joseph Dyhengco.
Thereafter, Joseph Dyhengco talked to Baby
Aquino and was able to confirm that the latter
indeed handed petitioner a BDO check
for P10,000.00 sometime in June 1997 as
payment for her purchases from Mega Foam.
[4]
Baby Aquino further testified that,
sometime in July 1997, petitioner also called
her on the phone to tell her that the BDO
check bounced.[5] Verification from company
records showed that petitioner never remitted
the subject check to Mega Foam. However,
Baby Aquino said that she had already paid
Mega Foam P10,000.00 cash in August 1997
as replacement for the dishonored check.[6]
Generoso Capitle, presented as a hostile
witness, admitted depositing the subject BDO
check in his bank account, but explained that
the check came into his possession when
some unknown woman arrived at his house
around the first week of July 1997 to have the
check rediscounted. He parted with his cash in
exchange for the check without even
bothering to inquire into the identity of the
woman or her address. When he was informed
by the bank that the check bounced, he merely
disregarded it as he didnt know where to find
the woman who rediscounted the check.
Meanwhile, Dyhengco filed a Complaint with
the National Bureau of Investigation (NBI)
and worked out an entrapment operation with
its agents. Ten pieces of P1,000.00 bills
provided by Dyhengco were marked and
dusted with fluorescent powder by the
NBI. Thereafter, the bills were given to
Ricablanca, who was tasked to pretend that
she was going along with Valencia's plan.
On August 15, 2007, Ricablanca and
petitioner met at the latter's house. Petitioner,
who was then holding the bounced BDO
check, handed over said check to
Ricablanca. They originally intended to
proceed to Baby Aquino's place to have the
check replaced with cash, but the plan did not
push through. However, they agreed to meet
again on August 21, 2007.
On the agreed date, Ricablanca again went to
petitioners house, where she met petitioner
and Jacqueline Capitle. Petitioner, her
husband, and Ricablanca went to the house of
Anita Valencia; Jacqueline Capitle decided
not to go with the group because she decided
to go shopping. It was only petitioner, her
husband, Ricablanca and Valencia who then
boarded petitioner's jeep and went on to Baby
Aquino's factory. Only Ricablanca alighted
from the jeep and entered the premises of
Baby Aquino, pretending that she was getting
cash from Baby Aquino. However, the cash
she actually brought out from the premises
was the P10,000.00 marked money previously
given to her by Dyhengco. Ricablanca divided
the money and upon returning to the jeep,
gave P5,000.00 each to Valencia and
petitioner. Thereafter, petitioner
and Valencia were arrested by NBI agents,
who had been watching the whole time.
Petitioner and Valencia were brought to the
NBI office where the Forensic Chemist found
fluorescent powder on the palmar and dorsal
aspects of both of their hands. This showed
that petitioner and Valencia handled the
marked money. The NBI filed a criminal case
for qualified theft against the two and one
Jane Doe who was later identified as
Jacqueline Capitle, the wife of Generoso
Capitle.
18
The defense, on the other hand, denied having
taken the subject check and presented the
following scenario.
Petitioner admitted that she was a collector
for Mega Foam until she resigned on June 30,
1997, but claimed that she had stopped
collecting payments from Baby Aquino for
quite some time before her resignation from
the company. She further testified that, on the
day of the arrest, Ricablanca came to her
mothers house, where she was staying at that
time, and asked that she accompany her
(Ricablanca) to Baby Aquino's house. Since
petitioner was going for a pre-natal check-up
at the Chinese General Hospital, Ricablanca
decided to hitch a ride with the former and her
husband in their jeep going to Baby Aquino's
place in Caloocan City. She allegedly had no
idea why Ricablanca asked them to wait in
their jeep, which they parked outside the
house of Baby Aquino, and was very
surprised when Ricablanca placed the money
on her lap and the NBI agents arrested them.
Anita Valencia also admitted that she was the
cashier of Mega Foam until she resigned
on June 30, 1997. It was never part of her job
to collect payments from
customers.According to her, on the morning
of August 21, 1997, Ricablanca called her up
on the phone, asking if she (Valencia) could
accompany her (Ricablanca) to the house of
Baby Aquino. Valencia claims that she agreed
to do so, despite her admission during cross-
examination that she did not know where
Baby Aquino resided, as she had never been
to said house. They then met at the house of
petitioner's mother, rode the jeep of petitioner
and her husband, and proceeded to Baby
Aquino's place. When they arrived at said
place, Ricablanca alighted, but requested
them to wait for her in the jeep. After ten
minutes, Ricablanca came out and, to her
surprise, Ricablanca gave her money and so
she even asked, What is this? Then, the NBI
agents arrested them.
The trial of the three accused went its usual
course and, on October 4, 1999, the RTC
rendered its Decision, the dispositive portion
of which reads:
SO ORDERED.
A Partial Motion for Reconsideration
of the foregoing CA Decision was filed only
for petitioner Gemma Tubale Jacinto, but the
same was denied per Resolution datedMarch
5, 2004.

WHEREFORE, in view of the Hence, the present Petition for Review

foregoing, the Court finds
accused Gemma Tubale De on Certiorari filed by petitioner alone,
Jacinto y Latosa, Anita Busog assailing the Decision and Resolution of the
De Valencia y Rivera and CA. The issues raised in the petition are as
Jacqueline
Capitle GUILTY beyond follows:
reasonable doubt of the crime
of QUALIFIED THEFT and 1. Whether or not
each of them is hereby petitioner can be
sentenced to suffer convicted of a crime
imprisonment of FIVE (5) not charged in the
YEARS, FIVE (5) MONTHS information;
AND ELEVEN (11)
DAYS,as minimum, to SIX 2. Whether or not a
(6) YEARS, EIGHT (8) worthless check can be
MONTHS AND TWENTY the object of theft; and
(20) DAYS, as maximum.
3. Whether or not the
SO ORDERED. [7]
prosecution has proved
petitioner's guilt beyond
reasonable doubt.[8]
The three appealed to the CA and,
The petition deserves considerable thought.
on December 16, 2003, a Decision was
promulgated, the dispositive portion of which The prosecution tried to establish the
reads, thus: following pieces of evidence to constitute the
IN VIEW OF THE elements of the crime of qualified theft
FOREGOING, the decision of defined under Article 308, in relation to
the trial court is MODIFIED, Article 310, both of the Revised Penal Code:
in that:
(1) the taking of personal property - as shown
(a) the sentence against by the fact that petitioner, as collector for
accused Gemma Mega Foam, did not remit the customer's
Jacinto stands;
check payment to her employer and, instead,
(b) the sentence
against accused appropriated it for herself; (2) said property
Anita Valencia belonged to another the check belonged to
is reduced to 4 Baby Aquino, as it was her payment for
months arresto
mayor medium. purchases she made; (3) the taking was done
(c) The accused with intent to gain this is presumed from the
Jacqueline Capitle is act of unlawful taking and further shown by
acquitted.
the fact that the check was deposited to the
bank account of petitioner's brother-in-law;

19
(4) it was done without the owners consent 59, both of the Revised Penal Code, because
petitioner hid the fact that she had received of the factual impossibility of producing the
the check payment from her employer's crime. Pertinent portions of said provisions
customer by not remitting the check to the read as follows:
company; (5) it was accomplished without the Article 4(2). Criminal
Responsibility. - Criminal
use of violence or intimidation against responsibility shall be incurred:
persons, nor of force upon things the check
was voluntarily handed to petitioner by the xxxx
customer, as she was known to be a collector
2. By any person performing
for the company; and (6) it was done with an act which would be an
grave abuse of confidence petitioner is offense against persons or
property, were it not for
admittedly entrusted with the collection of
the inherent impossibility of
payments from customers. its accomplishment or on
However, as may be gleaned from the account of the employment of
aforementioned Articles of the Revised Penal inadequate to ineffectual
means. (emphasis supplied)
Code, the personal property subject of the
theft must have some value, as the intention Article 59. Penalty to be
of the accused is to gain from the thing imposed in case of failure to
commit the crime because the
stolen. This is further bolstered by Article means employed or the aims
309, where the law provides that the penalty sought are impossible. - When
to be imposed on the accused is dependent on the person intending to commit
an offense has already
the value of the thing stolen.
performed the acts for the
In this case, petitioner unlawfully took the execution of the same but
postdated check belonging to Mega Foam, but nevertheless the crime was not
the same was apparently without value, as it produced by reason of the fact
that the act intended was by its
was subsequently dishonored. Thus, the nature one of impossible
question arises on whether the crime of accomplishment or because the
qualified theft was actually produced. means employed by such
person are essentially
inadequate to produce the
The Court must resolve the issue in the result desired by him, the court,
having in mind the social
negative. danger and the degree of
criminality shown by the
Intod v. Court of Appeals[9] is highly offender, shall impose upon
him the penalty of arresto
instructive and applicable to the present mayor or a fine ranging from
case. In Intod, the accused, intending to kill a 200 to 500 pesos.
person, peppered the latters bedroom with Thus, the requisites of an impossible crime
bullets, but since the intended victim was not are: (1) that the act performed would be an
home at the time, no harm came to him. The offense against persons or property; (2) that
trial court and the CA held Intod guilty of the act was done with evil intent; and (3) that
attempted murder. But upon review by this its accomplishment was inherently
Court, he was adjudged guilty only of impossible, or the means employed was either
an impossible crime as defined and penalized inadequate or ineffectual. The aspect of the
in paragraph 2, Article 4, in relation to Article inherent impossibility of accomplishing the

20
intended crime under Article 4(2) of the
Revised Penal Code was further explained by
the Court in Intod[10] in this wise:
Under this article, the act
performed by the offender
cannot produce an offense
against persons or property
because: (1) the commission
of the offense is inherently
impossible of accomplishment;
or (2) the means employed is
either (a) inadequate or (b)
ineffectual.
That the offense cannot be
produced because the
commission of the offense is
inherently impossible of
accomplishment is the focus of
this petition. To be impossible
under this clause, the act
intended by the offender must
be by its nature one impossible
of accomplishment. There
must be either (1) legal
impossibility, or (2) physical
impossibility of accomplishing
the intended act in order to
qualify the act as an impossible
crime.
Legal impossibility occurs
where the intended acts, even
if completed, would not
amount to a crime.
xxxx
The impossibility of killing a
person already dead falls in
this category.
On the other hand, factual
impossibility occurs when
extraneous circumstances
unknown to the actor or
beyond his control prevent the
consummation of the intended
crime. x x x [11]
In Intod, the Court went on to give an
example of an offense that involved factual
impossibility, i.e., a man puts his hand in the
coat pocket of another with the intention to
21
steal the latter's wallet, but gets nothing since
the pocket is empty.
Herein petitioner's case is closely akin to the
above example of factual impossibility given
in Intod. In this case, petitioner performed all
the acts to consummate the crime ofqualified
theft, which is a crime against
property. Petitioner's evil intent cannot be
denied, as the mere act of unlawfully taking
the check meant for Mega Foam showed her
intent to gain or be unjustly enriched. Were it
not for the fact that the check bounced, she
would have received the face value thereof,
which was not rightfully hers. Therefore, it
was only due to the extraneous circumstance
of the check being unfunded, a fact unknown
to petitioner at the time, that prevented the
crime from being produced. The thing
unlawfully taken by petitioner turned out to be
absolutely worthless, because the check was
eventually dishonored, and Mega Foam had
received the cash to replace the value of said
dishonored check.
The fact that petitioner was later entrapped
receiving the P5,000.00 marked money, which
she thought was the cash replacement for the
dishonored check, is of no moment. The
Court held in Valenzuela v. People[12] that
under the definition of theft in Article 308 of
the Revised Penal Code, there is only one
operative act of execution by the actor
involved in theft the taking of personal
property of another. Elucidating further, the
Court held, thus:
x x x Parsing through the
statutory definition of theft
under Article 308, there is one
apparent answer provided in
the language of the law that
theft is already produced upon
the tak[ing of] personal
property of another without the
latters consent.
 xxxx
x x x when is the crime of theft
produced? There would be all
but certain unanimity in the
position that theft is produced
when there is deprivation of
personal property due to its
taking by one with intent to
gain. Viewed from that
perspective, it is immaterial to
the product of the felony that
the offender, once having
committed all the acts of
execution for theft, is able or
unable to freely dispose of the
property stolen since the
deprivation from the owner
alone has already ensued from
such acts of execution. x x x
xxxx
x x x we have, after all, held
that unlawful taking,
or apoderamiento, is deemed
complete from the moment the
offender gains possession of
the thing, even if he has no
opportunity to dispose of the
same. x x x
x x x Unlawful taking, which is
the deprivation of ones
personal property, is the
element which produces the
felony in its consummated
stage. x x x [13]
From the above discussion, there can be no
question that as of the time that petitioner
took possession of the check meant for
Mega Foam, she had performed all the acts
to consummate the crime of theft, had it
not been impossible of accomplishment in
this case. The circumstance of petitioner
receiving the P5,000.00 cash as supposed
replacement for the dishonored check was no
longer necessary for the consummation of the
crime of qualified theft. Obviously, the plan to
convince Baby Aquino to give cash as
replacement for the check was hatched only
22
after the check had been dishonored by the
drawee bank. Since the crime of theft is not a
continuing offense, petitioner's act of
receiving the cash replacement should not be
considered as a continuation of the theft. At
most, the fact that petitioner was caught
receiving the marked money was merely
corroborating evidence to strengthen proof of
her intent to gain.
Moreover, the fact that petitioner further
planned to have the dishonored check
replaced with cash by its issuer is a different
and separate fraudulent
scheme. Unfortunately, since said scheme was
not included or covered by the allegations in
the Information, the Court cannot pronounce
judgment on the accused; otherwise, it would
violate the due process clause of the
Constitution. If at all, that fraudulent scheme
could have been another possible source of
criminal liability.
IN VIEW OF THE FOREGOING, the
petition is GRANTED. The Decision of the
Court of Appeals, dated December 16, 2003,
and its Resolution dated March 5, 2004,
areMODIFIED. Petitioner Gemma T. Jacinto
is found GUILTY of an IMPOSSIBLE
CRIME as defined and penalized in Articles
4, paragraph 2, and 59 of the Revised Penal
Code, respectively. Petitioner is sentenced to
suffer the penalty of six (6) months
of arrresto mayor, and to pay the costs.
SO ORDERED.
Republic of the Philippines
SUPREME COURT
Manila
EN BANC
G.R. Nos. 119987-88 October 12, 1995
THE PEOPLE OF THE
PHILIPPINES, petitioner,
vs.
HON. LORENZO B. VENERACION,
Presiding Judge of the Regional Trial
Court, National Capital Judicial Region,
Branch 47, Manila, HENRY LAGARTO y
PETILLA and ERNESTO
CORDERO, respondents.
KAPUNAN, J.:
The sole issue in the case at bench involves a
question of law. After finding that an accused
individual in a criminal case has, on the
occasion of Rape, committed Homicide, is the
judge allowed any discretion in
imposingeither the penalty of Reclusion
Perpetua or Death?
The facts antecedent to the case before this
Court, as narrated by petitioner, 1 involve the
perpetration of acts so bizarre and devoid of
humanity as to horrify and numb the senses of
all civilized men:
On August 2, 1994, the cadaver of a young
girl, later identified as Angel Alquiza wrapped
in a sack and yellow table cloth tied with a
nylon cord with both feet and left hand
protruding from it was seen floating along Del
Pan St. near the corner of Lavesares St.,
Binondo, Manila.
When untied and removed from its cover, the
lifeless body of the victim was seen clad only
in a light colored duster without her panties,
with gaping wounds on the left side of the
face, the left chin, left ear, lacerations on her
genitalia, and with her head bashed in.
On the basis of sworn statements of witnesses,
booking sheets, arrest reports and the
necropsy report of the victim, Abundio
Lagunday, a.k.a. Jr. Jeofrey of no fixed
address, and Henry Lagarto y Petilla, of 288
Area H. Parola Compound, Tondo, Manila
were later charged with the crime of Rape
with Homicide in an Information dated
August 8, 1994 filed with the Regional Trial
Court of Manila, National Capital Judicial
Region. Said Information, docketed as
Criminal Case No. 94-138071, reads:
23
That on or about August 2, 1994, in the City
of Manila, Philippines, the said accused,
conspiring and confederating together with
one alias "LANDO" and other persons whose
true names, identifies and present
whereabouts are still unknown and helping
one another, with treachery, taking advantage
of their superior strength and nocturnity, and
ignominy, and with the use of force and
violence, that is, by taking ANGEL
ALQUIZA y LAGMAN into a warehouse,
covering her mouth, slashing her vagina,
hitting her head with a thick piece of wood
and stabbing her neck did then and there
wilfully, unlawfully and feloniously have
carnal knowledge of the person of said
ANGEL ALQUIZA y LAGMAN, a minor,
seven (7) years of age, against the latter's will
and consent and on said occasion the said
ABUNDIO LAGUNDAY, a.k.a. "LANDO"
and others, caused her fatal injuries which
were the direct cause of her death
immediately thereafter.
CONTRARY TO LAW.
Subsequently thereafter, Ernesto Cordero y
Maristela, a.k.a. "Booster," of 1198 Sunflower
St., Tondo, Manila, Rolando Manlangit y
Mamerta, a.k.a. "Lando," of 1274 Kagitingan
St., Tondo, Manila, Richard Baltazar y Alino,
a.k.a. "Curimao," also of 1274 Kagitingan St.,
Tondo, Manila, and Catalino Yaon y Aberin,
a.k.a. "Joel," of 1282 Lualhati St., Tondo,
Manila were accused of the same crime of
Rape with Homicide in an Information dated
August 11, 1994, docketed as Criminal Case
No. 94-138138, allegedly committed as
follows:
That on or about the 2nd day of August, 1994,
in the City of Manila, Philippines, the said
accused conspiring and confederating with
ABUNDIO LAGUNDAY Alias "JR,"
JEOFREY and HENRY LAGARTO y
PETILLA who have already been charged in
the Regional Trial Court of Manila of the
same offense under Criminal Case No. 94-
138071, and helping one another, with
treachery, taking advantage of their superior
strength and nocturnity and ignominy, and
with the use of force and violence, that is, by
taking ANGEL ALQUIZA y LAGMAN into a
pedicab, and once helpless, forcibly bringing
her to a nearby warehouse, covering her
mouth, slashing her vagina, hitting her head
with a thick piece of wood and stabbing her
neck, did then and there wilfully, unlawfully
and feloniously have carnal knowledge of the
person of said ANGEL ALQUIZA y
LAGMAN, a minor, seven (7) years of age,
against the latter's will and consent and on
said occasion the said accused together with
their confederates ABUNDIO LAGARTO y
PETILLA caused her fatal injuries which
were the direct cause of her death
immediately thereafter.
CONTRARY TO LAW.
The two criminal cases were consolidated to
Branch 47 of the Regional Trial Court of
Manila, presided over by respondent Judge.
Duly arraigned, all the accused, except
Abundio Lagunday who was already dead,
(allegedly shot by police escorts after
attempting to fire a gun he was able to grab
from SPO1 D. Vidad on August 12, 1994),
pleaded "Not Guilty." Abundio Lagunday was
dropped from the Information.
After trial and presentation of the evidence of
the prosecution and the defense, the trial court
rendered a decision2 on January 31, 1995
finding the defendants Henry Lagarto y Petilla
and Ernesto Cordero y Maristela guilty
beyond reasonable doubt of the crime of Rape
with Homicide and sentenced both accused
with the "penalty of reclusion perpetuawith
all the accessories provided for by
law." 3 Disagreeing with the sentence
imposed, the City Prosecutor of Manila on
February 8, 1995, filed a Motion for
Reconsideration, praying that the Decision be
"modified in that the penalty of death be
imposed" against respondents Lagarto and
Cordero, in place of the original penalty
(reclusion perpetua). Refusing to act on the
merits of the said Motion for Reconsideration,
respondent Judge, on February 10, 1995,
issued an Order denying the same for lack of
jurisdiction. The pertinent portion reads:
The Court believes that in the above-entitled
cases, the accused Lagarto and Cordero have
complied with the legal requirements for the
perfection of an appeal. Consequently, for
lack of jurisdiction, this Court cannot take
cognizance of the Motion for Reconsideration
of the Public Prosecutor of Manila.
WHEREFORE, the order earlier issued by
this Court regarding the Notices of Appeal
24
filed by both herein accused is hereby
reiterated.
The Clerk of this Court is hereby directed to
transmit the complete records of these cases,
together with the notices of appeal, to the
Honorable Supreme Court, in accordance with
Sec. 8, Rule 122 of the Revised Rules of
Criminal Procedure.
SO ORDERED.
Hence, the instant petition.
The trial court's finding of guilt is not at issue
in the case at bench. The basis of the trial
court's determination of guilt and its
conclusions will only be subject to our
scrutiny at an appropriate time on appeal. We
have thus clinically limited our narration of
events to those cold facts antecedent to the
instant case relevant to the determination of
the legal question at hand, i.e., whether or not
the respondent judge acted with grave abuse
of discretion and in excess of jurisdiction
when he failed and/or refused to impose the
mandatory penalty of death under Republic
Act No. 7659, after finding the accused guilty
of the crime of Rape with Homicide.
We find for petitioner.
Obedience to the rule of law forms the
bedrock of our system of justice. If judges,
under the guise of religious or political beliefs
were allowed to roam unrestricted beyond
boundaries within which they are required by
law to exercise the duties of their office, then
law becomes meaningless. A government of
laws, not of men excludes the exercise of
broad discretionary powers by those acting
under its authority. Under this system, judges
are guided by the Rule of Law, and ought "to
protect and enforce it without fear or
favor," 4 resist encroachments by
5
governments, political parties, or even the
interference of their own personal beliefs.
In the case at bench, respondent judge, after
weighing the evidence of the prosecution and
the defendant at trial found the accused guilty
beyond reasonable doubt of the crime of Rape
with Homicide. Since the law in force at the
time of the commission of the crime for which
respondent judge found the accused guilty
was Republic Act No. 7659, he was bound by
its provisions.
Section 11 of R.A. No. 7659 provides:
Sec. 11. Article 335 of the same Code is
hereby amended to read as follows:
Art. 335. When and how rape is committed.
Rape is committed by having carnal
knowledge of a woman under any of the
following circumstances:
1. By using force or intimidation.
2. When the woman is deprived of reason or
otherwise unconscious; and
3. When the woman is under twelve years of
age or is demented.
The crime of rape shall be punished
by reclusion perpetua.
Whenever the crime of rape is committed
with the use of a deadly weapon or by two or
more persons, the penalty shall be reclusion
perpetua to death.
When by reason or on the occasion of the
rape, the victim has become insane, the
penalty shall be death.
When the rape is attempted or frustrated and a
homicide is committed by reason or on the
occasion thereof, the penalty shall
be reclusion perpetua to death.
When by reason or on the occasion of the
rape, a homicide is committed, the penalty
shall be death. . . . 6
Clearly, under the law, the penalty imposable
for the crime of Rape with Homicide is
not Reclusion Perpetua but Death. While
Republic Act 7659 punishes cases of ordinary
rape with the penalty of Reclusion Perpetua,
it allows judges the discretion depending
on the existence of circumstances modifying
the offense committed to impose the
penalty of either Reclusion Perpetua only in
the three instances mentioned therein. Rape
with homicide is not one of these three
instances. The law plainly and unequivocably
provides that "[w]hen by reason or on the
occasion of rape, a homicide is committed,
the penalty shall be death." The provision
leaves no room for the exercise of discretion
on the part of the trial judge to impose a
25
penalty under the circumstances described,
other than a sentence of death.
We are aware of the trial judge's misgivings in
imposing the death sentence because of his
religious convictions. While this Court
sympathizes with his predicament, it is its
bounden duty to emphasize that a court of law
is no place for a protracted debate on the
morality or propriety of the sentence, where
the law itself provides for the sentence of
death as a penalty in specific and well-defined
instances. The discomfort faced by those
forced by law to impose the death penalty is
an ancient one, but it is a matter upon which
judges have no choice. Courts are not
concerned with the wisdom, efficacy or
morality of laws. In People vs. Limaco 7 we
held that:
[W]hen . . . private opinions not only form
part of their decision but constitute a decisive
factor in arriving at a conclusion and
determination of a case or the penalty
imposed, resulting in an illegality and
reversible error, then we are constrained to
state our opinion, not only to correct the error
but for the guidance of the courts. We have no
quarrel with the trial judge or with anyone
else, layman or jurist as to the wisdom or folly
of the death penalty. Today there are quite a
number of people who honestly believe that
the supreme penalty is either morally wrong
or unwise or ineffective. However,as long as
that penalty remains in the statute books, and
as long as our criminal law provides for its
imposition in certain cases, it is the duty of
judicial officers to respect and apply the law
regardless of their private opinions. It is a
well settled rule that the courts are not
concerned with the wisdom, efficacy or
morality of laws. That question falls
exclusively within the province of the
Legislature which enacts them and the Chief
Executive who approves or vetoes them. The
only function of the judiciary is to interpret
the laws and, if not in disharmony with the
Constitution, to apply them. And for the
guidance of the members of the judiciary we
feel it incumbent upon us to state that while
they as citizens or as judges may regard a
certain law as harsh, unwise or morally
wrong, and may recommend to the authority
or department concerned, its amendment,
modification, or repeal, still, as long as said
law is in force, they must apply it and give it
effect as decreed by the law-making body. 8
Finally, the Rules of Court mandates that after
an adjudication of guilt, the judge should
impose "the proper penalty and civil liability
provided for by the law on the
accused." 9 This is not a case of a magistrate
ignorant of the law. This is a case in which a
judge, fully aware of the appropriate
provisions of the law, refuses to impose a
penalty to which he disagrees. In so doing,
respondent judge acted without or in excess of
his jurisdiction or with grave abuse of
discretion amounting to a lack of jurisdiction
in imposing the penalty of Reclusion
Perpetua where the law clearly imposes the
penalty of Death.
WHEREFORE, PREMISES CONSIDERED,
the instant petition is GRANTED. The case is
hereby REMANDED to the Regional Trial
Court for the imposition of the penalty of
death upon private respondents in consonance
with respondent judge's finding that the
private respondents in the instant case had
committed the crime of Rape with Homicide
under Article 335 of the Revised Penal Code,
as amended by Section 11 of Republic Act
No. 7659, subject to automatic review by this
Court of the decision imposing the death
penalty.
SO ORDERED.
Feliciano, Padilla, Romero, Bellosillo, Melo,
Puno, Mendoza, Francisco and Hermosisima,
Jr., JJ., concur.
Separate Opinions
NARVASA, C.J., concurring:
I concur with the conclusions and dispositions
set forth in the opinion of Mr. Justice
Kapunan. I draw up this separate opinion
merely to address a question which may be
raised in relation to the appeal taken by the
accused from the judgment of conviction
rendered by respondent Judge. It will be
recalled that respondent Judge declined to act
on the merits of motion for reconsideration
filed by the prosecution praying that his
decision sentencing both accused to
suffer reclusion perpetua be "modified in that
the penalty of death be imposed" for the
26
reason that since the accused had already
"complied with the legal requirements for the
perfection of an appeal," the Trial Court had
lost jurisdiction over the cases. It was
precisely that refusal that prompted the
institution in this Court of the special civil
action of certiorari at bar.
It is indeed axiomatic that once an appeal is
perfected from a judgment, jurisdiction is lost
by the court rendering the judgment; and
jurisdiction over the case passes to the
appellate tribunal. This proposition
considered, and following respondent Judge's
reasoning, this Court's directive for the
remand of the case "to the Regional Trial
Court for the imposition of the penalty of
death upon private respondents," might
appear to be open to question, since it would
require the Trial Court to act in cases over
which it had lost jurisdiction. Such a
conclusion is not warranted.
The judgment in question is void, and has
been annulled and set aside by this Court,
because rendered "without or in excess of . . .
jurisdiction or with grave abuse of discretion
amounting to lack of jurisdiction," in so far as
it imposes, in light of the facts found to have
been proven beyond reasonable doubt, a
penalty other than that peremptorily
prescribed by law. The judgment being void,
the appeal attempted to be taken therefrom is
inefficacious. The Trial Court may not be
deemed to have thereby lost jurisdiction of the
cases. It cannot thus be said that it is being
required by this Court to act in cases over
which it has already lost jurisdiction. There
exists no legal obstacle to the remand of the
cases to it and its modification of the
judgment so that it may comply with the
mandatory prescription of the law.
REGALADO, J., concurring:
I concur without reservation in
the ponencia in this case and its directive that
the court a quo impose the correct penalty of
death as provided by law and consequent to
its findings of guilt on the part of private
respondents. Indeed, this separate opinion
which explicates my conformity with the
procedure adopted and the mandate thereof
would not have been necessary were it not for
the contrary observations that the petition
herein should either have been dismissed or
consolidated with the criminal case elevated
on appeal by private respondents.
Such digression from the judgment
unconditionally accepted by the other
members of the Court does not impress me as
being concordant with the Rules of Court and
decisional law. What is before us in the case
at bar is an original civil action invoking the
extraordinary writ of certiorari for the
imposition of the correct penalty specified by
law, which legal duty respondent judge
refused to comply with in grave abuse of his
judicial discretion. 1 On the other hand, the
criminal case with which it is sought to be
consolidated is an appellate recourse wherein
the relief sought is primarily the reversal of
the finding of guilt and the absolution of
private respondents.
Evidently, the determinative issues involved
and the limited relief sought in the present
special civil action are entirely different from
the issues for resolution and the modificatory
judgment desired in the appealed criminal
case. The basic rule in consolidation of cases
in civil procedure 2 requires, among others, the
same subject matter and the existence of a
common question of law or fact. This is
essentially the same as the rule on
consolidation in criminal procedure 3 which
contemplates charges for offenses founded on
the same facts, or forming part of a series of
offenses of similar character.
Also, these reglementary requisites for
consolidation require two or
more ordinary civil or criminal actions, and
not a special civil action in combination with
the former. The impropriety of the latter
situation is specially underscored where the
resolution of the controversy in the special
civil action is a pre-judicial matter in the
appealed criminal case. These considerations
apply to both the trial courts in the exercise of
original jurisdiction and to the appellate
courts in the implementation of revisory
power.
The purpose of the present original action
for certiorari is to have the erroneous
judgment of respondent judge erroneous
because he imposed the wrong penalty
corrected on that score in the first instance.
After such correction shall have been effected,
then the appeal from his judgment shall
proceed for the desired review by this Court
27
to determine the guilt or innocence of
appellants. The corrective action must
proceed first and the resultant amended
judgment containing the proper penalty shall
be the basis for the review as to whether
appellants are truly guilty and have to be
meted that ultimate penalty. To have
the certiorari action proceed simultaneously
and in unification with the appellate
proceeding strikes me as an aberrant
procedure. While it does not exactly square
with the figurative posture of putting the cart
before the horse, it does result in the same
absurdity of both the horse and the cart
moving abreast at the same time along the
same judicial path.
It would even be worse if, as suggested,
this certiorari action should be dismissed and
the appellate review be conducted with the
judgment containing an unauthorized penalty
as the basis therefor, with this Court closing
its eyes to such a flagrant mistake. This time
the cart precedes the horse. True, an appeal
throws the judgment a quo open for review
and the Court may raise the penalty to the
appropriate punitive level. But, as the People
pertinently observes, what is there to prevent
appellants from withdrawing their appeal
upon sensing from the arguments that, instead
of the acquittal or reduced penalty aspired for,
the ultimate denouement would be the death
sentence?
Jurisprudence tells us that before the case is
submitted for decision, an appellant may
withdraw his appeal in the appellate
court. 4 Generally, the withdrawal of an appeal
before the filing of the appellee's brief in this
Court is permitted. 5Assuming that the Court
denies the withdrawal of the appeal in order
that the mistake in the penalty imposed may
be corrected in the judgment of the case on
the merits, 6 why should the appellate course
of the proceedings still have to be subject to
such contingencies with the inevitable
waste of time and effort in the formulation of
alternative theories in two sets of pleadings by
both parties when with the decisive sweep
of the adjudgment here the doubts are
dissipated and the real areas of contention are
laid bare?
Nor is that all. Appellants have come to this
Court through the medium of an appeal by
writ of error from a judgment of the trial court
imposing the wrong penalty of reclusion
perpetua. If the mistake in the penalty is now
rectified with the death sentence being
substituted therefor, as undeniably it should
be, then the case will consequently be before
this Court on automatic review. That
provision calling for automatic review when
capital punishment is inflicted 7 serves equally
the interests of both the defense and the
prosecution through protective features
established by case law.
Thus, even if the accused had unnecessarily
appealed from the judgment imposing the
penalty of death and he thereafter withdraws
his appeal, the automatic review of the case
shall nonetheless proceed, albeit without the
benefit of briefs or arguments from the
accused. 8 The automatic review of the case
shall proceed even if the death convict shall
escape,
Republic of the Philippines
SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 95322 March 1, 1993
PEOPLE OF THE
PHILIPPINES, plaintiff-appellee,
vs.
PABLITO DOMASIAN AND DR.
SAMSON TAN, accused-appellant.
The Solicitor General for plaintiff-appellee.
Silvestre L. Tagarao for appellant Pablito
Domasian.
Lino M. Patajo for appellant Dr. Samson Tan.
CRUZ, J.:
The boy was detained for only about three
hours and was released even before his
parents received the ransom note. But it
spawned a protracted trial spanning all of 8
years and led to the conviction of the two
accused. 1
28
The victim was Enrico Paulo Agra, who was 8
years old at the time of the incident in
question. The accused were Pablito Domasian
and Samson Tan, the latter then a resident
physician in the hospital owned by Enrico's
parents. They were represented by separate
lawyers at the trial and filed separate briefs in
this appeal.
The evidence of the prosecution showed that
in the morning of March 11, 1982, while
Enrico was walking with a classmate along
Roque street in the poblacion of Lopez,
Quezon, he was approached by a man who
requested his assistance in getting his father's
signature on a medical certificate. Enrico
agreed to help and rode with the man in a
tricycle to Calantipayan, where he waited
outside while the man went into a building to
get the certificate. Enrico became
apprehensive and started to cry when, instead
of taking him to the hospital, the man flagged
a minibus and forced him inside, holding him
firmly all the while. The man told him to stop
crying or he would not be returned to his
father. When they alighted at Gumaca, they
took another tricycle, this time bound for the
municipal building from where they walked to
the market. Here the man talked to a jeepney
driver and handed him an envelope addressed
to Dr. Enrique Agra, the boy's father. The two
then boarded a tricycle headed for San
Vicente, with the man still firmly holding
Enrico, who continued crying. This aroused
the suspicion of the driver, Alexander Grate,
who asked the man about his relationship with
the boy. The man said he and the boy were
brothers, making Grate doubly suspicious
because of the physical differences between
the two and the wide gap between their ages.
Grate immediately reported the matter to two
barangay tanods when his passengers alighted
from the tricycle. Grate and the tanods went
after the two and saw the man dragging the
boy. Noticing that they were being pursued,
the man told Enrico to run fast as their
pursuers might behead them. Somehow, the
man managed to escape, leaving Enrico
behind. Enrico was on his way home in a
passenger jeep when he met his parents, who
were riding in the hospital ambulance and
already looking for him. 2
At about 1:45 in the afternoon of the same
day, after Enrico's return, Agra received an
envelope containing a ransom note. The note
demanded P1 million for the release of Enrico
and warned that otherwise the boy would be
killed. Agra thought the handwriting in the
note was familiar. After comparing it with
some records in the hospital, he gave the note
to the police, which referred it to the NBI for
examination. 3
The test showed that it bad been written by
Dr. Samson Tan. 4 On the other hand, Enrico
was shown a folder of pictures in the police
station so be could identify the man who had
detained him, and he pointed to the picture of
Pablito Domasian. 5 Domasian and Tan were
subsequently charged with the crime of
kidnapping with serious illegal detention in
the Regional Trial Court of Quezon. 6
The defense of both accused was denial and
alibi. Domasian claimed that at the time of the
incident he was watching a mahjong game in
a friend's house and later went to an optical
clinic with his wife for the refraction of his
eyeglasses. 7 Dr. Tan for his part said he was
in Manila. 8
After trial Judge Enrico A. Lanzanas found
both accused guilty as charged and sentenced
them to suffer the penalty of reclusion
perpetua and all accessory penalties. They
were also required to pay P200,000.00 to Dr.
and Mrs. Enrique Agra as actual and moral
damages and attorney's fees.
In the present appeal, the accused-appellants
reiterate their denial of any participation in
the incident in question. They belittle the
credibility of the prosecution witnesses and
submit that their own witnesses are more
believable. Tan specifically challenges the
findings of the NBI and offers anew the
opposite findings of the PC/INP showing that
he was not the writer of the ransom note. He
maintains that in any case, the crime alleged
is not kidnapping with serious illegal
detention as no detention in an enclosure was
involved. If at all, it should be denominated
and punished only as grave coercion. Finally,
both Domasian and Tan insist that there is no
basis for the finding of a conspiracy between
them to make them criminally liable in equal
degree.
First, on the credibility of the witnesses. This
is assessed in the first instance by the trial
judge, whose finding in this regard is received
with much respect by the appellate court
29
because of his opportunity to directly observe
the demeanor of the witnesses on the stand.
In the case at bar, Judge Lanzanas relied
heavily on the testimony of the victim
himself, who positively identified Domasian
as the person who detained him for three
hours. The trial court observed that the boy
was "straight-forward, natural and consistent"
in the narration of his detention. The boy's
naivete made him even more believable. Tirso
Ferreras, Enrico's classmate and also his age,
pointed to Domasian with equal certainty, as
the man who approached Enrico when they
were walking together that morning of March
11, 1982. Grate, the tricycle driver who
suspected Enrico's companion and later
chased him, was also positive in identifying
Domasian. All these three witnesses did not
know Domasian until that same morning and
could have no ill motive in testifying against
him. By contrast, Eugenia Agtay, who
testified for the defense, can hardly be
considered a disinterested witness because she
admitted she had known Domasian for 3
years.
The defense asks why Domasian openly took
Enrico to several public places if the intention
was to kidnap and detain him. That is for
Domasian himself to answer. We do no have
to probe the reasons for the irrational conduct
of an accused. The more important question,
as we see it, is why Domasian detained Enrico
in the first place after pretending he needed
the boy's help. That is also for Domasian to
explain. As for Enrico's alleged willingness to
go with Domasian, this was manifested only
at the beginning, when he believed the man
sincerely needed his assistance. But he was
soon disabused. His initial confidence gave
way to fear when Domasian, after taking him
so far away from the hospital where he was
going, restrained and threatened him if he did
not stop crying.
Domasian's alibi cannot stand against his
positive identification by Enrico, Grate and
Ferreras, let alone the contradictions made by
his corroborating witness, Dr. Irene Argosino,
regarding the time he was in the optical clinic
and the manner of his payment for the
refraction. 9 Tan's alibi is not convincing
either. The circumstance that he may have
been in Manila at the time of the incident does
not prove that he could not have written the
ransom note except at that time.
Concerning the note, Rule 132, Section 22, of
the Rules of Court provides as follows:
The handwriting of a person may be proved
by any witness who believes it to be the
handwriting of such person and has seen the
person write, or has seen writing purporting to
be his upon which the witness has acted or
been charged and has thus acquired
knowledge of the handwriting of such person.
Evidence respecting the handwriting may also
be given by a comparison, made by the
witness or the court with writings admitted or
treated as genuine by the party against whom
the evidence is offered or proved to be
genuine to the satisfaction of the judge.
Two expert witnesses were presented in the
case at bar, one from the NBI, 10 who opined
that the ransom note and the standard
documents were written by one and the same
person, and another from the PC/INP 11 who
expressed a contrary conclusion. The trial
court chose to believe the NBI expert because
his examination and analysis "was more
comprehensive than the one conducted by the
PC/INP handwriting expert, who virtually
limited his reliance on the perceived
similarities and dissimilarities in the pattern
and style of the writing, thereby disregarding
the basic principle in handwriting
identification that it is not the form alone nor
anyone feature but rather a combination of all
the qualities that identify."
We have held that the value of the opinion of
a handwriting expert depends not upon his
mere statements of whether a writing is
genuine or false, but upon the assistance he
may afford in pointing out distinguishing
marks, characteristics and discrepancies in
and between genuine and false specimens of
writing which would ordinarily escape notice
or detection from an unpracticed
observer. 12 The test of genuineness ought to
be the resemblance, not the formation of
letters in some other specimens but to the
general character of writing, which is
impressed on it as the involuntary and
unconscious result
of constitution, habit or other permanent
course, and is, therefore itself permanent. 13
Presented with the conflicting opinions of the
witnesses in the case at bar, the Court feels
that the scales should tilt in favor of the
prosecution. Significantly, the NBI opinion
30
was bolstered by the testimony of Agra, who
believed that the ransom note was written by
Tan, with whose handwriting he was familiar
because they had been working in the hospital
for four years and he had seen that
handwriting every day in Tan's prescriptions
and daily reports.14
Cesar v. Sandiganbayan 15 is not applicable
because that case involved a forgery or the
deliberate imitation of another person's
signature. In the case before us, there was in
fact an effort to disguise the ransom note
writer's penmanship to prevent his discovery.
As for the nature of the crime committed,
Article 267 of the Revised Penal Code
provides as follows:
Art. 267. Kidnapping and serious illegal
detention. Any private individual who shall
kidnap or detain another, or in any manner
deprive him of his liberty, shall suffer the
penalty of reclusion perpetua to death:
1. If the kidnapping or detention shall have
lasted more than five days.
2. If it shall have been committed simulating
public authority.
3. If any serious physical injuries shall have
been inflicted upon the person kidnapped or
detained; of if threats to kill him shall have
been made.
4. If the person kidnapped or detained shall be
a minor, female or a public officer.
The penalty shall be death where the
kidnapping or detention was committed for
the purpose of extorting ransom from the
victim or any other person; even if none of the
circumstances above-mentioned were present
in the commission of the offense.
Contrary to Tan's submission, this crime may
consist not only in placing a person in an
enclosure but also in detaining him or
depriving him in any manner of his
liberty. 16 In the case at bar, it is noted that
although the victim was not confined in an
enclosure, he was deprived of his liberty when
Domasian restrained him from going home
and dragged him first into the minibus that
took them to the municipal building in
Gumaca, thence to the market and then into
the tricycle bound for San Vicente. The
detention was committed by Domasian, who
was a private individual, and Enrico was a
minor at that time. The crime clearly comes
under Par. 4 of the above-quoted article.
Tan claims that the lower court erred in not
finding that the sending of the ransom note
was an impossible crime which he says is not
punishable. His reason is that the second
paragraph of Article 4 of the Revised Penal
Code provides that criminal liability shall be
incurred "by any person performing an act
which would be an offense against persons or
property, were it not for the inherent
impossibility of its accomplishment or on
account of the employment of inadequate or
ineffectual means." As the crime alleged is not
against persons or property but against liberty,
he argues that it is not covered by the said
provision.
Tan conveniently forgets the first paragraphs
of the same article, which clearly applies to
him, thus:
Art. 4. Criminal liability. Criminal liability
shall be incurred:
1. By any person committing a felony (delito)
although the wrongful act done be different
from that which he intended.
xxx xxx xxx
Even before the ransom note was received,
the crime of kidnapping with serious illegal
detention had already been committed. The
act cannot be considered an impossible crime
because there was no inherent improbability
of its accomplishment or the employment of
inadequate or ineffective means. The delivery
of the ransom note after the rescue of the
victim did not extinguish the offense, which
had already been consummated when
Domasian deprived Enrico of his liberty. The
sending of the ransom note would have had
the effect only of increasing the penalty to
death under the last paragraph of Article 267
although this too would not have been
possible under the new Constitution.
On the issue of conspiracy, we note first that it
exists when two or more persons come to an
agreement concerning the commission of a
felony and decide to commit it, whether they
31
act through physical volition of one or all,
proceeding severally or collectively. 17
It is settled that conspiracy can be inferred
from and proven by the acts of the accused
themselves when said acts point to a joint
purpose and design, concerted action and
community of interests. 18 In the instant case,
the trial court correctly held that conspiracy
was proved by the act of Domasian in
detaining Enrico; the writing of the ransom
note by Tan; and its delivery by Domasian to
Agra. These acts were complementary to each
other and geared toward the attainment of the
common ultimate objective, viz., to extort the
ransom of P1 million in exchange for Enrico's
life.
The motive for the offense is not difficult to
discover. According to Agra, Tan approached
him six days before the incident happened and
requested a loan of at least P15,000.00. Agra
said he had no funds at that moment and Tan
did not believe him, angrily saying that Agra
could even raise a million pesos if he really
wanted to help. 19The refusal obviously
triggered the plan to kidnap Enrico and
demand P1 million for his release.
The constitutional issues raised by Domasian
do not affect the decision in this case. His
claim that he was arrested without warrant
and then tortured and held incommunicado to
extort a confession from him does not vitiate
his conviction. He never gave any confession.
As for the allegation that the seizure of the
documents used for comparison with the
ransom note was made without a search
warrant, it suffices to say that such documents
were taken by Agra himself and not by the
NBI agents or other police authorities. We
held in the case of People vs. Andre
Marti, 20 that the Bill of Rights cannot be
invoked against acts of private individuals,
being directed only against the government
and its law-enforcement agencies and
limitation on official action.
We are satisfied that Tan and Domasian, in
conspiracy with each other, committed the
crime of kidnapping as defined and penalized
under Article 267 of the Revised Penal Code
and so deserve the penalty imposed upon
them by the trial court.
WHEREFORE, the appealed decision is
AFFIRMED, with costs against the accused-
appellants.

Let a copy of this decision be sent to the

Commission on Human Rights for
investigation of the alleged violation of the
constitutional rights of Pablito Domasian.

SO ORDERED.

32