G.R. No.

135981               September 29, 2000

PEOPLE OF THE PHILIPPINES, appellee,

vs.
MARIVIC GENOSA, appellant.

RESOLUTION

PANGANIBAN, J.:

It is a hornbook rule that an appeal in criminal cases opens the entire records to review. The
Court may pass upon all relevant issues, including those factual in nature and those that may
not have been brought before the trial court. This is true especially in cases involving the
imposition of the death penalty, in which the accused must be allowed to avail themselves of all
possible avenues for their defense. Even novel theories such as the "battered woman
syndrome," which is alleged to be equivalent to self-defense, should be heard, given due
consideration and ruled upon on the merits, not rejected merely on technical or procedural
grounds. Criminal conviction must rest on proof of guilt beyond reasonable doubt.

The Case

For resolution by the Court is an Urgent Omnibus Motion filed by Appellant Marivic Genosa y
Isidro in connection with the automatic review of the September 25, 1998 "Judgment" 1 of the
Regional Trial Court (RTC) of Ormoc City2 in Criminal Case No. 5016-0. The RTC found her guilty
of parricide aggravated by treachery and sentenced her to death.

In an Information3 dated November 14, 1996, Provincial Prosecutor I Rosario D. Beleta charged

appellant-movant with parricide allegedly committed as follows:

"That on or about the 15th day of November 1995, at Barangay Bilwang, Municipality of Isabel,
Province of Leyte, Philippines and within the jurisdiction of this Honorable Court, the above-
named accused, with intent to kill, with treachery and evident premeditation, did then and
there wilfully, unlawfully and feloniously attack, assault, hit and wound one BEN GENOSA, her
legitimate husband, with the use of a hard deadly weapon, which the accused had provided
herself for the purpose, [causing] the following wounds, to wit:

'Cadaveric spasm.

'Body on the 2nd stage of decomposition.

'Face, black, blown[ ]up & swollen w/ evident post- mortem lividity. Eyes protruding from its
sockets and tongue slightly protrudes out of the mouth.
'Fracture, open, depressed, circular located at the occipital bone of the head, resulting [in]
laceration of the brain, spontaneous rupture of the blood vessels on the posterior surface of
the brain, laceration of the dura and meningeal vessels producing severe intracranial
hemorrhage.

'Blisters at both extrem[i]ties, anterior chest, posterior chest, trunk w/ shedding of the
epidermis.

'Abdomen distended w/ gas. Trunk bloated.'

which caused his death."

After arraignment and trial, the court a quo promulgated its Judgment, the dispositive portion
of which reads:

"WHEREFORE, after all the foregoing being duly considered, the Court finds the accused,
Marivic Genosa y Isidro, GUILTY beyond reasonable doubt of the crime of parricide as provided
under Article 246 of the Revised Penal Code as restored by Sec. 5, RA No. 7659, and after
finding treachery as a generic aggravating circumstance and none of mitigating circumstance,
hereby sentences the accused with the penalty of DEATH.

The Court likewise penalizes the accused to pay the heirs of the deceased the sum of fifty
thousand pesos (P50,000.00), Philippine currency as indemnity and another sum of fifty
thousand pesos (P50,000.00), Philippine currency as moral damages."

The Antecedents

Prior to the filing of her Appeal Brief, appellant submitted an Urgent Omnibus Motion, 4 to bring
"to the attention of the x x x Court certain facts and circumstances which, if found valid, could
warrant the setting aside of [her] conviction and the imposition of the death penalty."

Appellant alleges that the trial court grievously erred in concluding that she had lied about the
means she employed in killing her husband. On the contrary, she had consistently claimed that
she had shot her husband. Yet the trial judge simply ruled that the cause of his death was
"cardiopulmonary arrest secondary to severe intracranial hemorrhage due to a depressed
fracture of the occipital bone," which resulted from her admitted act of "smashing" him with a
pipe. Such conclusion was allegedly unsupported by the evidence on record, which bore no
forensic autopsy report on the body of the victim.

Appellant further alleges that despite the evidence on record of repeated and severe beatings
she had suffered at the hands of her husband, the trial court failed to appreciate her self-
defense theory. She claims that under the surrounding circumstances, her act of killing her
husband was equivalent to self-defense. Furthermore, she argues that if she "did not lie about
how she killed her husband, then she did not lie about the abuse she suffered at his hands."
She thus prays for the following reliefs:5

"1. The Honorable Court allow an exhumation of the body of the victim, Ben M. Genosa,
and a re-examination of the cause of death.

2. The Honorable Court submit accused-appellant for examination by qualified

psychologists and psychiatrists of the Court to determine her state of mind at the time
of the killing of her spouse, Ben M. Genosa.

3. Thereafter, the Honorable Court allow the reports of the psychologists and
psychiatrists to form part of the records of the case for purposes of the automatic
review or, in the alternative, to allow a partial re-opening of the case before a lower
court in Metro Manila to admit the testimony of said psychologists and psychiatrists."

On August 22, 2000, the solicitor general, on behalf of the State, filed his Comment, 6 which
substantially objected to the Motion on the ground that appellant had not been "deprived of
her right to due process, substantial or procedural."

The Issues

In brief, the issues for our resolution are (1) whether the body of the victim should be exhumed
and reexamined in order to ascertain the cause of his death, and (2) whether the appellant
should be examined by qualified psychologists or psychiatrists in order to determine her state
of mind at the time of the killing.

The Court's Ruling

The Court grants in part the Motion of appellant. We remand the case to the RTC for the
reception of evidence from qualified psychologists or psychiatrists whom the parties may
present to establish her state of mind at the time of the killing.

First Issue:  No Need for a Reexamination of Cause of Death

Accused-appellant seeks the exhumation of the victim's body to be able to determine his exact
cause of death, assailing the court a quo's conclusion that he was "smashed or beaten at the
back of his head" rather than shot, as claimed by appellant.

Considering that the appellant has admitted the fact of killing her husband and the acts of
hitting his nape with a metal pipe and of shooting him at the back of his head, the Court
believes that exhumation is unnecessary, if not immaterial, to determine which of said acts
actually caused the victim's death. There is no need to exhume the body at this time and
conduct an autopsy thereon for the purpose.
Moreover, the matter of proving the cause of death should have been made before the trial
court. Time and again, we have said that this Court is not a trier of facts. Neither will it
authorize the firsthand reception of evidence, where the opportunity to offer the same was
available to the party during the trial stage. Consistent with this principle alone, the prayer
sought by appellant for the exhumation of the victim's body cannot be granted.

Second Issue: The Need to Determine Appellant's State of Mind at the Time of the Killing

In seeking to be "examined and evaluated by psychologists and psychiatrists to bring into

evidence the abuse inflicted upon her; [and] to determine whether such abuse will support the
'battered woman syndrome'," the appellant brings to the fore a novel defense theory. Through
Counsel Katrina Legarda, she asks the Court to "re-evaluate the traditional elements" used in
determining self-defense and to consider the "battered woman syndrome" as a viable plea
within the concept of self-defense.

Allegedly, there are four characteristics of the syndrome: (1) the woman believes that the
violence was her fault; (2) she has an inability to place the responsibility for the violence
elsewhere; (3) she fears for her life and/or her children's lives; and (4) she has an irrational
belief that the abuser is omnipresent and omniscient. 7 Living in constant danger of harm or
death, she knows that future beatings are almost certain to occur and will escalate over time.
Her intimate knowledge of the violent nature of her batterer makes her alert to when a
particular attack is forthcoming, and when it will seriously threaten her survival. Trapped in a
cycle of violence and constant fear, it is not unlikely that she would succumb to her
helplessness and fail to perceive possible solutions to the problem other than to injure or kill
her batterer. She is seized by fear of an existing or impending lethal aggression and thus would
have no opportunity beforehand to deliberate on her acts and to choose a less fatal means of
eliminating her sufferings.

Appellant further alleges that the syndrome is already a recognized form of self-defense in the
United States and in Europe. In the US particularly, it is classified as a post-traumatic stress
disorder, rather than a form of mental illness.8 It has been held admissible in order to assess a
defendant's perception of the danger posed by the abuser.9

In view of the foregoing, Appellant Genosa pleads that she be allowed to present evidence to
prove that her relationship with her spouse-victim had afflicted her with the syndrome.
Allegedly, an expert can explain how her experiences as a battered woman had affected her
perception of danger and her honest belief in its imminence, and why she had resorted to force
against her batterer.

The records of the case already bear some evidence on domestic violence between appellant
and her deceased husband. A defense witness, Dr. Dino Caing, testified that she had consulted
him at least six (6) times due to injuries related to domestic violence and twenty-three (23)
times for severe hypertension due to emotional stress.10 Even the victim's brother and mother
attested to the spouses' quarrels every now and then. The court a quo, however, simplistically
ruled that since violence had not immediately preceded the killing, self-defense could not be
appreciated.

Indeed, there is legal and jurisprudential lacuna with respect to the so-called "battered woman
syndrome" as a possible modifying circumstance that could affect the criminal liability or
penalty of the accused. The discourse of appellant on the subject in her Omnibus Motion has
convinced the Court that the syndrome deserves serious consideration, especially in the light of
its possible effect on her very life. It could be that very thin line between death and life or even
acquittal. The Court cannot, for mere technical or procedural objections, deny appellant the
opportunity to offer this defense, for any criminal conviction must be based on proof of
guilt beyond reasonable doubt. Accused persons facing the possibility of the death penalty must
be given fair opportunities to proffer all defenses possible that could save them from capital
punishment.

In People v. Parazo,11 after final conviction of appellant therein, this Court granted his Urgent
Omnibus Motion and allowed him to undergo mental, neurologic and otolaryngologic
examination and evaluation to determine whether he was a deaf-mute. Based on findings that
he really was deaf and mute, yet unaided during the trial by an expert witness who could
professionally understand and interpret his actions and mutterings, the Court granted him re-
arraignment and retrial. It justified its action on the principle that "only upon proof of guilt
beyond reasonable doubt may [the accused] be consigned to the lethal injection chamber."

More recently in People v. Estrada,12 we likewise nullified the trial proceedings and remanded
the case "to the court a quo for a conduct of a proper mental examination on accused-
appellant, a determination of his competency to stand trial, and for further proceedings." In
that case, the defense counsel had moved to suspend the arraignment of the accused, who
could not properly and intelligently enter a plea because of his mental defect, and to confine
him instead in a psychiatric ward. But the trial court denied the Motion, after simply
propounding questions to the accused and determining for itself that he could understand and
answer them "intelligently." After trial, he was convicted of murder aggravated by cruelty and
thus sentenced to death.

In nullifying the trial proceedings, this Court noted:13

"The trial court took it solely upon itself to determine the sanity of accused-appellant. The trial
judge is not a psychiatrist or psychologist or some other expert equipped with the specialized
knowledge of determining the state of a person's mental health. To determine the accused-
appellant's competency to stand trial, the court, in the instant case, should have at least
ordered the examination of accused-appellant, especially in the light of the latter's history of
mental illness."

It was held that in denying appellant an examination by a competent medical expert, the trial
court practically denied him a fair trial prior to conviction, in violation of his constitutional
rights.
Moreover, proof of insanity could have exempted appellant from criminal liability. If the
accused had not performed the act voluntarily, then he could not have been criminally liable.
The Court, through Mr. Justice Reynato S. Puno, emphasized:

"The basic principle in our criminal law is that a person is criminally liable for a felony
committed by him. Under the classical theory on which our penal code is mainly based, the
basis of criminal liability is human free will. Man is essentially a moral creature with an
absolutely free will to choose between good and evil. When he commits a felonious or criminal
act (delito doloso), the act is presumed to have been done voluntarily, i.e., with freedom,
intelligence and intent. Man, therefore, should be adjudged or held accountable for wrongful
acts so long as free will appears unimpaired."14

In the instant case, it is equally important to determine whether Appellant Genosa had acted
freely, intelligently and voluntarily when she killed her spouse. The Court, however, cannot
properly evaluate her battered-woman-syndrome defense, absent expert testimony on her
mental and emotional state at the time of the killing and the possible psychological cause and
effect of her fatal act. Unlike in Parazo, we cannot simply refer her for proper psychological or
psychiatric examination and thereafter admit the findings and evaluation as part of the records
of the cases for purposes of automatic review. The prosecution has likewise the right to a fair
trial, which includes the opportunity to cross-examine the defense witnesses and to refute the
expert opinion given. Thus, consistent with the principle of due process, a partial reopening of
the case is apropos, so as to allow the defense the opportunity to present expert evidence
consistent with our foregoing disquisition, as well as the prosecution the opportunity to cross
examine and refute the same.

WHEREFORE, the Urgent Omnibus Motion of Appellant Marivic Genosa is PARTLY

GRANTED. The case is hereby REMANDED to the trial court for the reception of expert
psychological and/or psychiatric opinion on the "battered woman syndrome" plea, within
ninety (90) days from notice, and, thereafter to forthwith report to this Court the proceedings
taken, together with the copies of the TSN and relevant documentary evidence, if any,
submitted.

SO ORDERED.

G.R. No. 125865           January 28, 2000

JEFFREY LIANG (HUEFENG), petitioner,

vs.
PEOPLE OF THE PHILIPPINES, respondent.

YNARES-SANTIAGO, J.:
Petitioner is an economist working with the Asian Development Bank (ADB). Sometime in 1994,
for allegedly uttering defamatory words against fellow ADB worker Joyce Cabal, he was charged
before the Metropolitan Trial Court (MeTC) of Mandaluyong City with two counts of grave oral
defamation docketed as Criminal Cases Nos. 53170 and 53171. Petitioner was arrested by
virtue of a warrant issued by the MeTC. After fixing petitioner's bail at P2,400.00 per criminal
charge, the MeTC released him to the custody of the Security Officer of ADB. The next day, the
MeTC judge received an "office of protocol" from the Department of Foreign Affairs (DFA)
stating that petitioner is covered by immunity from legal process under Section 45 of the
Agreement between the ADB and the Philippine Government regarding the Headquarters of
the ADB (hereinafter Agreement) in the country. Based on the said protocol communication
that petitioner is immune from suit, the MeTC judge without notice to the prosecution
dismissed the two criminal cases. The latter filed a motion for reconsideration which was
opposed by the DFA. When its motion was denied, the prosecution filed a petition
for certiorari and mandamus with the Regional Trial Court (RTC) of Pasig City which set aside
the MeTC rulings and ordered the latter court to enforce the warrant of arrest it earlier issued.
After the motion for reconsideration was denied, petitioner elevated the case to this Court via a
petition for review arguing that he is covered by immunity under the Agreement and that no
preliminary investigation was held before the criminal cases were filed in court.1âwphi1.nêt

The petition is not impressed with merit.

First, courts cannot blindly adhere and take on its face the communication from the DFA that
petitioner is covered by any immunity. The DFA's determination that a certain person is covered
by immunity is only preliminary which has no binding effect in courts. In receiving ex-parte the
DFA's advice and in motu propio dismissing the two criminal cases without notice to the
prosecution, the latter's right to due process was violated. It should be noted that due process
is a right of the accused as much as it is of the prosecution. The needed inquiry in what capacity
petitioner was acting at the time of the alleged utterances requires for its resolution evidentiary
basis that has yet to be presented at the proper time.1 At any rate, it has been ruled that the
mere invocation of the immunity clause does not ipso facto result in the dropping of the
charges.2

Second, under Section 45 of the Agreement which provides:

Officers and staff of the Bank including for the purpose of this Article experts and
consultants performing missions for the Bank shall enjoy the following privileges and
immunities:

a.) immunity from legal process with respect to acts performed by them in their
official capacity except when the Bank waives the immunity.

the immunity mentioned therein is not absolute, but subject to the exception that the acts was
done in "official capacity." It is therefore necessary to determine if petitioner's case falls within
the ambit of Section 45(a). Thus, the prosecution should have been given the chance to rebut
the DFA protocol and it must be accorded the opportunity to present its controverting
evidence, should it so desire.

Third, slandering a person could not possibly be covered by the immunity agreement because
our laws do not allow the commission of a crime, such as defamation, in the name of official
duty.3 The imputation of theft is ultra vires and cannot be part of official functions. It is well-
settled principle of law that a public official may be liable in his personal private capacity for
whatever damage he may have caused by his act done with malice or in bad faith or beyond the
scope of his authority or jurisdiction.4 It appears that even the government's chief legal counsel,
the Solicitor General, does not support the stand taken by petitioner and that of the DFA.

Fourth, under the Vienna Convention on Diplomatic Relations, a diplomatic agent, assuming
petitioner is such, enjoys immunity from criminal jurisdiction of the receiving state except in the
case of an action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving state outside his official functions. 5 As already mentioned above, the
commission of a crime is not part of official duty.

Finally, on the contention that there was no preliminary investigation conducted, suffice it to
say that preliminary investigation is not a matter of right in cases cognizable by the MeTC such
as the one at bar.6 Being purely a statutory right, preliminary investigation may be invoked only
when specifically granted by law.7 The rule on the criminal procedure is clear that no
preliminary investigation is required in cases falling within the jurisdiction of the MeTC. 8 Besides
the absence of preliminary investigation does not affect the court's jurisdiction nor does it
impair the validity of the information or otherwise render it defective. 9

WHEREFORE, the petition is DENIED.

SO ORDERED.1âwphi1.nêt

THIRD DIVISION

G.R. No. 111709            August 30, 2001

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,

vs.
ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO O. CHANGCO, ANDRES C. INFANTE, CHEONG
SAN HIONG, and JOHN DOES, accused-appellants.

MELO, J.:

This is one of the older cases which unfortunately has remained in docket of the Court for
sometime. It was reassigned, together with other similar cases, to undersigned ponente in
pursuance of A.M. No. 00-9-03-SC dated February 27, 2001.
In the evening of March 2, 1991, "M/T Tabangao," a cargo vessel owned by the PNOC Shipping
and Transport Corporation, loaded with 2,000 barrels of kerosene, 2,600 barrels of regular
gasoline, and 40,000 barrels of diesel oil, with a total value of P40,426,793,87, was sailing off
the coast of Mindoro near Silonay Island.

The vessel, manned by 21 crew members, including Captain Edilberto Libo-on, Second Mate
Christian Torralba, and Operator Isaias Ervas, was suddenly boarded, with the use of an
aluminum ladder, by seven fully armed pirates led by Emilio Changco, older brother of accused-
appellant Cecilio Changco. The pirates, including accused-appellants Tulin, Loyola, and Infante,
Jr. were armed with M-16 rifles, .45 and .38 caliber handguns, and bolos. They detained the
crew and took complete control of the vessel. Thereafter, accused-appellant Loyola ordered
three crew members to paint over, using black paint, the name "M/T Tabangao" on the front
and rear portions of the vessel, as well as the PNOC logo on the chimney of the vessel. The
vessel was then painted with the name "Galilee," with registry at San Lorenzo, Honduras. The
crew was forced to sail to Singapore, all the while sending misleading radio messages to PNOC
that the ship was undergoing repairs.

PNOC, after losing radio contact with the vessel, reported the disappearance of the vessel to
the Philippine Coast Guard and secured the assistance of the Philippine Air Force and the
Philippine Navy. However, search and rescue operations yielded negative results. On March 9,
1991, the ship arrived in the vicinity of Singapore and cruised around the area presumably to
await another vessel which, however, failed to arrive. The pirates were thus forced to return to
the Philippines on March 14, 1991, arriving at Calatagan, Batangas on March 20, 1991 where it
remained at sea.

On March 28, 1991, the "M/T Tabangao" again sailed to and anchored about 10 to 18 nautical
miles from Singapore's shoreline where another vessel called "Navi Pride" anchored beside it.
Emilio Changco ordered the crew of "M/T Tabangao" to transfer the vessel's cargo to the hold
of "Navi Pride". Accused-appellant Cheong San Hiong supervised the crew of "Navi Pride" in
receiving the cargo. The transfer, after an interruption, with both vessels leaving the area, was
completed on March 30, 1991.

On March 30, 1991, "M/T Tabangao" returned to the same area and completed the transfer of
cargo to "Navi Pride."

On April 8, 1991, "M/T Tabangao" arrived at Calatagan, Batangas, but the vessel remained at
sea. On April 10, 1991, the members of the crew were released in three batches with the stern
warning not to report the incident to government authorities for a period of two days or until
April 12, 1991, otherwise they would be killed. The first batch was fetched from the shoreline
by a newly painted passenger jeep driven by accused-appellant Cecilio Changco, brother of
Emilio Changco, who brought them to Imus, Cavite and gave P20,000.00 to Captain Libo-on for
fare of the crew in proceeding to their respective homes. The second batch was fetched by
accused-appellant Changco at midnight of April 10, 1991 and were brought to different places
in Metro Manila.
On April 12, 1991, the Chief Engineer, accompanied by the members of the crew, called the
PNOC Shipping and Transport Corporation office to report the incident. The crew members
were brought to the Coast Guard Office for investigation. The incident was also reported to the
National Bureau of Investigation where the officers and members of the crew executed sworn
statements regarding the incident.

A series of arrests was thereafter effected as follows:

a. On May 19, 1991, the NBI received verified information that the pirates were present at U.K.
Beach, Balibago, Calatagan, Batangas. After three days of surveillance, accused-appellant Tulin
was arrested and brought to the NBI headquarters in Manila.

b. Accused-appellants Infante, Jr. and Loyola were arrested by chance at Aguinaldo Hi-way by
NBI agents as the latter were pursuing the mastermind, who managed to evade arrest.

c. On May 20, 1991, accused-appellants Hiong and Changco were arrested at the lobby of Alpha
Hotel in Batangas City.

On October 24, 1991, an Information charging qualified piracy or violation of Presidential

Decree No. 532 (Piracy in Philippine Waters) was filed against accused-appellants, as follows:

The undersigned State Prosecutor accuses ROGER P. TULIN, VIRGILIO I. LOYOLA, CECILIO
O. CHANGCO, ANDRES C. INFANTE, and CHEONG SAN HIONG, and nine (9) other JOHN
DOES of qualified piracy (Violation of P.D. No. 532), committed as follows:

That on or about and during the period from March 2 to April 10, 1991, both
dates inclusive, and for sometime prior and subsequent thereto, and within the
jurisdiction of this Honorable Court, the said accused, then manning a motor
launch and armed with high powered guns, conspiring and confederating
together and mutually helping one another, did then and there, wilfully,
unlawfully and feloniously fire upon, board and seize while in the Philippine
waters M/T PNOC TABANGCO loaded with petroleum products, together with
the complement and crew members, employing violence against or intimidation
of persons or force upon things, then direct the vessel to proceed to Singapore
where the cargoes were unloaded and thereafter returned to the Philippines on
April 10, 1991, in violation of the aforesaid law.

CONTRARY TO LAW.

(pp. 119-20, Rollo.)

This was docketed as Criminal Case No. 91-94896 before Branch 49 of the Regional Trial Court
of the National Capital Judicial Region stationed in Manila. Upon arraignment, accused-
appellants pleaded not guilty to the charge. Trial thereupon ensued.
Accused-appellants Tulin, Infante, Jr., and Loyola, notwithstanding some inconsistencies in their
testimony as to where they were on March 1, 1991, maintained the defense of denial, and
disputed the charge, as well as the transfer of any cargo from "M/T Tabangao" to the "Navi
Pride." All of them claimed having their own respective sources of livelihood. Their story is to
the effect that on March 2, 1991, while they were conversing by the beach, a red speedboat
with Captain Edilberto Liboon and Second Mate Christian Torralba on board, approached the
seashore. Captain Liboon inquired from the three if they wanted to work in a vessel. They were
told that the work was light and that each worker was to be paid P3,000.00 a month with
additional compensation if they worked beyond that period. They agreed even though they had
no sea-going experience. On board, they cooked, cleaned the vessel, prepared coffee, and ran
errands for the officers. They denied having gone to Singapore, claiming that the vessel only
went to Batangas. Upon arrival thereat in the morning of March 21, 1991, they were paid
P1,000.00 each as salary for nineteen days of work, and were told that the balance would be
remitted to their addresses. There was neither receipt nor contracts of employment signed by
the parties.

Accused-appellant Changco categorically denied the charge, averring that he was at home
sleeping on April 10, 1991. He testified that he is the younger brother of Emilio Changco, Jr.

Accused-appellant Cheong San Hiong, also known as Ramzan Ali, adduced evidence that he
studied in Sydney, Australia, obtaining the "Certificate" as Chief Officer, and later completed
the course as a "Master" of a vessel, working as such for two years on board a vessel. He was
employed at Navi Marine Services, Pte., Ltd. as Port Captain. The company was engaged in the
business of trading petroleum, including shipoil, bunker lube oil, and petroleum to domestic
and international markets. It owned four vessels, one of which was "Navi Pride."

On March 2, 1991, the day before "M/T Tabangao" was seized by Emilio Changco and his
cohorts, Hiong's name was listed in the company's letter to the Mercantile Section of the
Maritime Department of the Singapore government as the radio telephone operator on board
the vessel "Ching Ma."

The company was then dealing for the first time with Paul Gan, a Singaporean broker, who
offered to sell to the former bunker oil for the amount of 300,000.00 Singapore dollars. After
the company paid over one-half of the aforesaid amount to Paul Gan, the latter, together with
Joseph Ng, Operations Superintendent of the firm, proceeded to the high seas on board "Navi
Pride" but failed to locate the contact vessel.

The transaction with Paul Gan finally pushed through on March 27, 1991. Hiong, upon his
return on board the vessel "Ching Ma," was assigned to supervise a ship-to-ship transfer of
diesel oil off the port of Singapore, the contact vessel to be designated by Paul Gan. Hiong was
ordered to ascertain the quantity and quality of the oil and was given the amount of 300,000.00
Singapore Dollars for the purchase. Hiong, together with Paul Gan, and the surveyor William
Yao, on board "Navi Pride" sailed toward a vessel called "M/T Galilee". Hiong was told that
"M/T Galilee" would be making the transfer. Although no inspection of "Navi Pride" was made
by the port authorities before departure, Navi Marine Services, Pte., Ltd. was able to procure a
port clearance upon submission of General Declaration and crew list. Hiong, Paul Gan, and the
brokers were not in the crew list submitted and did not pass through the immigration. The
General Declaration falsely reflected that the vessel carried 11,900 tons.

On March 28, 1991, "Navi Pride" reached the location of "M/T Galilee". The brokers then told
the Captain of the vessel to ship-side with "M/T Galilee" and then transfer of the oil transpired.
Hiong and the surveyor William Yao met the Captain of "M/T Galilee," called "Captain Bobby"
(who later turned out to be Emilio Changco). Hiong claimed that he did not ask for the full name
of Changco nor did he ask for the latter's personal card.

Upon completion of the transfer, Hiong took the soundings of the tanks in the "Navi Pride" and
took samples of the cargo. The surveyor prepared the survey report which "Captain Bobby"
signed under the name "Roberto Castillo." Hiong then handed the payment to Paul Gan and
William Yao. Upon arrival at Singapore in the morning of March 29, 1991, Hiong reported the
quantity and quality of the cargo to the company.

Thereafter, Hiong was again asked to supervise another transfer of oil purchased by the firm "
from "M/T Galilee" to "Navi Pride." The same procedure as in the first transfer was observed.
This time, Hiong was told that that there were food and drinks, including beer, purchased by
the company for the crew of "M/T Galilee. The transfer took ten hours and was completed on
March 30, 1991. Paul Gan was paid in full for the transfer.

On April 29 or 30, 1991, Emilio Changco intimated to Hiong that he had four vessels and wanted
to offer its cargo to cargo operators. Hiong was asked to act as a broker or ship agent for the
sale of the cargo in Singapore. Hiong went to the Philippines to discuss the matter with Emilio
Changco, who laid out the details of the new transfer, this time with "M/T Polaris" as contact
vessel. Hiong was told that the vessel was scheduled to arrive at the port of Batangas that
weekend. After being billeted at Alpha Hotel in Batangas City, where Hiong checked in under
the name "SONNY CSH." A person by the name of "KEVIN OCAMPO," who later turned out to be
Emilio Changco himself, also checked in at Alpha Hotel. From accused-appellant Cecilio
Changco, Hiong found out that the vessel was not arriving. Hiong was thereafter arrested by
NBI agents.

After trial, a 95-page decision was rendered convicting accused-appellants of the crime
charged. The dispositive portion of said decision reads:

WHEREFORE, in the light of the foregoing considerations, judgment is hereby rendered

by this Court finding the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and
Cecilio Changco guilty beyond reasonable doubt, as principals, of the crime of piracy in
Philippine Waters defined in Section 2(d) of Presidential Decree No. 532 and the
accused Cheong San Hiong, as accomplice, to said crime. Under Section 3(a) of the said
law, the penalty for the principals of said crime is mandatory death. However,
considering that, under the 1987 Constitution, the Court cannot impose the death
 penalty, the accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr., and Cecilio Changco
are hereby each meted the penalty of RECLUSION PERPETUA, with all the accessory
penalties of the law. The accused Cheong San Hiong is hereby meted the penalty of
RECLUSION PERPETUA, pursuant to Article 52 of the Revised Penal Code in relation to
Section 5 of PD 532. The accused Roger Tulin, Virgilio Loyola, Andres Infante, Jr. and
Cecilio Changco are hereby ordered to return to the PNOC Shipping and Transport
Corporation the "M/T Tabangao" or if the accused can no longer return the same, the
said accused are hereby ordered to remit, jointly and severally, to said corporation the
value thereof in the amount of P11,240,000.00, Philippine Currency, with interests
thereon, at the rate of 6% per annum from March 2, 1991 until the said amount is paid
in full. All the accused including Cheong San Hiong are hereby ordered to return to the
Caltex Philippines, Inc. the cargo of the "M/T Tabangao", or if the accused can no longer
return the said cargo to said corporation, all the accused are hereby condemned to pay,
jointly and severally, to the Caltex Refinery, Inc., the value of said cargo in the amount of
P40,426,793.87, Philippine Currency plus interests until said amount is paid in full. After
the accused Cheong San Hiong has served his sentence, he shall be deported to
Singapore.

All the accused shall be credited for the full period of their detention at the National
Bureau of Investigation and the City Jail of Manila during the pendency of this case
provided that they agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail of Manila and the National Bureau of Investigation. With costs
against all the accused.

SO ORDERED.

(pp. 149-150, Rollo.)

The matter was then elevated to this Court. The arguments of accused-appellants may be
summarized as follows:

Roger P. Tulin, Virgilio I. Loyola, Andres C. Infante, Jr., and Cecilio O. Changco

Accused-appellants Tulin, Loyola, Infante, Jr., and Cecilio Changco assert that the trial court
erred in allowing them to adopt the proceedings taken during the time they were being
represented by Mr. Tomas Posadas, a non-lawyer, thereby depriving them of their
constitutional right to procedural due process.

In this regard, said accused-appellants narrate that Mr. Posadas entered his appearance as
counsel for all of them. However, in the course of the proceedings, or on February 11, 1992, the
trial court discovered that Mr. Posadas was not a member of the Philippine Bar. This was after
Mr. Posadas had presented and examined seven witnesses for the accused.
Further, accused-appellants Tulin, Loyola, Infante, Cecilio, Changco uniformly contend that
during the custodial investigation, they were subjected to physical violence; were forced to sign
statements without being given the opportunity to read the contents of the same; were denied
assistance of counsel, and were not informed of their rights, in violation of their constitutional
rights.

Said accused-appellants also argue that the trial court erred in finding that the prosecution
proved beyond reasonable doubt that they committed the crime of qualified piracy. They allege
that the pirates were outnumbered by the crew who totaled 22 and who were not guarded at
all times. The crew, so these accused-appellants conclude, could have overpowered the alleged
pirates.

Cheong San Hiong

In his brief, Cheong argues that: (1) Republic Act No. 7659 in effect obliterated the crime
committed by him; (2) the trial court erred in declaring that the burden is lodged on him to
prove by clear and convincing evidence that he had no knowledge that Emilio Changco and his
cohorts attacked and seized the "M/T Tabangao" and/or that the cargo of the vessel was stolen
or the subject of theft or robbery or piracy; (3) the trial court erred in finding him guilty as an
accomplice to the crime of qualified piracy under Section 4 of Presidential Decree No. 532 (Anti-
Piracy and Anti-Robbery Law of 1974); (4) the trial court erred in convicting and punishing him
as an accomplice when the acts allegedly committed by him were done or executed outside of
Philippine waters and territory, stripping the Philippine courts of jurisdiction to hold him for
trial, to convict, and sentence; (5) the trial court erred in making factual conclusions without
evidence on record to prove the same and which in fact are contrary to the evidence adduced
during trial; (6) the trial court erred in convicting him as an accomplice under Section 4 of
Presidential Decree No. 532 when he was charged as a principal by direct participation under
said decree, thus violating his constitutional right to be informed of the nature and cause of the
accusation against him.

Cheong also posits that the evidence against the other accused-appellants do not prove any
participation on his part in the commission of the crime of qualified piracy. He further argues
that he had not in any way participated in the seajacking of "M/T Tabangao" and in committing
the crime of qualified piracy, and that he was not aware that the vessel and its cargo were
pirated.

As legal basis for his appeal, he explains that he was charged under the information with
qualified piracy as principal under Section 2 of Presidential Decree No. 532 which refers to
Philippine waters. In the case at bar, he argues that he was convicted for acts done outside
Philippine waters or territory. For the State to have criminal jurisdiction, the act must have
been committed within its territory.

We affirm the conviction of all the accused-appellants.

The issues of the instant case may be summarized as follows: (1) what are the legal effects and
implications of the fact that a non-lawyer represented accused-appellants during the trial?; (2)
what are the legal effects and implications of the absence of counsel during the custodial
investigation?; (3) did the trial court err in finding that the prosecution was able to prove
beyond reasonable doubt that accused-appellants committed the crime of qualified piracy?; (4)
did Republic Act No. 7659 obliterate the crime committed by accused-appellant Cheong?; and
(5) can accused-appellant Cheong be convicted as accomplice when he was not charged as such
and when the acts allegedly committed by him were done or executed outside Philippine
waters and territory?

On the first issue, the record reveals that a manifestation (Exhibit "20", Record) was executed
by accused-appellants Tulin, Loyola, Changco, and Infante, Jr. on February 11, 1991, stating that
they were adopting the evidence adduced when they were represented by a non-lawyer. Such
waiver of the right to sufficient representation during the trial as covered by the due process
clause shall only be valid if made with the full assistance of a bona fide lawyer. During the trial,
accused-appellants, as represented by Atty. Abdul Basar, made a categorical manifestation that
said accused-appellants were apprised of the nature and legal consequences of the subject
manifestation, and that they voluntarily and intelligently executed the same. They also affirmed
the truthfulness of its contents when asked in open court (tsn, February 11, 1992, pp. 7-59).

It is true that an accused person shall be entitled to be present and to defend himself in person
and by counsel at every stage of the proceedings, from arraignment to promulgation of
judgment (Section 1, Rule 115, Revised Rules of Criminal Procedure). This is hinged on the fact
that a layman is not versed on the technicalities of trial. However, it is also provided by law that
"[r]ights may be waived, unless the waiver is contrary to law, public order, public policy, morals,
or good customs or prejudicial to a third person with right recognized by law." (Article 6, Civil
Code of the Philippines). Thus, the same section of Rule 115 adds that "[u]pon motion, the
accused may be allowed to defend himself in person when it sufficiently appears to the court
that he can properly protect his rights without the assistance of counsel." By analogy, but
without prejudice to the sanctions imposed by law for the illegal practice of law, it is amply
shown that the rights of accused-appellants were sufficiently and properly protected by the
appearance of Mr. Tomas Posadas. An examination of the record will show that he knew the
technical rules of procedure. Hence, we rule that there was a valid waiver of the right to
sufficient representation during the trial, considering that it was unequivocally, knowingly, and
intelligently made and with the full assistance of a bona fide lawyer, Atty. Abdul Basar.
Accordingly, denial of due process cannot be successfully invoked where a valid waiver of rights
has been made (People vs. Serzo, 274 SCRA 553 [1997]; Sayson vs. People, 166 SCRA 680
[1988]).

However, we must quickly add that the right to counsel during custodial investigation may not
be waived except in writing and in the presence of counsel.

Section 12, Article III of the Constitution reads:

 SECTION 12. (1) Any person under investigation for the commission of an offense shall
have the right to be informed of his right to remain silent and to have competent and
independent counsel preferably of his own choice. If the person cannot afford the
services of counsel, he must be provided with one. These rights cannot be waived
except in writing and in the presence of counsel.

(2) No torture, force, violence, threat, intimidation, or any other means which vitiate the
free will shall be used against him. Secret detention places, solitary, incommunicado, or
other similar forms of detention are prohibited.

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall
be inadmissible in evidence against him.

(4) The law shall provide for penal and civil sanctions for violations of this section as well
as compensation to and rehabilitation of victims of torture or similar practices, and their
families.

Such rights originated from Miranda v. Arizona (384 U.S. 436 [1966]) which gave birth to the so-
called Miranda doctrine which is to the effect that prior to any questioning during custodial
investigation, the person must be warned that he has a right to remain silent, that any
statement he gives may be used as evidence against him, and that he has the right to the
presence of an attorney, either retained or appointed. The defendant may waive effectuation of
these rights, provided the waiver is made voluntarily, knowingly, and intelligently. The
Constitution even adds the more stringent requirement that the waiver must be in writing and
made in the presence of counsel.

Saliently, the absence of counsel during the execution of the so-called confessions of the
accused-appellants make them invalid. In fact, the very basic reading of the Miranda rights was
not even shown in the case at bar. Paragraph [3] of the aforestated Section 12 sets forth the so-
called "fruit from the poisonous tree doctrine," a phrase minted by Mr. Justice Felix Frankfurter
in the celebrated case of Nardone vs. United States (308 U.S. 388 [1939]). According to this rule,
once the primary source (the "tree") is shown to have been unlawfully obtained, any secondary
or derivative evidence (the "fruit") derived from it is also inadmissible. The rule is based on the
principle that evidence illegally obtained by the State should not be used to gain other evidence
because the originally illegally obtained evidence taints all evidence subsequently obtained
(People vs. Alicando, 251 SCRA 293 [1995]). Thus, in this case, the uncounselled extrajudicial
confessions of accused-appellants, without a valid waiver of the right to counsel, are
inadmissible and whatever information is derived therefrom shall be regarded as likewise
inadmissible in evidence against them.

However, regardless of the inadmissibility of the subject confessions, there is sufficient

evidence to convict accused-appellants with moral certainty. We agree with the sound
deduction of the trial court that indeed, Emilio Changco (Exhibits "U" and "UU") and accused-
appellants Tulin, Loyola, and Infante, Jr. did conspire and confederate to commit the crime
charged. In the words of then trial judge, now Justice Romeo J. Callejo of the Court of Appeals
—

. . . The Prosecution presented to the Court an array of witnesses, officers and members
of the crew of the "M/T Tabangao" no less, who identified and pointed to the said
Accused as among those who attacked and seized, the "M/T Tabangao" on March 2,
1991, at about 6:30 o'clock in the afternoon, off Lubang Island, Mindoro, with its cargo,
and brought the said vessel, with its cargo, and the officers and crew of the vessel, in the
vicinity of Horsebough Lighthouse, about sixty-six nautical miles off the shoreline of
Singapore and sold its cargo to the Accused Cheong San Hiong upon which the cargo
was discharged from the "M/T Tabangao" to the "Navi Pride" for the price of about
$500,000.00 (American Dollars) on March 29, and 30, 1991. . .

xxx           xxx           xxx

The Master, the officers and members of the crew of the "M/T Tabangao" were on
board the vessel with the Accused and their cohorts from March 2, 1991 up to April 10,
1991 or for more than one (1) month. There can be no scintilla of doubt in the mind of
the Court that the officers and crew of the vessel could and did see and identify the
seajackers and their leader. In fact, immediately after the Accused were taken into
custody by the operatives of the National Bureau of Investigation, Benjamin Suyo,
Norberto Senosa, Christian Torralba and Isaias Wervas executed their "Joint Affidavit"
(Exhibit "B") and pointed to and identified the said Accused as some of the pirates.

xxx           xxx           xxx

Indeed, when they testified before this Court on their defense, the three (3) Accused
admitted to the Court that they, in fact, boarded the said vessel in the evening of March
2, 1991 and remained on board when the vessel sailed to its destination, which turned
out to be off the port of Singapore.

We also agree with the trial court's finding that accused-appellants' defense of denial is not
supported by any hard evidence but their bare testimony. Greater weight is given to the
categorical identification of the accused by the prosecution witnesses than to the accused's
plain denial of participation in the commission of the crime (People v. Baccay, 284 SCRA 296
[1998]). Instead, accused-appellants Tulin, Loyola, and Infante, Jr. narrated a patently desperate
tale that they were hired by three complete strangers (allegedly Captain Edilberto Liboon,
Second Mate Christian Torralba, and their companion) while said accused-appellants were
conversing with one another along the seashore at Aplaya, Balibago, Calatagan, Batangas, to
work on board the "M/T Tabangao" which was then anchored off-shore. And readily, said
accused-appellants agreed to work as cooks and handymen for an indefinite period of time
without even saying goodbye to their families, without even knowing their destination or the
details of their voyage, without the personal effects needed for a long voyage at sea. Such
evidence is incredible and clearly not in accord with human experience. As pointed out by the
trial court, it is incredible that Captain Liboon, Second Mate Torralba, and their companion "had
to leave the vessel at 9:30 o'clock in the evening and venture in a completely unfamiliar place
merely to recruit five (5) cooks or handymen (p. 113, Rollo)."

Anent accused-appellant Changco's defense of denial with the alibi that on May 14 and 17, he
was at his place of work and that on April 10, 1991, he was in his house in Bacoor, Cavite,
sleeping, suffice it to state that alibi is fundamentally and inherently a weak defense, much
more so when uncorroborated by other witnesses (People v. Adora, 275 SCRA 441 [1997])
considering that it is easy to fabricate and concoct, and difficult to disprove. Accused-appellant
must adduce clear and convincing evidence that, at about midnight on April 10, 1991, it was
physically impossible for him to have been in Calatagan, Batangas. Changco not only failed to
do this, he was likewise unable to prove that he was in his place of work on the dates
aforestated.

It is doctrinal that the trial court's evaluation of the credibility of a testimony is accorded the
highest respect, for trial courts have an untrammeled opportunity to observe directly the
demeanor of witnesses and, thus, to determine whether a certain witness is telling the truth
(People v. Obello, 284 SCRA 79 [1998]).

We likewise uphold the trial court's finding of conspiracy. A conspiracy exists when two or more
persons come to an agreement concerning the commission of a felony and decide to commit it
(Article 8, Revised Penal Code). To be a conspirator, one need not participate in every detail of
execution; he need not even take part in every act or need not even know the exact part to be
performed by the others in the execution of the conspiracy. As noted by the trial court, there
are times when conspirators are assigned separate and different tasks which may appear
unrelated to one another, but in fact, constitute a whole and collective effort to achieve a
common criminal design.

We affirm the trial court's finding that Emilio Changco, accused-appellants Tulin, Loyola, and
Infante, Jr. and others, were the ones assigned to attack and seize the "M/T Tabangao" off
Lubang, Mindoro, while accused-appellant Cecilio Changco was to fetch the master and the
members of the crew from the shoreline of Calatagan, Batangas after the transfer, and bring
them to Imus, Cavite, and to provide the crew and the officers of the vessel with money for
their fare and food provisions on their way home. These acts had to be well-coordinated.
Accused-appellant Cecilio Changco need not be present at the time of the attack and seizure of
"M/T Tabangao" since he performed his task in view of an objective common to all other
accused-appellants.

Of notable importance is the connection of accused-appellants to one another. Accused-

appellant Cecilio Changco is the younger brother of Emilio Changco (aka Captain Bobby/Captain
Roberto Castillo/Kevin Ocampo), owner of Phil-Asia Shipping Lines. Cecilio worked for his
brother in said corporation. Their residences are approximately six or seven kilometers away
from each other. Their families are close. Accused-appellant Tulin, on the other hand, has
known Cecilio since their parents were neighbors in Aplaya, Balibago, Calatagan, Batangas.
Accused-appellant Loyola's wife is a relative of the Changco brothers by affinity. Besides, Loyola
and Emilio Changco had both been accused in a seajacking case regarding "M/T Isla Luzon" and
its cargo of steel coils and plates off Cebu and Bohol in 1989. Emilio Changco (aka Kevin
Ocampo) was convicted of the crime while Loyola at that time remained at large.

As for accused-appellant Hiong, he ratiocinates that he can no longer be convicted of piracy in

Philippine waters as defined and penalized in Sections 2[d] and 3[a], respectively of Presidential
Decree No. 532 because Republic Act No. 7659 (effective January 1, 1994), which amended
Article 122 of the Revised Penal Code, has impliedly superseded Presidential Decree No. 532.
He reasons out that Presidential Decree No. 532 has been rendered "superfluous or
duplicitous" because both Article 122 of the Revised Penal Code, as amended, and Presidential
Decree No. 532 punish piracy committed in Philippine waters. He maintains that in order to
reconcile the two laws, the word "any person" mentioned in Section 1 [d] of Presidential Decree
No. 532 must be omitted such that Presidential Decree No. 532 shall only apply to offenders
who are members of the complement or to passengers of the vessel, whereas Republic Act No.
7659 shall apply to offenders who are neither members of the complement or passengers of
the vessel, hence, excluding him from the coverage of the law.

Article 122 of the Revised Penal Code, used to provide:

ARTICLE 122. Piracy in general and mutiny on the high seas. — The penalty of reclusion
temporal shall be inflicted upon any person who, on the high seas, shall attack or seize a
vessel or, not being a member of its complement nor a passenger, shall seize the whole
or part of the cargo of said vessel, its equipment, or personal belongings of its
complement or passengers.

(Italics supplied.)

Article 122, as amended by Republic Act No. 7659 (January 1, 1994), reads:

ARTICLE 122. Piracy in general and mutiny on the high seas or in Philippine waters. —
The penalty of reclusion perpetua shall be inflicted upon any person who, on the high
seas, or in Philippine waters, shall attack or seize a vessel or, not being a member of its
complement nor a passenger, shall seize the whole or part of the cargo of said vessel, its
equipment, or personal belongings of its complement or passengers.

(Italics ours)

On the other hand, Section 2 of Presidential Decree No. 532 provides:

SECTION 2. Definition of Terms. — The following shall mean and be understood, as

follows:
 d. Piracy. — Any attack upon or seizure of any vessel or the taking away of the whole or
part thereof or its cargo, equipment, or the personal belongings of its complement or
passengers, irrespective of the value thereof, by means of violence against or
intimidation of persons or force upon things, committed by any person, including a
passenger or member of the complement of said vessel in Philippine waters, shall be
considered as piracy. The offenders shall be considered as pirates and punished as
hereinafter provided (Italics supplied).

To summarize, Article 122 of the Revised Penal Code, before its amendment, provided that
piracy must be committed on the high seas by any person not a member of its complement nor
a passenger thereof. Upon its amendment by Republic Act No. 7659, the coverage of the
pertinent provision was widened to include offenses committed "in Philippine waters." On the
other hand, under Presidential Decree No. 532 (issued in 1974), the coverage of the law on
piracy embraces any person including "a passenger or member of the complement of said
vessel in Philippine waters." Hence, passenger or not, a member of the complement or not, any
person is covered by the law.

Republic Act No. 7659 neither superseded nor amended the provisions on piracy under
Presidential Decree No. 532. There is no contradiction between the two laws. There is likewise
no ambiguity and hence, there is no need to construe or interpret the law. All the presidential
decree did was to widen the coverage of the law, in keeping with the intent to protect the
citizenry as well as neighboring states from crimes against the law of nations. As expressed in
one of the "whereas" clauses of Presidential Decree No. 532, piracy is "among the highest
forms of lawlessness condemned by the penal statutes of all countries." For this reason, piracy
under the Article 122, as amended, and piracy under Presidential Decree No. 532 exist
harmoniously as separate laws.

As regards the contention that the trial court did not acquire jurisdiction over the person of
accused-appellant Hiong since the crime was committed outside Philippine waters, suffice it to
state that unquestionably, the attack on and seizure of "M/T Tabangao" (renamed "M/T
Galilee" by the pirates) and its cargo were committed in Philippine waters, although the captive
vessel was later brought by the pirates to Singapore where its cargo was off-loaded,
transferred, and sold. And such transfer was done under accused-appellant Hiong's direct
supervision. Although Presidential Decree No. 532 requires that the attack and seizure of the
vessel and its cargo be committed in Philippine waters, the disposition by the pirates of the
vessel and its cargo is still deemed part of the act of piracy, hence, the same need not be
committed in Philippine waters.

Moreover, piracy falls under Title One of Book Two of the Revised Penal Code. As such, it is an
exception to the rule on territoriality in criminal law. The same principle applies even if Hiong,
in the instant case, were charged, not with a violation of qualified piracy under the penal code
but under a special law, Presidential Decree No. 532 which penalizes piracy in Philippine waters.
Verily, Presidential Decree No. 532 should be applied with more force here since its purpose is
precisely to discourage and prevent piracy in Philippine waters (People v. Catantan, 278 SCRA
761 [1997]). It is likewise, well-settled that regardless of the law penalizing the same, piracy is a
reprehensible crime against the whole world (People v. Lol-lo, 43 Phil. 19 [1922]).

However, does this constitute a violation of accused-appellant's constitutional right to be

informed of the nature and cause of the accusation against him on the ground that he was
convicted as an accomplice under Section 4 of Presidential Decree No. 532 even though he was
charged as a principal by direct participation under Section 2 of said law?

The trial court found that there was insufficiency of evidence showing:

(a) that accused-appellant Hiong directly participated in the attack and seizure of "M/T
Tabangao" and its cargo; (b) that he induced Emilio Changco and his group in the attack and
seizure of "M/T Tabangao" and its cargo; (c) and that his act was indispensable in the attack on
and seizure of "M/T Tabangao" and its cargo. Nevertheless, the trial court found that accused-
appellant Hiong's participation was indisputably one which aided or abetted Emilio Changco
and his band of pirates in the disposition of the stolen cargo under Section 4 of Presidential
Decree No. 532 which provides:

SECTION 4. Aiding pirates or highway robbers/brigands or abetting piracy or highway

robbery brigandage. — Any person who knowingly and in any manner aids or protects
pirates or highway robbers/brigands, such as giving them information about the
movement of police or other peace officers of the government, or acquires or receives
property taken by such pirates or brigands or in any manner derives any benefit
therefrom; or any person who directly or indirectly abets the commission of piracy or
highway robbery or brigandage, shall be considered as an accomplice of the principal
officers and be punished in accordance with Rules prescribed by the Revised Penal Code.

It shall be presumed that any person who does any of the acts provided in this Section
has performed them knowingly, unless the contrary is proven.

The ruling of the trial court is within well-settled jurisprudence that if there is lack of complete
evidence of conspiracy, the liability is that of an accomplice and not as principal (People v.
Tolentino, 40 SCRA 514 [1971]). Any doubt as to the participation of an individual in the
commission of the crime is always resolved in favor of lesser responsibility (People v. Corbes,
270 SCRA 465 [1997]; People vs. Elfano, Jr., 125 SCRA 792 [1983]; People v. Pastores, 40 SCRA
498 [1971]).

Emphasis must also be placed on the last paragraph of Section 4 of Presidential Decree No. 532
which presumes that any person who does any of the acts provided in said section has
performed them knowingly, unless the contrary is proven. In the case at bar, accused-appellant
Hiong had failed to overcome the legal presumption that he knowingly abetted or aided in the
commission of piracy, received property taken by such pirates and derived benefit therefrom.
The record discloses that accused-appellant Hiong aided the pirates in disposing of the stolen
cargo by personally directing its transfer from "M/T Galilee" to "M/T Navi Pride". He profited
therefrom by buying the hijacked cargo for Navi Marine Services, Pte., Ltd. (tsn, June 3, 1992,
pp. 15-23). He even tested the quality and verified the quantity of the petroleum products,
connived with Navi Marine Services personnel in falsifying the General Declarations and Crew
List to ensure that the illegal transfer went through, undetected by Singapore Port Authorities,
and supplied, the pirates with food, beer, and other provisions for their maintenance while in
port (tsn, June 3, 1992, pp. 133-134).

We believe that the falsification of the General Declaration (Arrival and Departure) and Crew
List was accomplished and utilized by accused-appellant Hiong and Navi Marine Services
personnel in the execution of their scheme to avert detection by Singapore Port Authorities.
Hence, had accused-appellant Hiong not falsified said entries, the Singapore Port Authorities
could have easily discovered the illegal activities that took place and this would have resulted in
his arrest and prosecution in Singapore. Moreover, the transfer of the stolen cargo from "M/T
Galilee" to "Navi Pride" could not have been effected.

We completely uphold the factual findings of the trial court showing in detail accused-appellant
Hiong's role in the disposition of the pirated goods summarized as follows: that on March 27,
1991, Hiong with Captain Biddy Santos boarded the "Navi Pride," one of the vessels of the Navi
Marine, to rendezvous with the "M/T Galilee"; that the firm submitted the crew list of the
vessel (Exhibit "8-CSH", Record) to the port authorities, excluding the name of Hiong; that the
"General Declaration" (for departure) of the "Navi Pride" for its voyage off port of Singapore
(Exhibits "HH" and "8-A CSH", Record) falsely stated that the vessel was scheduled to depart at
2200 (10 o'clock in the evening), that there were no passengers on board, and the purpose of
the voyage was for "cargo operation" and that the vessel was to unload and transfer 1,900 tons
of cargo; that after the transfer of the fuel from "M/T Galilee" with Emilio Changco a. k. a.
Captain Bobby a. k. a. Roberto Castillo at the helm, the surveyor prepared the "Quantity
Certificate" (Exhibit "11-C CSH, Record) stating that the cargo transferred to the "Navi Pride"
was 2,406 gross cubic meters; that although Hiong was not the Master of the vessel, he affixed
his signature on the "Certificate" above the word "Master" (Exhibit "11-C-2 CSH", Record); that
he then paid P150,000.00 but did not require any receipt for the amount; that Emilio Changco
also did not issue one; and that in the requisite "General Declaration" upon its arrival at
Singapore on March 29, 1991, at 7 o'clock in the evening, (Exhibits "JJ" and "13-A CSH",
Record), it was made to falsely appear that the "Navi Pride" unloaded 1,700 tons of cargo on
the high seas during said voyage when in fact it acquired from the "M/T Galilee" 2,000 metric
tons of diesel oil. The second transfer transpired with the same irregularities as discussed
above. It was likewise supervised by accused-appellant Cheong from his end while Emilio
Changco supervised the transfer from his end.

Accused-appellant Hiong maintains that he was merely following the orders of his superiors and
that he has no knowledge of the illegality of the source of the cargo.
First and foremost, accused-appellant Hiong cannot deny knowledge of the source and nature
of the cargo since he himself received the same from "M/T Tabangao". Second, considering that
he is a highly educated mariner, he should have avoided any participation in the cargo transfer
given the very suspicious circumstances under which it was acquired. He failed to show a single
piece of deed or bill of sale or even a purchase order or any contract of sale for the purchase by
the firm; he never bothered to ask for and scrutinize the papers and documentation relative to
the "M/T Galilee"; he did not even verify the identity of Captain Robert Castillo whom he met
for the first time nor did he check the source of the cargo; he knew that the transfer took place
66 nautical miles off Singapore in the dead of the night which a marine vessel of his firm did not
ordinarily do; it was also the first time Navi Marine transacted with Paul Gan involving a large
sum of money without any receipt issued therefor; he was not even aware if Paul Gan was a
Singaporean national and thus safe to deal with. It should also be noted that the value of the
cargo was P40,426,793.87 or roughly more than US$1,000,000.00 (computed at P30.00 to $1,
the exchange rate at that time). Manifestly, the cargo was sold for less than one-half of its
value. Accused-appellant Hiong should have been aware of this irregularity. Nobody in his right
mind would go to far away Singapore, spend much time and money for transportation — only
to sell at the aforestated price if it were legitimate sale involved. This, in addition to the act of
falsifying records, clearly shows that accused-appellant Hiong was well aware that the cargo
that his firm was acquiring was purloined.

Lastly, it cannot be correctly said that accused-appellant was "merely following the orders of his
superiors." An individual is justified in performing an act in obedience to an order issued by a
superior if such order, is for some lawful purpose and that the means used by the subordinate
to carry out said order is lawful (Reyes, Revised Penal Code, Vol. 1, 1981 ed., p. 212). Notably,
the alleged order of Hiong's superior Chua Kim Leng Timothy, is a patent violation not only of
Philippine, but of international law. Such violation was committed on board a Philippine-
operated vessel. Moreover, the means used by Hiong in carrying out said order was equally
unlawful. He misled port and immigration authorities, falsified records, using a mere clerk,
Frankie Loh, to consummate said acts. During the trial, Hiong presented himself, and the trial
court was convinced, that he was an intelligent and articulate Port Captain. These
circumstances show that he must have realized the nature and the implications of the order of
Chua Kim Leng Timothy. Thereafter, he could have refused to follow orders to conclude the
deal and to effect the transfer of the cargo to the "Navi Pride." He did not do so, for which
reason, he must now suffer the consequences of his actions.

WHEREFORE, finding the conviction of accused-appellants justified by the evidence on record,

the Court hereby AFFIRMS the judgment of the trial court in toto.

SO ORDERED.
G.R. No. 163267               May 5, 2010
TEOFILO EVANGELISTA, Petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
DEL CASTILLO, J.:
To be guilty of the crime of illegal possession of firearms and ammunition, one does not have to
be in actual physical possession thereof. The law does not punish physical possession alone but
possession in general, which includes constructive possession or the subjection of the thing to
the owner’s control.1
This Petition for Review on Certiorari2 assails the October 15, 2003 Decision3 of the Court of
Appeals (CA) in CA-G.R. CR No. 21805 which affirmed the January 23, 1998 Decision 4 of the
Regional Trial Court (RTC) of Pasay City, Branch 109 convicting petitioner Teofilo Evangelista for
violation of Section 1, Presidential Decree (PD) No. 1866, 5 as amended, as well as the April 16,
2004 Resolution which denied petitioner’s Motion for Reconsideration.
Factual Antecedents
In an Information6 dated January 31, 1996, petitioner was charged with violation of Section 1 of
PD 1866 allegedly committed as follows:
That on or about the 30th day of January 1996, at the Ninoy Aquino International Airport, Pasay
City, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused,
did, then and there, wilfully, unlawfully and feloniously have in his possession, custody and
control the following items:
1. One (1) Unit 9mm Jericho Pistol, Israel with SN F-36283 with one (1) magazine;
2. One (1) Unit Mini-Uzi 9mm Israel Submachine gun with SN 931864 with two (2)
magazines;
3. Nineteen (19) 9mm bullets.
without the corresponding permit or license from competent authority.
CONTRARY TO LAW.
After posting his bail, petitioner filed on February 14, 1996 an Urgent Motion for (a) Suspension
of Proceedings and (b) the Holding of A Preliminary Investigation. 7 The RTC granted the motion
and, accordingly, the State Prosecutor conducted the preliminary investigation.
In a Resolution8 dated March 6, 1996, the State Prosecutor found no probable cause to indict
petitioner and thus recommended the reversal of the resolution finding probable cause and the
dismissal of the complaint. Thereafter, a Motion to Withdraw Information 9 was filed but it was
denied by the trial court in an Order10 dated March 26, 1996, viz:
Acting on the "Motion to Withdraw Information" filed by State Prosecutor Aida Macapagal on
the ground that [there exists] no probable cause to indict the accused, the Information having
been already filed in Court, the matter should be left to the discretion of the Court to assess the
evidence, hence, for lack of merit, the same is hereby denied. Let the arraignment of the
accused proceed.
When arraigned on March 26, 1996, petitioner pleaded not guilty to the charge. Thereafter,
trial ensued.
Version of the Prosecution
In the morning of January 30, 1996, Maximo Acierto, Jr. (Acierto), a Customs Police assigned at
the Ninoy Aquino International Airport (NAIA) District Command, was informed by his superior
that a certain passenger of Philippine Airlines (PAL) Flight No. 657 would be arriving from Dubai
bringing with him firearms and ammunitions. Shortly after lunch, Acierto, together with Agents
Cuymo and Fuentabella, proceeded to the tube area where they were met by a crewmember
who introduced to them herein petitioner. Acierto asked petitioner if he brought firearms with
him and the latter answered in the affirmative adding that the same were bought in Angola.
Thereupon, Acierto was summoned to the cockpit by the pilot, Capt. Edwin Nadurata (Capt.
Nadurata), where the firearms and ammunitions were turned over to him. Petitioner was then
escorted to the arrival area to get his luggage and thereafter proceeded to the examination
room where the luggage was examined and petitioner was investigated. In open court, Acierto
identified the firearms and ammunitions.
During the investigation, petitioner admitted before Special Agent Apolonio Bustos (Bustos)
that he bought the subject items in Angola but the same were confiscated by the Dubai
authorities, which turned over the same to a PAL personnel in Dubai. Upon inquiry, the
Firearms and Explosive Office (FEO) in Camp Crame certified that petitioner is neither registered
with said office11 nor licensed holder of aforesaid firearms and ammunitions. Bustos likewise
verified from the Bureau of Customs, but his effort yielded no record to show that the firearms
were legally purchased. Among the documents Bustos had gathered during his investigation
were the Arrival Endorsement Form12 and Customs Declaration Form.13 A referral letter14 was
prepared endorsing the matter to the Department of Justice. Bustos admitted that petitioner
was not assisted by counsel when the latter admitted that he bought the firearms in Angola.
SPO4 Federico Bondoc, Jr. (SPO4 Bondoc), a member of the Philippine National Police (PNP) and
representative of the FEO, upon verification, found that petitioner is not a licensed/registered
firearm holder. His office issued a certification 15 to that effect which he identified in court as
Exhibit "A".
After the prosecution rested its case, petitioner, with leave of court, filed his Demurrer to
Evidence,16 the resolution of which was deferred pending submission of petitioner’s evidence. 17
Version of the Defense
The defense presented Capt. Nadurata whose brief but candid and straightforward narration of
the event was synthesized by the CA as follows:
x x x On January 30, 1996, he was approached by the PAL Station Manager in Dubai, who
informed him that a Filipino contract worker from Angola who is listed as a passenger of PAL
flight from Dubai to Manila, was being detained as he was found in possession of firearms; that
if said passenger will not be able to board the airplane, he would be imprisoned in Dubai; and
that the Arabs will only release the passenger if the Captain of PAL would accept custody of the
passenger [herein petitioner] and the firearms. Capt. Nadurata agreed to take custody of the
firearms and the passenger, herein appellant, so that the latter could leave Dubai. The firearms
were deposited by the Arabs in the cockpit of the airplane and allowed the appellant to board
the airplane. Upon arrival in Manila, Capt. Nadurata surrendered the firearms to the airport
authorities.
Meanwhile, in view of the unavailability of the defense’s intended witness, Nilo Umayaw
(Umayaw), the PAL Station Manager in Dubai, the prosecution and the defense agreed and
stipulated on the following points:
1. That PAL Station Manager Mr. Nilo Umayaw was told by a Dubai Police that firearms
and ammunitions were found in the luggage of a Filipino passenger coming from Angola
going to the Philippines;
2. That he was the one who turned over the subject firearms to Captain Edwin
Nadurata, the Pilot in command of PAL Flight 657;
3. That the subject firearms [were] turned over at Dubai;
4. That the said firearms and ammunitions were confiscated from the accused Teofilo
Evangelista and the same [were] given to the PAL Station Manager who in turn
submitted [them] to the PAL Pilot, Capt. Edwin Nadurata who has already testified;
5. That [these are] the same firearms involved in this case.18
Ruling of the Regional Trial Court
On February 4, 1997, the RTC rendered its Decision, the dispositive portion of which reads:
In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond
reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms
and Ammunitions: (One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two
(2) magazines and nineteen (19) 9mm bullets) and hereby sentences him to imprisonment of
Seventeen (17) Years and Four (4) Months to Twenty (20) Years.
The above-mentioned firearms are hereby ordered forfeited in favor of the government and is
ordered transmitted to the National Bureau of Investigation, Manila for proper disposition.
SO ORDERED.19
On April 4, 1997, petitioner filed a Motion for New Trial 20 which the RTC granted.21 Forthwith,
petitioner took the witness stand narrating his own version of the incident as follows:
On January 28, 1996, he was at Dubai International Airport waiting for his flight to the
Philippines. He came from Luwanda, Angola where he was employed as a seaman at Oil
International Limited. While at the airport in Dubai, Arab policemen suddenly accosted him and
brought him to their headquarters where he saw guns on top of a table. The Arabs maltreated
him and forced him to admit ownership of the guns. At this point, PAL Station Manager
Umayaw came and talked to the policemen in Arabian dialect. Umayaw told him that he will
only be released if he admits ownership of the guns. When he denied ownership of the same,
Umayaw reiterated that he (petitioner) will be released only if he will bring the guns with him
to the Philippines. He declined and insisted that the guns are not his. Upon the request of
Umayaw, petitioner was brought to the Duty Free area for his flight going to the Philippines.
When he was inside the plane, he saw the Arab policemen handing the guns to the pilot. Upon
arrival at the NAIA, he was arrested by the Customs police and brought to the arrival area
where his passport was stamped and he was made to sign a Customs Declaration Form without
reading its contents. Thereafter, he was brought to a room at the ground floor of the NAIA
where he was investigated. During the investigation, he was not represented by counsel and
was forced to accept ownership of the guns. He denied ownership of the guns and the fact that
he admitted having bought the same in Angola.
Ruling of the Regional Trial Court
After new trial, the RTC still found petitioner liable for the offense charged but modified the
penalty of imprisonment. The dispositive portion of the Decision dated January 23, 1998 reads:
In view of all the foregoing, the Court finds accused TEOFILO E. EVANGELISTA guilty beyond
reasonable doubt for violation of Sec. 1, P.D. 1866 as amended (Illegal Possession of Firearms
and Ammunitions: One (1) Unit 9mm Jerico Pistol, Israel with SN F-36283 with one (1)
magazine; One (1) Unit Mini-Uzi 9mm Israel submachine gun with SN-931864 with two (2)
magazines and nineteen (19) 9mm bullets and hereby sentences him to imprisonment of Six (6)
Years and One (1) Day to Eight (8) Years and a fine of ₱30,000.00.
The above-mentioned firearms are hereby ordered forfeited in favor of the government and
[are] ordered transmitted to the National Bureau of Investigation, Manila for proper
disposition.
SO ORDERED.22
Ruling of the Court of Appeals
On appeal, the CA affirmed the findings of the trial court in its Decision dated October 15, 2003.
It ruled that the stipulations during the trial are binding on petitioner. As regards possession of
subject firearms, the appellate court ruled that Capt. Nadurata’s custody during the flight from
Dubai to Manila was for and on behalf of petitioner. Thus, there was constructive possession.
Petitioner moved for reconsideration23 but it was denied by the appellate court in its April 16,
2004 Resolution.
Hence, this petition.
Issues
Petitioner assigns the following errors:
a. The Court of Appeals gravely erred in not acquitting Evangelista from the charge of
Presidential Decree No. 1866, Illegal Possession of Firearms.
b. The Court of Appeals gravely erred in not holding that Evangelista was never in
possession of any firearm or ammunition within Philippine jurisdiction and he therefore
could not have committed the crime charged against him.
c. The Court of Appeals gravely erred in holding that Evangelista committed a continuing
crime.
d. The Court of Appeals gravely erred in disregarding the results of the preliminary
investigation.24
We find the appeal devoid of merit.
At the outset, we emphasize that under Rule 45 of the Rules of Court, a petition for review
on certiorari shall only raise questions of law considering that the findings of fact of the CA are,
as a general rule, conclusive upon and binding on the Supreme Court. 25 In this recourse,
petitioner indulges us to calibrate once again the evidence adduced by the parties and to re-
evaluate the credibility of their witnesses. On this ground alone, the instant petition deserves to
be denied outright. However, as the liberty of petitioner is at stake and following the principle
that an appeal in a criminal case throws the whole case wide open for review, we are inclined
to delve into the merits of the present petition.
In his bid for acquittal, petitioner argues that he could not have committed the crime imputed
against him for he was never in custody and possession of any firearm or ammunition when he
arrived in the Philippines. Thus, the conclusion of the appellate court that he was in
constructive possession of the subject firearms and ammunitions is erroneous.
We are not persuaded. As correctly found by the CA:
Appellant’s argument that he was never found in possession of the subject firearms and
ammunitions within Philippine jurisdiction is specious. It is worthy to note that at the hearing of
the case before the court a quo on October 8, 1996, the defense counsel stipulated that the
subject firearms and ammunitions were confiscated from appellant and the same were given to
PAL Station Manager Nilo Umayaw who, in turn, turned over the same to Capt. Edwin
Nadurata. Such stipulation of fact is binding on appellant, for the acts of a lawyer in the defense
of a case are the acts of his client. Granting that Nilo Umayaw was merely told by the Dubai
authorities that the firearms and ammunitions were found in the luggage of appellant and that
Umayaw had no personal knowledge thereof, however, appellant’s signature on the Customs
Declaration Form, which contains the entry "2 PISTOL guns SENT SURRENDER TO PHILIPPINE
AIRLINE," proves that he was the one who brought the guns to Manila. While appellant claims
that he signed the Customs Declaration Form without reading it because of his excitement,
however, he does not claim that he was coerced or persuaded in affixing his signature thereon.
The preparation of the Customs Declaration Form is a requirement for all arriving passengers in
an international flight. Moreover, it cannot be said that appellant had already been arrested
when he signed the Customs Declaration Form. He was merely escorted by Special Agent
Acierto to the arrival area of the NAIA. In fact, appellant admitted that it was only after he
signed the Customs Declaration Form that he was brought to the ground floor of NAIA for
investigation. Consequently, appellant was in constructive possession of the subject firearms.
As held in People v. Dela Rosa, the kind of possession punishable under PD 1866 is one where
the accused possessed a firearm either physically or constructively with animus possidendi or
intention to possess the same. Animus possidendi is a state of mind. As such, what goes on into
the mind of the accused, as his real intent, could be determined solely based on his prior and
coetaneous acts and the surrounding circumstances explaining how the subject firearm came to
his possession.
Appellant’s witness, Capt. Nadurata, the PAL pilot of Flight No. PR 657 from Dubai to Manila on
January 30, 1996, testified that he accepted custody of the firearms and of appellant in order
that the latter, who was being detained in Dubai for having been found in possession of
firearms, would be released from custody. In other words, Capt. Nadurata’s possession of the
firearm during the flight from Dubai to Manila was for and on behalf of appellant. 26
We find no cogent reason to deviate from the above findings, especially considering petitioner’s
admission during the clarificatory questioning by the trial court:
Court: So, it is clear now in the mind of the Court, that the firearms and ammunitions will also
be with you on your flight to Manila, is that correct?
A: Yes, your honor.
Court: [You] made mention of that condition, that the Dubai police agreed to release
you provided that you will bring the guns and ammunitions with you? Is that the
condition of the Dubai Police?
A: Yes, your honor.
 Court: The condition of his release was that he will have to bring the guns and
ammunitions to the Philippines and this arrangement was made by the PAL Supervisor
at Dubai and it was Mr. Umayaw the PAL Supervisor, who interceded in his behalf with
the Dubai Police for his flight in the Philippines.27
To us, this constitutes judicial admission of his possession of the subject firearms and
ammunitions. This admission, the veracity of which requires no further proof, may be
controverted only upon a clear showing that it was made through palpable mistake or that no
admission was made.28 No such controversion is extant on record.
Moreover, we cannot ignore the Customs Declaration Form wherein it appeared that petitioner
brought the firearms with him upon his arrival in the Philippines. While there was no showing
that he was forced to sign the form, petitioner can only come up with the excuse that he was
excited. Hardly can we accept such pretension.
We are likewise not swayed by petitioner’s contention that the lower court erroneously relied
on the Customs Declaration Form since it is not admissible in evidence because it was
accomplished without the benefit of counsel while he was under police custody.
The accomplishment of the Customs Declaration Form was not elicited through custodial
investigation. It is a customs requirement which petitioner had a clear obligation to comply. As
correctly observed by the CA, the preparation of the Customs Declaration Form is a
requirement for all arriving passengers in an international flight. Petitioner was among those
passengers. Compliance with the constitutional procedure on custodial investigation is,
therefore, not applicable in this case. Moreover, it is improbable that the customs police were
the ones who filled out the declaration form. As will be noted, it provides details that only
petitioner could have possibly known or supplied. Even assuming that there was prior
accomplishment of the form which contains incriminating details, petitioner could have easily
taken precautionary measures by not affixing his signature thereto. Or he could have registered
his objection thereto especially when no life threatening acts were being employed against him
upon his arrival in the country.
Obviously, it was not only the Customs Declaration Form from which the courts below based
their conclusion that petitioner was in constructive possession of subject firearms and
ammunitions. Emphasis was also given on the stipulations and admissions made during the
trial. These pieces of evidence are enough to show that he was the owner and possessor of
these items.
Petitioner contends that the trial court has no jurisdiction over the case filed against him. He
claims that his alleged possession of the subject firearms transpired while he was at the Dubai
Airport and his possession thereof has ceased when he left for the Philippines. He insists that
since Dubai is outside the territorial jurisdiction of the Philippines and his situation is not one of
the exceptions provided in Article 2 of the Revised Penal Code, our criminal laws are not
applicable. In short, he had not committed a crime within the Philippines.1avvphi1
Indeed it is fundamental that the place where the crime was committed determines not only
the venue of the action but is an essential element of jurisdiction. 29 In order for the courts to
acquire jurisdiction in criminal cases, the offense should have been committed or any one of its
essential ingredients should have taken place within the territorial jurisdiction of the court. If
the evidence adduced during the trial shows that the offense was committed somewhere else,
the court should dismiss the action for want of jurisdiction. 30
Contrary to the arguments put forward by petitioner, we entertain no doubt that the crime of
illegal possession of firearms and ammunition for which he was charged was committed in the
Philippines. The accomplishment by petitioner of the Customs Declaration Form upon his arrival
at the NAIA is very clear evidence that he was already in possession of the subject firearms in
the Philippines.
And more than mere possession, the prosecution was able to ascertain that he has no license or
authority to possess said firearms. It bears to stress that the essence of the crime penalized
under PD 1866, as amended, is primarily the accused’s lack of license to possess the firearm.
The fact of lack or absence of license constitutes an essential ingredient of the offense of illegal
possession of firearm. Since it has been shown that petitioner was already in the Philippines
when he was found in possession of the subject firearms and determined to be without any
authority to possess them, an essential ingredient of the offense, it is beyond reasonable doubt
that the crime was perpetrated and completed in no other place except the Philippines.
Moreover, the jurisdiction of a court over the criminal case is determined by the allegations in
the complaint or information. In this case, the information specifically and categorically alleged
that on or about January 30, 1996 petitioner was in possession, custody and control of the
subject firearms at the Ninoy Aquino International Airport, Pasay City, Philippines, certainly a
territory within the jurisdiction of the trial court.
In contrast, petitioner failed to establish by sufficient and competent evidence that the present
charge happened in Dubai. It may be well to recall that while in Dubai, petitioner, even in a
situation between life and death, firmly denied possession and ownership of the firearms.
Furthermore, there is no record of any criminal case having been filed against petitioner in
Dubai in connection with the discovered firearms. Since there is no pending criminal case when
he left Dubai, it stands to reason that there was no crime committed in Dubai. The age-old but
familiar rule that he who alleges must prove his allegation applies.31
Petitioner finally laments the trial court’s denial of the Motion to Withdraw Information filed by
the investigating prosecutor due to the latter’s finding of lack of probable cause to indict him.
He argues that such denial effectively deprived him of his substantive right to a preliminary
investigation.
Still, petitioner’s argument fails to persuade. There is nothing procedurally improper on the part
of the trial court in disregarding the result of the preliminary investigation it itself ordered.
Judicial action on the motion rests in the sound exercise of judicial discretion. In denying the
motion, the trial court just followed the jurisprudential rule laid down in Crespo v. Judge
Mogul32 that once a complaint or information is filed in court, any disposition of the case as to
its dismissal or the conviction or acquittal of the accused rests on the sound discretion of the
court. The court is not dutifully bound by such finding of the investigating prosecutor. In Solar
Team Entertainment, Inc v. Judge How33 we held:
It bears stressing that the court is however not bound to adopt the resolution of the Secretary
of Justice since the court is mandated to independently evaluate or assess the merits of the
case, and may either agree or disagree with the recommendation of the Secretary of Justice.
Reliance alone on the resolution of the Secretary of Justice would be an abdication of the trial
court’s duty and jurisdiction to determine prima facie case.
Consequently, petitioner has no valid basis to insist on the trial court to respect the result of the
preliminary investigation it ordered to be conducted.
In fine, we find no reason not to uphold petitioner’s conviction. The records substantiate the
RTC and CA’s finding that petitioner possessed, albeit constructively, the subject firearms and
ammunition when he arrived in the Philippines on January 30, 1996. Moreover, no significant
facts and circumstances were shown to have been overlooked or disregarded which if
considered would have altered the outcome of the case.
In the prosecution for the crime of illegal possession of firearm and ammunition, the Court has
reiterated the essential elements in People v. Eling34 to wit: (1) the existence of subject firearm;
and, (2) the fact that the accused who possessed or owned the same does not have the
corresponding license for it.
In the instant case, the prosecution proved beyond reasonable doubt the elements of the
crime. The existence of the subject firearms and the ammunition were established through the
testimony of Acierto. Their existence was likewise admitted by petitioner when he entered into
stipulation and through his subsequent judicial admission. Concerning petitioner’s lack of
authority to possess the firearms, SPO4 Bondoc, Jr. testified that upon verification, it was
ascertained that the name of petitioner does not appear in the list of registered firearm holders
or a registered owner thereof. As proof, he submitted a certification to that effect and
identified the same in court. The testimony of SPO4 Bondoc, Jr. or the certification from the
FEO would suffice to prove beyond reasonable doubt the second element.35
A final point. Republic Act (RA) No. 829436 took effect on June 6, 1997 or after the commission
of the crime on January 30, 1996. However, since it is advantageous to the petitioner, it should
be given retrospective application insofar as the penalty is concerned.
Section 1 of PD 1866, as amended by RA 8294 provides:
Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or
Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms or
Ammunition. x x x
The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(₱30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .
44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and
caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by
burst of two or three: Provided, however, That no other crime was committed by the person
arrested.
Prision mayor in its minimum period ranges from six years and one day to eight years. Hence,
the penalty imposed by the RTC as affirmed by the CA is proper.
WHEREFORE, the petition is DENIED. The assailed Decision of the Court of Appeals in CA-G.R.
CR No. 21805 affirming the January 23, 1998 Decision of the Regional Trial Court of Pasay City,
Branch 109 dated January 23, 1998, convicting petitioner Teofilo Evangelista of violation of
Section 1 of Presidential Decree No. 1866, as amended, and sentencing him to suffer the
penalty of imprisonment of six years and one day to eight years and to pay a fine of ₱30,000.00
is AFFIRMED.
SO ORDERED.
MARIANO C. DEL CASTILLO
Associate Justice
WE CONCUR:
ANTONIO T. CARPIO
Associate Justice
Chairperson

ARTURO D. BRION ROBERTO A. ABAD

Associate Justice Associate Justice
JOSE PORTUGAL PEREZ
Associate Justice
ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation before the
case was assigned to the writer of the opinion of the Court’s Division.
ANTONIO T. CARPIO
Associate Justice
Chairperson, Second Division
CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division Chairperson’s
attestation, it is hereby certified that the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the opinion of the Court’s Division.
REYNATO S. PUNO
Chief Justice

[G.R. NO. 181494 : March 17, 2009]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. MONALYN CERVANTES y SOLAR, Accused-
Appellant.
DECISION
VELASCO, JR., J.:
This is an appeal from the Decision dated July 19, 2007 of the Court of Appeals (CA) in CA-G.R.
CR-H.C. No. 00476 which affirmed the April 23, 2004 Decision in Criminal Case No. 00-181929 of
the Regional Trial Court (RTC), Branch 53 in Manila. The RTC found accused-appellant Monalyn
Cervantes guilty beyond reasonable doubt of violation of Section 15, Article III of Republic Act
No. (RA) 6425 or the Dangerous Drugs Act of 1972, as amended.
The records show the following facts:
In an Information dated April 7, 2000, accused-appellant and three others were charged with
violation of Sec. 15, Art. III of RA 6425 (selling or distributing a regulated drug), allegedly
committed as follows:
That, on or about April 5, 2000, in the City of Manila, Philippines, and within the jurisdiction of
this Honorable Court, accused ISIDRO ARGUSON y ARENDELA, @ Tisoy, MONALYN [CERVANTES]
y SOLAR @ Mona, WILSON DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard, conspiring,
confederating and mutually helping one another, acting in common accord, did then and there,
willfully, unlawfully and feloniously, for the amount of FIVE HUNDRED THOUSAND
(P500,000.00) PESOS, Philippine Currency, sell, deliver and give away to a poseur-buyer, FOUR
HUNDRED SEVENTY THREE POINT SEVENTY SIX (473.76) GRAMS OF METHAMPHETAMINE
[HYDROCHLORIDE], commonly known as shabu, a regulated drug, without authority of law or
the corresponding license therefor.
CONTRARY TO LAW.1
Accused-appellant and her co-accused pleaded not guilty to the charge. In the ensuing trial, the
prosecution presented in evidence the oral testimonies of William Todavia, PO3 Reynaldo
Ramos of the Philippine National Police Regional Office IV (PNP R-IV), and P/Sr. Inspector Lorna
Tria, a forensic chemical officer of the same regional office.
The People's version of the incident, as summarized by the CA in the decision now on appeal, is
as follows:
On April 5, 2000, the Regional Special Operations Group IV (RSOG-IV), based at Camp Vicente
Lim in Calamba, Laguna, received a tip from a deep penetration agent (DPA) about a group of
drug traffickers led by Isidro Arguson operating in Cavite. Acting on this bit of information, a
team led by SPO2 Geronimo Pastrana, PO3 Ramos, and PO2 Emerson Balosbalos arranged a
buy-bust operation to be conducted at Arguson's rest house in Barangay Lambingan, Tanza,
Cavite.2 Upon arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as poseur-
buyers, were introduced by the DPA to Arguson as the buyers of PhP 500,000 worth of shabu,
simultaneously showing him a bundle of money. Since Arguson did not have enough supply
of shabu in the premises, he instructed the would-be-buyers to follow him to Pasay City. For the
purpose, he hired a vehicle owned by Todavia.
At about three o'clock in the afternoon of that day, in front of the McDonald's branch in P.
Ocampo St., Pasay City,3 Arguson instructed the would-be-buyers to wait for someone who will
come out from the nearby Estrella St. Very much later, accused-appellant emerged from
Estrella St. and approached PO3 Ramos to check if he still had the money. After being shown
the money bundle, accused-appellant left, only to return a few minutes later this time with
Arguson, Wilson Del Monte, who was holding a black plastic bag, and Richard Requiz. Arguson
then took from Del Monte the bag, later found to contain 473.76 grams of shabu packed in six
small self-sealing transparent bags, and handed it to PO2 Balosbalos, who in turn gave him the
bundle of boodle money. Finally, PO3 Ramos gave the pre-arranged signal to indicate the
consummation of the drug deal and introduced himself as policeman. Accused-appellant and
her scampering companions were later arrested and brought to and booked at Camp Vicente
Lim.
The black plastic bag containing the six small self-sealing bags of white crystalline substance
was likewise taken to Camp Vicente Lim where PO3 Ramos prepared the booking sheets and
arrest reports and the request for a qualitative analysis of the seized items. Regional Crime
Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then conducted the standard
physical and chemical examinations on the specimen referred to her.
On April 6, 2000, C/I Geronimo prepared and completed Chemistry Report No. D-115800 on the
crystalline substance. Per her report, the substance tested positive for methamphetamine
hydrochloride or shabu.
Apart from the witnesses' affidavits and other documents, the prosecution, in the hearing of
March 4, 2002, offered in evidence the following exhibits, 4 inclusive of its sub markings, which,
as may be expected, were objected to by the defense: (a) Exhibit "B" - Chemistry Report No. D-
115800 prepared by C/I Geronimo; (b) Exhibit "C" - Memorandum of RSOG-IV dated April 5,
2000 to the Chief, Laboratory Service, requesting for qualitative analysis of the contents of the
six transparent plastic bags; (c) Exhibits "D" and "D-1" to "D-6" - Black plastic bag with markings;
and six (6) self-sealing transparent bags allegedly containing the confiscated shabu; and
(d) Exhibit "F" - Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3
Ramos as witnesses.
The CA decision likewise summarized the defense's account of what purportedly transpired, to
wit:
Accused-appellant testified that after she did laundry works at her house in Estrella Street near
F.B. Harrison on April 4, 2000, her youngest child asked her to go to [McDonald's], Vito Cruz
branch, to buy ice cream. When they arrived thereat at about 4:30 in the afternoon, there was
a commotion going on in front of the restaurant. She then saw a woman who alighted from a
nearby van and pointed her out to her companions, one of whom [was] an old man boarded
her inside the van causing her to lose hold of her child. Thereafter, two (2) younger male
persons, whom she later came to know as DEL MONTE and REQUIZ, were also boarded into the
same van. They were taken to a cemetery where another vehicle came and took them to Camp
Vicente Lim, where she allegedly met ARGUSON for the first time.
On the other hand, accused DEL MONTE testified that he was a parking boy around Vito Cruz
and that on the day in question, while he was watching a vehicle near [McDonald's], Vito Cruz
branch, a commotion happened near his post. As he moved backward from where he stood, he
was suddenly approached by a policeman who arrested him and boarded him inside a vehicle
together with CERVANTES and REQUIZ, whom he did not know prior to that incident.
For his part, accused REQUIZ testified that on the date and time in question, he was riding a
borrowed bicycle on his way to the Cultural Center, passing by F.B. Harrison St., when he
bumped a parked van, wherefrom a man alighted and cursed him, saying "pulis ako wag kang
aalis dyan[!] " The man left and when he returned, accused CERVANTES was with him.
Thereafter, he was boarded into the van together with the other accused. 5
While not stated in the CA decision, Del Monte testified, like accused-appellant, that he was
taken to a cemetery somewhere in Cavite where the arresting officers lingered for an hour
before bringing him to Camp Vicente Lim.6 These testimonies remained uncontroverted.
Arguson died during the course of the trial resulting in the dismissal of the case against him. 7
On April 23, 2004, the RTC rendered judgment acquitting Del Monte and Requiz but finding
accused-appellant guilty as charged and meting upon her the penalty of reclusion perpetua.
The fallo of the RTC Decision reads:
WHEREFORE, in view of the foregoing, judgment is hereby rendered:
1. Finding accused MONALYN CERVANTES Y SOLAR GUILTY beyond reasonable doubt of
violation of Sec. 15, Article III, of Republic Act No. 6425 as amended, and is sentenced
to Reclusion Perpetua and to pay a fine in the amount of Php500,000.00; andcralawlibrary
2. Finding the prosecution's evidence insufficient to prove the guilt of accused WILSON DEL
MONTE and RICHARD REQUIZ beyond reasonable doubt, and who are hereby ACQUITTED.
SO ORDERED.8
On May 18, 2004, accused-appellant filed a Notice of Appeal, pursuant to which the RTC
forwarded the records of the case to this Court.
Conformably with People v. Mateo,9 the Court directed the transfer of the case to the CA where
it was docketed as CA-G.R. CR-H.C. No. 00476. Before the appellate court, accused-appellant
urged her acquittal on the ground of "insufficiency of evidence," particularly stating that the
"forensic chemist who actually conducted the laboratory examination on the specimens
allegedly recovered from the accused was not presented in court x x x [and] hence, there was
no clear identification of the contents of the confiscated sachets." 10
By its Decision11 dated July 19, 2007, the CA, finding the elements necessary for the prosecution
of illegal sale of drugs12 to have sufficiently been satisfied and the identification of accused-
appellant having been established, affirmed her conviction.
The CA rejected accused-appellant's lament about one Inspector Tria testifying on the
chemistry report she did not prepare. As the appellate court stressed, C/I Geronimo's forensic
report "carries the presumption of regularity in the performance of official functions [and] the
entries thereon x x x are prima facie evidence of the facts therein stated." The CA added the
observation that absent any evidence overturning the presumption of regularity in the
performance of official functions, the probative value and admissibility of the forensic report
prepared by C/I Geronimo, who had resigned from the service, must be upheld even if she did
not personally testify in court.
On August 17, 2007, accused-appellant filed a Notice of Appeal of the CA affirmatory decision.
On March 24, 2008, this Court required the parties to submit supplemental briefs if they so
desired. The parties manifested their willingness to submit the case on the basis of the records
already submitted, thus veritably reiterating their principal arguments raised in the CA, which
on the part of accused-appellant would be:
THE [CA] GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE
CHARGED DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION.
For its part, the People, thru the Office of the Solicitor General, counters that the prosecution
has established that the buy-bust transaction took place, has identified accused-appellant and
her complicity in Arguson's illegal trade, and has presented the corpus delicti, as evidence.
The Court's Ruling
After a circumspect study, the Court resolves to acquit accused-appellant, considering certain
circumstances engendering reasonable doubt as to her guilt.
We start off with the most basic, the testimony of the prosecution's principal witness, PO3
Ramos, who identified accused-appellant and described her role in the conspiracy to sell shabu.
In the witness box, PO3 testified that, after being told by Arguson to wait for someone who will
come out from the street whence Arguson would enter, accused-appellant emerged from said
street, checked on the purchase money, asked the operatives to wait, and later re-appeared.
What happened next is captured by the following answers of PO3 Ramos to the prosecutor's
questions:
Q: What did you see when Cervantes already returned? A: When Monalyn return the one
holding the plastic bag was Wilson, sir.
Q: Wilson? A: Yes, sir, together with Richard, Wilson, Arguson, they were four (4).
Atty. Cruz: Your honor, may we move to strike that out x x x.
Fiscal Formoso: That's part of the answer x x x now, when all these accused here return with
Monalyn Cervantes, what happen[ed]?cralawred
A: Arguson took the plastic bag from Wilson, sir and handed it to Balosbalos, Balosbalos gave
Arguson the boodle money while I flash the signal x x x then we apprehended them. 13
As may be noted, PO3 Ramos categorically stated that Del Monte was among the four who
emerged with Arguson from a street. Without hesitation, PO3 Ramos pointed to Del Monte as
the one holding the plastic bag allegedly containing the prohibited substance until Arguson took
it from him and handed it over to PO2 Balosbalos. There is no suggestion that accused-
appellant, while at the crime scene, ever handled the merchandise or its container. Yet, the trial
court acquitted Requiz and Del Monte, but convicted accused-appellant, stating: "Clearly,
accused Monalyn Cervantes' complicity with accused Isidro Arguson in the sale of shabu has
been established by the testimony of PO3 Ramos."14 But two paragraphs later, the RTC went on
to write:
x x x While PO3 Ramos testified that the bag was initially held by accused Del Monte and then
taken from him by accused Arguson, there is no other evidence which can support the charge
of conspiracy with Arguson and Cervantes x x x. The court does not find the evidence sufficient
to pass the test of moral certainty to find accused Del Monte liable as charged. Even if PO3
Ramos saw him to have held the bag for Arguson, it could have been possible that he was
merely asked by Cervantes or Arguson to carry the bag.15
Before us then is a situation where two personsaccused-appellant, a laundry woman; and Del
Monte, a car park boy, in the company of the ostensible pusher, Arguson, during the actual buy
bust are being indicted, on the basis alone of the testimony of a witness, with confederating
with each and several others to sell shabu. The overt acts performed by accused-appellant, as
indicia of conspiracy, consisted of allegedly verifying whether the poseur-buyer still had the
purchase money, disappearing from the scene and then coming back with the principal player.
On the other hand, Del Monte came accompanying Arguson carrying the drug-containing plastic
bag no less. As between the two acts performed, carrying the bag would relatively have the
more serious implication being in itself a punishable act of possession of regulated drugs. Both
offered the defenses of denial and instigation, each testifying that they just happened to be
near or passing by McDonald's at about 4:30 in the afternoon of April 4, 2000 when they were
apprehended. But the trial court, in its observation that "it could have been possible that [Del
Monte] was merely asked by x x x Arguson to carry the bag," extended to Del Monte the
"benefit of the doubt," a benevolence denied to accused-appellant without so much of an
acceptable explanation. Any reasonable mind might ask: Why the contrasting treatment? Why
consider PO3 Ramos as a highly credible eyewitness as against accused-appellant, but an
unreliable one as against Del Monte, when both accused are complete strangers to the
policeman?cralawred
To paraphrase an unyielding rule, if the inculpatory testimony is capable of two or more
explanations, one consistent with the innocence of the accused persons and the other
consistent with their guilt, then the evidence does not fulfill the test of moral certainty and is
not sufficient to support a conviction.16
But even if we were to cast aside the foregoing equipoise rule, a reversal of the appealed
decision is indicated on another but more compelling ground. We refer to the postulate that
the prosecution, having failed to positively and convincingly prove the identity of the seized
regulated substance, is deemed to have also failed to prove beyond reasonable doubt accused-
appellant's guilt. We shall explain.
In every prosecution for illegal sale of dangerous drug, what is crucial is the identity of the
buyer and seller, the object and its consideration, the delivery of the thing sold, and the
payment for it. Implicit in these cases is first and foremost the identity and existence, coupled
with the presentation to the court of the traded prohibited substance, this object evidence
being an integral part of the corpus17 delicti18 of the crime of possession or selling of
regulated/prohibited drug.19 There can be no such crime when nagging doubts persist on
whether the specimen submitted for examination and presented in court was what was
recovered from, or sold by, the accused.20 Essential, therefore, in appropriate cases is that the
identity of the prohibited drug be established with moral certainty. This means that on top of
the key elements of possession or sale, the fact that the substance illegally possessed and sold
in the first place is the same substance offered in court as exhibit must likewise be established
with the same degree of certitude as that needed to sustain a guilty verdict. And as we stressed
in Malillin v. People, the "chain of custody requirement performs this function in that it ensures
that unnecessary doubts concerning the identity of the evidence are removed." 21 So it is that in
a slew of cases the Court has considered the prosecution's failure to adequately prove that the
specimen submitted for laboratory examination was the same one supposedly seized from the
offending seller or possessor as ground for acquittal.22
Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002, or the "Guidelines on
the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential
Chemicals, and Laboratory Equipment," defines "chain of custody," thusly:
"Chain of Custody" means the duly recorded authorized movements and custody of seized
drugs or controlled chemicals x x x from the time of seizure/confiscation to receipt in the
forensic laboratory to safekeeping to presentation in court for destruction. Such record of
movements and custody of seized item shall include the identity and signature of the person
who held temporary custody of the seized item, the date and time when such transfer of
custody [was] made in the course of safekeeping and use in court as evidence, and the final
disposition.23
As a mode of authenticating evidence, the chain of custody rule requires that the admission of
an exhibit be preceded by evidence sufficient to support a finding that the matter in question is
what the proponent claims it to be. In context, this would ideally include testimony about every
link in the chain, from the seizure of the prohibited drug up to the time it is offered into
evidence, in such a way that everyone who touched the exhibit would describe how and from
whom it was received, where it was and what happened to it while in the witness' possession,
the condition in which it was received, and the condition in which it was delivered to the next
link in the chain.24 The need for the punctilious observance of the chain-of-custody process in
drug-related cases is explained in Malillin in the following wise:
While testimony about a perfect chain is not always the standard because it is almost always
impossible to obtain, an unbroken chain of custody becomes indispensable and essential when
the item of real evidence is not distinctive and is not really identifiable, or when its condition at
the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The
same standard likewise obtains in case the evidence is susceptible to alteration, tampering,
contamination and even substitution and exchange. In other words, the exhibit's level of
susceptibility to fungibility, alteration or tampering without regard to whether the same is
advertent or otherwise not dictates the level of strictness in the application of the chain of
custody rule.
xxx
A unique characteristic of narcotic substances is that they are not readily identifiable as in fact
they are subject to scientific analysis to determine their composition and nature. The Court
cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the
links in the chain of custody over the same there could have been tampering, alteration or
substitution of substances from other casesby accident or otherwise in which similar evidence
was seized or in which similar evidence was submitted for laboratory testing. Hence, in
authenticating the same, a standard more stringent than that applied to cases involving objects
which are readily identifiable must be applied, a more exacting standard that entails a chain of
custody of the item with sufficient completeness if only to render it improbable that the original
item has either been exchanged with another or been contaminated or tampered
with.25 (Emphasis added.)
As the Court distinctly notes in this case, of the individuals who came into direct contact with or
had physical custody of the seized regulated items, only PO3 Ramos testified for the specific
purpose of identifying the evidence. In the witness box, however, he did not indicate how he
and his companions, right after the buy bust, handled the seized plastic bag and its contents. He
did not name the duty desk officer at Camp Vicente Lim to whom he specifically turned over the
confiscated bag and sachets at least for recording. What is on record is Exhibit "C," which, as
earlier described, is a memorandum26 PO3 Ramos prepared27 dated April 5, 2000 from the
RSOG-IV Director to the Chief, PNP R-IV Crime Laboratory Service, submitting for qualitative
analysis the white crystalline substance confiscated by the buy-bust group. Needless to stress,
the unnamed person who delivered the suspected shabu and the recipient of it at the
laboratory were no-show in court to testify on the circumstances under which they handled the
specimen or whether other persons had access to the specimen before actual testing. And C/I
Geronimo, the analyzing forensic chemist, was not also presented. Then, too, no one testified
on how the specimen was cared after following the chemical analysis. As the Court observed
aptly in People v. Ong, "[T]hese questions should be answered satisfactorily to determine
whether the integrity of the evidence was compromised in any way. Otherwise, the prosecution
cannot maintain that it was able to prove the guilt of appellants beyond reasonable doubt." 28
It cannot be overemphasized that Inspector Tria was really not part of the custodial chain. And
she did not as she could not, even if she wanted to, testify on whether or not the specimen
turned over for analysis and eventually offered in court as exhibit was the same substance
received from Arguson.
Given the foregoing perspective, it is fairly evident that the police operatives trifled with the
procedures in the custody of seized prohibited drugs in a buy-bust operation, as embodied in
Sec. 21(1), Art. II of RA 9165, i.e., the apprehending officer/team having initial custody and
control of the drug shall:
immediately after seizure and confiscation, physically inventory and photograph the [drug] in
the presence of the accused or the person/s from whom such items were confiscated and/or
seized, or his/her representative or counsel, a representative from the media and the
Department of Justice (DOJ), and any elected public official who shall be required to sign the
copies of the inventory and be given a copy thereof.29
In this case, no physical inventory was made and no photograph taken nor markings made on
the seized articles at the crime scene. PO3 Ramos admitted as much, thus:
Q. Now, you were able to arrest all the accused here, after their arrest, what did you
do? A. After informing their rights and the reason why we arrest them we brought them
immediately to our office in Canlubang.
 xxx
Q. Now, what about this Shabu, who was in possession of this Shabu x x x when you left the
place and proceeded to Canlubang? A. PO2 Balosbalos, sir.
xxx
Q. Now, when you reach your office, what did you do there? A. I made the booking sheet and I
requested for their medical/physical examination x x x.30
Just as clear is the fact that the exacting chain of custody rule was not observed. Withal, there is
no reasonable assurance that no tampering or substitution occurred between the time the
police seized the black bag in P. Ocampo St. in Manila until its contents were tested in the
laboratory of the PNP R-IV headquarters in Canlubang, Laguna. In net effect, a heavy cloud of
doubt hangs over the integrity and necessarily the evidentiary value of the seized items. The
prosecution cannot, thus, rightfully assert that the six sachets seized from Arguson were the
very same objects tested by C/I Geronimo and offered in court in proving the corpus delicti.
Adding a negative dimension to the prosecution's case is the non-presentation of C/I Geronimo
and the presentation in her stead of Inspector Tria to testify on the chemical report C/I
Geronimo prepared. While Inspector Tria can plausibly testify on the fact that C/I Geronimo
prepared the chemical report in the regular course of her duties, she, Inspector Tria, was
incompetent to state that the specimen her former colleague analyzed was in fact shabu and
was the same specimen delivered to the laboratory for chemical analysis.
To be sure, the Court, notably in People v. Bandang, has held that the non-presentation of the
forensic chemist in illegal drug cases is an insufficient cause for acquittal. In it, the accused
persons were convicted of illegal sale of shabu even if the forensic chemist who prepared the
corresponding laboratory report was not presented. Thus, we wrote:
x x x In People v. Uy, we ruled that a forensic chemist is a public officer and as such, his report
carries the presumption of regularity in the performance of his function and duties. Corollarily,
under Section 44 of Rule 130, x x x entries in official records made in the performance of official
duty are prima facie evidence of the facts therein stated. Omero's reports that the seven
sachets of white crystalline substance were "positive for methylamphetamine hydrochloride" or
shabu are, therefore, conclusive in the absence of evidence proving the contrary, as in this
case.ςηαñrοblεš νιr†υαl lαω lιbrαrÿ
Second, it must be stressed that Atty. Enriquez raises his objection to the Initial Laboratory
Report and Chemistry Report No. D-1585-00 only now. He should have objected to their
admissibility at the time they were being offered. Otherwise, the objection shall be considered
waived and such evidence will form part of the records of the case as competent and
admissible evidence. The familiar rule in this jurisdiction is that the admissibility of certain
documents x x x cannot be raised for the first time on appeal. 31 (Emphasis added.)
It should be pointed out, however, that the Bandang ruling was cast against a different
backdrop where: (1) the seized crystalline substance was the same item examined and tested
positive for shabu and presented in court, implying that the identity and integrity of prohibited
drug was safeguarded throughout, a circumstance not obtaining in this case; (2) there was a
compelling reason for not presenting the examining forensic chemist, i.e., the parties stipulated
that the confiscated seven plastic bags have been identified and examined and that the chemist
stated in his report that the substance is positive for shabu. In this case, C/I Geronimo's
resignation from the service is not, standing alone, a justifying factor for the prosecution to
dispense with her testimony; and (3) accused Bandang, et al. did not raise any objection to the
chemical report during trial, unlike here where accused-appellant objected to Inspector Tria's
competency to testify on the Geronimo chemical report.
At any rate, Inspector Tria's testimony on, and the presentation of, the chemistry report in
question only established, at best, the existence, due execution, and authenticity of the results
of the chemistry analysis.32 It does not prove compliance with the requisite chain of custody
over the confiscated substance from the time of seizure of the evidence. In this regard, the
Court in effect stated in Malillin that unless the state can show by records or testimony that the
integrity of the evidence has not been compromised by accounting for the continuous
whereabouts of the object evidence at least between the time it came into the possession of
the police officers until it was tested in the laboratory, 33 then the prosecution cannot maintain
that it was able to prove the guilt of the accused beyond reasonable doubt. So it was that
in People v. Kimura the Court said that in establishing the corpus delicti, proof beyond
reasonable doubt demands that "unwavering exactitude"34 be observed, a demand which may
be addressed by hewing to the chain-of-custody rule. Evidently, the prosecution has not proved
that the substance seized in front of the McDonald's was the same substance adduced in
evidence as an indispensable element of corpus delicti of the crime, which failure produces a
serious doubt as to accused-appellant's guilt.35
Both the trial and appellate courts made much of the presumption of regularity in the
performance of official functions both with respect to the acts of PO3 Ramos and other PNP
personnel at Camp Vicente Lim. To a point, the reliance on the presumptive regularity is
tenable. This presumption is, however, disputable and may be overturned by affirmative
evidence of irregularity or failure to perform a duty; 36 any taint of irregularity vitiates the
performance and negates the presumption. And as earlier discussed, the buy bust team
committed serious lapses in the handling of the prohibited item from the very start of its
operation, the error of which the PNP R-IV command later compounded. The Court need not
belabor this matter anew.
Lest it be overlooked, the presumption of regularity in the performance of official duty always
yields to the presumption of innocence and does not constitute proof beyond reasonable
doubt.37 We held in one case:
The presumption of regularity in the performance of official duty cannot be used as basis for
affirming accused-appellant's conviction because, "[f]irst, the presumption is precisely just that
a mere presumption. Once challenged by evidence, as in this case, x x x [it] cannot be regarded
as binding truth. Second, the presumption of regularity in the performance of official functions
cannot preponderate over the presumption of innocence that prevails if not overthrown by
proof beyond reasonable doubt."38
For failure then of the prosecution to establish the guilt of accused-appellant beyond
reasonable doubt, she must perforce be exonerated from criminal liability. The facts and the
law of the case call for this kind of disposition.
But a final consideration. The Court is cognizant of the campaign of the police and other drug
enforcement agencies against the growing drug menace in the country. Unfortunately, their
best efforts, particularly successful honest-to-goodness buy-bust operations, sometimes still
end up in the acquittal of illegal drug manufacturers, distributors, pushers and/or lesser players,
even when nabbed in flagrante, simply because drug enforcement operatives tend to
compromise the integrity and evidentiary worth of the seized illegal items. This aberration is
oftentimes in turn attributable to the unfamiliarity of police operatives of extant rules and
procedures governing the custody, control, and handling of seized drugs. This is, thus, an
opportune time to remind all concerned about these rules and procedures and the guiding
jurisprudence. And to put things in the proper perspective, non-compliance with the legal
prescriptions of the Dangerous Drugs Act, as amended, is, as we made abundantly clear
in People v. Sanchez, not necessarily fatal to the prosecution of drug-related cases; that police
procedures may still have some lapses. These lapses, however, must be recognized, addressed,
and explained in terms of their justifiable grounds, and the integrity and evidentiary value of
the evidence seized must be shown to have been preserved by the apprehending officer or
team.
To be forewarned is to be forearmed.
WHEREFORE, the CA Decision dated July 19, 2007 in CA-G.R. CR-H.C. No. 00476, affirming that
of the RTC, Branch 53 in Manila which found her guilty of violating Sec. 15, Art. III of RA 6425
and imposed upon her the penalty of reclusion perpetua and a fine of PhP 500,000, is
hereby REVERSED and SET ASIDE.Accused-appellant Monalyn Cervantes y Solar is ACQUITTED
on the ground of reasonable doubt and is accordingly immediately RELEASED from custody
unless she is being lawfully held for some lawful cause.
The Director of the Bureau of Corrections is directed to implement this Decision and to report
to this Court the action taken hereon within five (5) days from receipt of this Decision.
SO ORDERED.

G.R. No. 172500               September 21, 2007

LILIBETH ARICHETA, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES, Respondent.
DECISION
CHICO-NAZARIO, J.:
Assailed before Us is the Decision1 of the Court of Appeals in CA-G.R. CR No. 25540 which
affirmed with modifications the Decision2 of the Regional Trial Court (RTC) of Manila, Branch 29,
in Criminal Case No. 96-152984, convicting petitioner Lilibeth Aricheta of the crime of Estafa.
In an Information filed on 7 October 1996, petitioner was charged with Estafa allegedly
committed as follows:
That sometime in April 1994, in the City of Manila, Philippines, the said accused being then the
owner of a parcel of land located at Bo. Bagumbong, Novaliches, Kalookan City containing an
area of forty-eight (48) sq. meters more or less, with improvements thereon which she acquired
from the National Housing Authority (NHA) by virtue of a Deed of Sale with Mortgage, did then
and there willfully, unlawfully and feloniously defraud MARGARITA VASQUEZ, in the following
manner, to wit: the said accused well knowing that she had already sold the said lot to a third
party, willfully, unlawfully and feloniously sold the same lot to MARGARITA VASQUEZ as
evidenced by a Deed of Sale with assumption of Mortgage executed between her and
MARGARITA VASQUEZ on 27th April, 1994 before Notary Public Nonilo A. Quitangon and
recorded in the latter’s Notarial Register as Doc. No. 238, Page 49, Book XV, Series of 1994, in
consideration of which the said MARGARITA VASQUEZ paid accused ₱50,000.00 and to assume
the sum of ₱191,075.00 with the NHA, without the knowledge and consent of MARGARITA
VASQUEZ, which amount once in her possession, with intent to defraud, misapplied,
misappropriated and converted to her own personal use and benefit, to the damage and
prejudice of MARGARITA Vasquez in the amount of ₱50,000.00, Philippine currency. 3
When arraigned on 13 January 1997, petitioner, assisted by counsel de oficio, pleaded not
guilty to the crime charged.4
On 18 February 1997, the pre-trial conference was terminated. 5
The prosecution presented private complainant Margarita Sevilla Vasquez and Norita A. de
Guzman.
Private complainant testified that petitioner was a family friend whom she had known for more
than ten years. She used to buy viands from petitioner’s mother, who was the latter’s sister-in-
law’s officemate at the National Housing Authority (NHA).
Petitioner agreed to sell to private complainant her rights over a house and lot described as Lot
5, Blk. 2, located at Barangay Bagumbong, Novaliches, Caloocan City. Private complainant
agreed to pay petitioner ₱50,000.00 and to assume payment of the monthly amortization to
the NHA for twenty-five (25) years. The former was able to see the property twice -- first, in
April 1994 before she agreed to buy the same; and second, in May 1994. The property was
without water and electricity, not yet finished, and still unoccupied. The ground floor had no
partition, while the second floor had no room and ceiling.
On 27 April 1994, private complainant and petitioner entered into a Deed of Sale with
Assumption of Mortgage.6 It contained a provision stating that "the Vendor is the absolute
owner of the said property and hereby warrants the Vendee from any lawful claim of
whomsoever over the same." The payment of ₱50,000.00 to petitioner was made by private
complainant in the latter’s office located at 329 NDC Compound, Pureza St., Sta. Mesa, Manila.
After the execution of the document and payment, private complainant tried to occupy the
house and lot, but was told by petitioner that she could not occupy the same yet, because she
still had no gate pass or ID issued by the NHA. Petitioner told her she would be able to secure
the gate pass within a month or in May 1994.
In May 1994, private complainant asked petitioner about the gate pass, but was told that its
issuance was being delayed. Almost everyday, private complainant called petitioner, but she
was told the gate pass was not yet available. She even went to the house of petitioner who told
her that a case between the NHA and the developer was the cause of the delay.
In October 1995, private complainant went to the NHA and was informed by a certain Amy Cruz
that the gate pass had already been obtained by petitioner. Consequently, she went to
Barangay Bagumbong, Caloocan City, where she found out that someone was already
occupying the house and lot. She confronted petitioner on the matter, and the latter admitted
that she (petitioner) sold it to another person. Petitioner also told her that the person who
bought it leased the same to another person.
Under the circumstances, private complainant orally asked petitioner to return the ₱50,000.00
she paid her. Thereafter, private complainant sent petitioner a demand letter, 7 which the latter
ignored. She then filed both civil and criminal cases against petitioner.
Private complainant explained that she did not submit the deed of sale to the NHA because she
trusted the petitioner. However, she said that when she tried to secure the gate pass, she
presented the deed of sale to a certain Amy Cruz who told her that only petitioner was
authorized to get the gate pass, and that she already did. She added that petitioner did not tell
her to submit the deed of sale to the NHA.
Private complainant further said that although her sister-in-law, Rexelita Cordero -- petitioner’s
best friend, kumare and officemate at the NHA -- convinced her to buy the house and lot
subject of this case, Ms. Cordero was not an agent of petitioner.
Mrs. Norita A. de Guzman, an officemate of private complainant at Kibono Manufacturing
Company, confirmed the transaction between private complainant and petitioner regarding the
sale of the right of the petitioner over the house and lot involved in this case. She narrated that
on 27 April 1994, she was told by private complainant that someone would be arriving in their
office who was selling her rights over some property in Caloocan City, and that private
complainant would be paying this person. This person turned out to be the petitioner.
Mrs. De Guzman testified she saw private complainant give to petitioner the amount of
₱50,000.00 in cash. Thereafter, the contract was signed and she, together with another
officemate, was asked by private complainant to act as witnesses. During the transaction, she
was two feet away from private complainant and petitioner. After the signing, she said they
appeared before Atty. Nonilo A. Quitangon who notarized the Deed of Sale with Assumption of
Mortgage.
For the defense, petitioner took the witness stand.
Petitioner testified that the house and lot, subject matter of this case, was awarded to her
through a raffle at the NHA. She has to pay monthly amortizations for twenty-five (25) years to
the NHA. She said the property cannot be sold during this period.
Petitioner denied personally knowing the private complainant. She insisted that she did not sell
the house and lot to private complainant but merely mortgaged it to her. She narrated that she
first mortgaged the property to Margarita Galang who occupied the property with the condition
that she would vacate the same when the money she loaned is returned. Petitioner then
mortgaged the same property to private complainant because her kumare was borrowing
money from her. She, however, did not inform private complainant of the first mortgage. She
signed a deed of sale but did not totally read the document. What she understood was that if
she cannot redeem the property within six months, the property is deemed sold. Since
petitioner has not returned the amount she borrowed from Margarita Galang, the latter is
entitled to occupy the property which, according to petitioner, is still in her name.
Petitioner further explained that despite the prohibition to sell or mortgage the property within
the 25-year period, she still mortgaged the property to Margarita Galang within one year from
the award of the property to her. She said she has no proof that she mortgaged the property to
Ms. Galang, but she signed a document as evidence that she received money. Although she
signed the deed of sale, she claimed she is still the owner per notice of the NHA.
On 25 September 2000, the trial court promulgated its Decision convicting accused-petitioner
of Estafa. The decretal portion of the decision reads:
WHEREFORE, this Court finds the accused, LILIBETH ARICHETA, GUILTY beyond reasonable
doubt of the crime of ESTAFA and she is hereby sentenced to suffer the indeterminate penalty
of SIX (6) YEARS, ONE (1) DAY of prision mayor minimum as minimum to EIGHT (8) YEARS,
EIGHT (8) MONTHS, ONE (1) DAY of the medium of prision mayor medium as maximum with all
the accessory penalties provided by law, and to pay the costs.8
Via a notice of appeal, accused-petitioner appealed the decision to the Court of Appeals. 9
In its decision dated 26 April 2006, the Court of Appeals affirmed with modifications the trial
court’s decision as follows:
WHEREFORE, in view of the foregoing, the Decision dated September 25, 2000 is hereby
AFFIRMED with MODIFICATIONS. Accused is hereby sentenced to suffer the indeterminate
penalty of TWO (2) YEARS, ELEVEN (11) MONTHS and TEN (10) DAYS of prision correccional
minimum to medium as minimum to EIGHT (8) YEARS, EIGHT (8) MONTHS and TWENTY-ONE
(21) DAYS of prision correccional maximum to prision mayor minimum as maximum with all the
accessory penalties provided by law and to pay the costs.10
The Court of Appeals, in upholding petitioner’s conviction, ratiocinated:
The Deed of Sale with Assumption of Mortgage (Exh. "A") dated April 27, 1994 and signed by
accused Lilibeth L. Aricheta in favor of Margarita Vasquez speaks only of the mortgage with the
National Housing Authority (NHA). Margarita Vasquez, as vendee, agreed to assume payment of
the balance on the loan with NHA. Said instrument includes the warranty by Lilibeth L. Aricheta,
as vendor, that she "is the absolute owner of said property" and "warrants the vendee from any
lawful claim of whomsoever over the same." (Exhibit "A").
xxxx
At the time accused-[appellant] signed the deed of sale in favor of Margarita Vasquez she
represented to the latter that she was the absolute owner of the property subject matter of the
sale. Accused-[appellant] warranted to defend said transaction from the claim of anybody
whomsoever. Whether the previous transaction in favor of Magdalena Galang was a sale or a
mortgage, aforesaid written guaranty embodied in the sale to Margarita Vasquez was violated.
The representation, therefore, that accused-[appellant] was the absolute owner of the property
sold to Margarita Vasquez and it was free from the claim of anybody was fraudulent. Said false
pretense was simultaneous with the commission of the fraud. Margarita Vasquez was induced
to deliver the sum of ₱50,000.00 on account of said fraudulent misrepresentation. Margarita
Vasquez suffered damage.11
Petitioner is now before us via a petition for review on certiorari raising a sole issue:
WHETHER THE COURT OF APPEALS ERRED IN AFFIRMING THE TRIAL COURT’S FINDINGS THAT
THE PETITIONER IS GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ESTAFA.
Petitioner contends that the element of deceit which, in this case is the making of false
representations that she is the owner of the subject property when she transacted with private
complainant, is not present in the case at bar because at the time she transacted with private
complainant, she was still the owner thereof. She claims that nowhere in the records of the
case was it shown that she previously sold or mortgaged the subject property and that the
records of the NHA show that the property remained in her name at the time she dealt with
private complainant.
Estafa under Article 315, paragraph 2, of the Revised Penal Code is committed by any person
who defrauds another by using a fictitious name; or falsely pretends to possess power,
influence, qualifications, property, credit, agency, business or imaginary transactions; or by
means of similar deceits executed prior to or simultaneously with the commission of
fraud.12 Under this class of estafa, the element of deceit is indispensable.13
The elements of Estafa by means of deceit as defined under Article 315(2)(a) of the Revised
Penal Code are as follows: (1) that there must be a false pretense, fraudulent act or fraudulent
means; (2) that such false pretense, fraudulent act or fraudulent means must be made or
executed prior to or simultaneously with the commission of the fraud; (3) that the offended
party must have relied on the false pretense, fraudulent act or fraudulent means, that is, he
was induced to part with his money or property because of the false pretense, fraudulent act or
fraudulent means; and (4) that as a result thereof, the offended party suffered damage. 14
Fraud, in its general sense, is deemed to comprise anything calculated to deceive, including all
acts, omissions and concealment involving a breach of legal or equitable duty, trust or
confidence justly reposed, resulting in damage to another, or by which an undue and
unconscientious advantage is taken of another. It is a generic term embracing all multifarious
means which human ingenuity can device, and which are resorted to by one individual to
secure an advantage over another by false suggestions or by suppression of truth; and includes
all forms of surprise, trick, cunning, dissembling and any other unfair way by which another is
cheated. Deceit is a species of fraud.15 And deceit is the false representation of a matter of fact
whether by words or conduct, by false or misleading allegations, or by concealment of that
which should have been disclosed which deceives or is intended to deceive another so that he
shall act upon it, to his legal injury. The false pretense or fraudulent act must be committed
prior to or simultaneously with the commission of the fraud,16 it being essential that such false
statement or representation constitutes the very cause or the only motive which induces the
offended party to part with his money. In the absence of such requisite, any subsequent act of
the accused, however fraudulent and suspicious it might appear, cannot serve as basis for
prosecution for estafa under the said provision.17
As can be gleaned from the allegations in the information, petitioner was charged with Estafa
for allegedly selling to private complainant the subject property knowing fully well that she had
already sold the same to a third party. From this, it is therefore clear that the supposed false
representation or false pretense made by petitioner to private complainant was that she was
still the owner of the property when she sold it to private complainant.
The prosecution relies heavily on the provision contained in the Deed of Sale with Assumption
of Mortgage "That the Vendor is the absolute owner of said property and hereby warrants the
Vendee from any lawful claim of whomsoever over the same." It argues that petitioner, in
executing said document in favor of private complainant, fraudulently represented that she is
the absolute owner of the property and warranted that the transfer of rights over the property
is free "from any lawful claim of whomsoever over the same" because at the time she made
this representation, she had already sold/mortgaged the property to another person.
The question to be resolved is whether the prosecution was able to prove beyond reasonable
doubt the alleged false representation or false pretense contained in the information.
As above explained, the alleged false representation or false pretense made by petitioner to
private complainant was that she was still the owner of the property when she sold it to private
complainant. To prove such allegation, the prosecution should first establish that the property
was previously sold to a third party before it was sold to private complainant. The prosecution
utterly failed to do this. The fundamental rule is that upon him who alleges rests the burden of
proof.18 It made this allegation but it failed to support it with competent evidence. Except for
private complainant’s bare allegation that petitioner told her that she (petitioner) sold the
property to another person, the records are bereft of evidence showing that the property was
indeed previously sold to a third person before it was sold again to private complainant. What
was shown by the prosecution and admitted by the defense is the fact that the property is
being currently occupied by a person other than private complainant. This fact does not prove
that the property was previously sold to another person before being sold again to private
complainant. Even assuming arguendo that the property was previously mortgaged, this does
not prove that petitioner is no longer its owner when she sold the same to private complainant.
At most, it only shows that the property is encumbered and that there was no change in
ownership which is contrary to the prosecution’s claim that there was already a transfer of
ownership before the property was sold to private complainant.
The prosecution cannot rely on the warranty contained in the Deed of Sale with Assumption of
Mortgage that "the Vendor warrants the Vendee from any lawful claim of whomsoever over
the same" for the reason that the same is not alleged in the Information. This is not part of the
charge against petitioner. Petitioner was indicted for making false representations to the
private complainant that she is the owner of the property involved when this property was
supposedly already sold to another person. The allegations were made pursuant to Section 9,
Rule 11019 of the Revised Rules of Criminal Procedure. She was not charged with falsely
representing to private complainant that the property was not mortgaged or being occupied by
a third person. The charge in the information is specific. The charge cannot be broadened to
include what is not alleged to the detriment of the petitioner. If this were to be done, the
petitioner’s right to be informed of the nature and cause of the accusation against her would be
violated.20
In Andaya v. People,21 this Court said:
It is fundamental that every element constituting the offense must be alleged in the
information.1âwphi1 The main purpose of requiring the various elements of a crime to be set
out in the information is to enable the accused to suitably prepare his defense because he is
presumed to have no independent knowledge of the facts that constitute the offense. The
allegations of facts constituting the offense charged are substantial matters and an accused’s
right to question his conviction based on facts not alleged in the information cannot be waived.
No matter how conclusive and convincing the evidence of guilt may be, an accused cannot be
convicted of any offense unless it is charged in the information on which he is tried or is
necessarily included therein. To convict him of a ground not alleged while he is concentrating
his defense against the ground alleged would plainly be unfair and underhanded. The rule is
that a variance between the allegation in the information and proof adduced during trial shall
be fatal to the criminal case if it is material and prejudicial to the accused so much so that it
affects his substantial rights.
We are not saying that petitioner did not commit any wrongdoing. There was indeed an
injustice committed to private complainant when she was not able to occupy the property she
bought from petitioner. The problem, however, is we cannot convict petitioner for an act not
alleged in the information. To do so would be violative of the fundamental law of the land.
Where the inculpatory facts and circumstances are susceptible of two or more interpretations,
one of which is consistent with the innocence of the accused while the other may be
compatible with the finding of guilt, the Court must acquit the accused because the evidence
does not fulfill the test of moral certainty required for conviction. 22
In the present case, the prosecution, which has the burden to prove beyond reasonable doubt
all the essential elements of the felony, failed to discharge this burden. It failed to establish, as
alleged in the information, the false representation or false pretense that petitioner supposedly
committed; that is, the property in question was previously sold to another person before it
was sold to private complainant. With this failure, the presumption of innocence in favor of
petitioner prevails and we are thus constrained to render an acquittal.
ALL THE FOREGOING CONSIDERED, the petition for review on certiorari is GRANTED. The
decision of the Court of Appeals convicting petitioner of Estafa in CA-G.R. CR No. 25540 is
REVERSED and SET ASIDE. Petitioner Lilibeth Aricheta is acquitted of said charge on ground of
reasonable doubt. No costs.
SO ORDERED.

G.R. No. 128508 February 1, 1999

DANIEL G. FAJARDO, petitioner,
vs.
COURT OF APPEALS, HON. FLORENTINO P. PEDRONIO, in his capacity as Presiding Judge,
Regional Trial Court, Branch 31, Iloilo City; PEOPLE OF THE PHILIPPINES and STATION
COMMANDER OF ILOILO CITY, respondent.
 
PARDO, J.:
The case is an appeal via certiorari taken by petitioner from a decision of the Court of Appeals
that denied due course to his motion for probation in Criminal Case No. 14196 of the Regional
Trial Court, Branch 31, Iloilo City, arising from his conviction of violation of Batas Pambansa
Bilang 22, for which he was sentenced to imprisonment of eight (8) months.
We deny the petition.
On May 26, 1988, the Regional Trial Court, Branch 33, Iloilo City, convicted petitioner of
violation of Batas Pambansa Bilang 22, and sentenced him to suffer the penalty of eight (8)
months imprisonment and to pay the costs, in Criminal Case No. 14196. He appealed to the
Court of Appeals. 1 By decision promulgated on February 27, 1990, the Court of Appeals
affirmed the conviction.
On August 20, 1990, the Supreme Court denied a petition for review on certiorari of the
conviction. 2
Upon the remand of the record to the lower court, on June 2, 1995, petitioner filed a motion for
probation contending that he was eligible for probation because at the time he committed the
offense in 1981, an accused who had appealed his conviction was still qualified to apply for
probation and that the law that barred an application for probation of an accused who had
interposed an appeal was ex post facto in its application, and, hence, not applicable to him.
On January 5, 1996, the trial court denied petitioner's motion for probation.
On July 29, 1996, petitioner filed with the Court of Appeals a petition for certiorari to annul the
lower court's denial of his application for probation. 3 On November 12, 1996, the Court of
Appeals denied due course to the petition. 4
Hence, this appeal. 5
At issue in this case is whether petitioner could qualify to apply for probation under Presidential
Decree No. 968 since he had appealed from his conviction in 1988, after Presidential Decree No.
1990 amending Presidential Decree No. 968, became effective in 1986, providing that "no
application for probation shall be entertained or granted if the defendant has perfected the
appeal from the judgment of conviction." 6 Petitioner maintains the view that Presidential
Decree No. 1990, issued on October 5, 1985, is null and void on the ground that at that time
President Ferdinand E. Marcos could no longer exercise legislative powers as the Batasan
Pambansa was functioning and exercising sole legislative powers.
The contention is without merit. At that time, President Marcos was vested with legislative
powers concurrently with the Batasan Pambansa. 7
Consequently, Presidential Decree No. 1990, is valid. Presidential Decree No. 1990, enacted on
October 5, 1985, "was printed in Volume 81 of the Official Gazette dated December 30, 1985
but said issue was released for circulation only on July 1, 1986; hence, P D 1990 became
effective after fifteen (15) days from July 1, 1986, in accordance with Article 2 of the Civil Code,
or on July 16, 1986." 8 It is not ex post facto in its application. The law applies only to accused
convicted after its effectivity. 9 An ex post facto law is one that punishes an act as a crime which
was innocent at the time of its commission. 10 Presidential Decree No. 1990, like the Probation
Law that it amends, is not penal in character. 11 It may not be considered as an ex post
facto law. 12
At the time of the commission of the offense charged—violation of Batas Pambansa Bilang 22—
in 1981, petitioner could have appealed if convicted and still availed himself of probation.
However, petitioner was convicted on May 26, 1988, and he appealed. At that time, petitioner
no longer had the option to appeal and still apply for probation if unsuccessful in the
appeal. 13 Presidential Decree No. 1990 was then in full effect. Hence, he could no longer apply
for probation since he had appealed.
On October 13, 1997, the Solicitor General 14 submitted a manifestation positing the view that
petitioner's application for probation may still be considered because when petitioner
committed the offense in 1981, he could avail himself of probation since the law as it stood at
that time provided that an accused convicted of a crime may apply for probation even if he had
appealed the conviction. 15 We do not share his view. The case he cited is a Court of Appeals
decision, and, hence, not a precedent. What is more, it is inapplicable because there, the
accused's conviction became final on October 14, 1985. Presidential Decree No. 1990 although
enacted on October 5, 1985, was published in the Official Gazette on December 30,
1985, 16 and, hence, was not yet applicable at the time the accused was finally convicted.
Regrettably, the Solicitor General has cited a Court of Appeals decision that is inapplicable to
this case because the facts were not similar.
We find it unnecessary to resolve the other issues that petitioner has raised questioning the
constitutionality and wisdom of Presidential Decree No. 1990, amending the probation law.
WHEREFORE, the Court DENIES the petition for review on certiorari of the decision of the Court
of Appeals in CA-G.R. SP No. 41447. Costs against petitioner.
SO ORDERED.
G.R. No. 177961               April 7, 2009
LOURDES A. SABLE, Petitioner,
vs.
PEOPLE OF THE PHILIPPINES and HON. ENRIQUETA LOQUILLANO-BELARMINO, Presiding
Judge, Branch 57, RTC, Cebu City, Respondents.
DECISION
CHICO-NAZARIO, J.:
Before Us is a Petition for Certiorari1 under Rule 65 of the Revised Rules of Court filed by
petitioner Lourdes A. Sable seeking the reversal and the setting aside of the Decision 2 dated 14
December 2006 and Resolution3 dated 21 February 2007 of the Court of Appeals in CA-G.R.
CEB-CR No. 81981. In its assailed Decision, the Court of Appeals affirmed the Order 4 dated 22
July 2003 of the Regional Trial Court (RTC) of Cebu, Branch 57, disallowing petitioner’s
application for probation in Criminal Case No. CBU-35455, and denied petitioner’s Motion for
Reconsideration thereof.
The undisputed facts are as follows:
Petitioner, together with Concepcion Abangan (Concepcion), Ildefonsa Anoba (Ildefonsa) and
Valentine Abellanosa (Valentine), is accused in Criminal Case No. CBU-35455 of Falsification of
Public Documents under Article 172(1) in relation to Article 171 of the Revised Penal Code.
Petitioner and co-accused Ildefonsa were arraigned on 20 July 1994 while co-accused
Concepcion was never arrested. During the initial trial, Atty. Gines Abellana, counsel for all the
accused, manifested that co-accused Valentine was already dead and requested that his name
be dropped from the information.
Petitioner and co-accused Ildefonsa are the grand-daughters of Eleuteria Abangan, who is one
of the registered owners of Lot No. 3608, which is registered under Original Certificate of Title
(OCT) No. RO-2740 in the names of Andrea Abangan, Fabian Abangan, Sergio Abangan,
Antonino Abangan, Perfecta Abangan and Eleuteria Abangan. Private complainant Gaspar
Abangan (Gaspar) is the grandson of Lamberto Abangan, who is a brother of the registered
owners of the lot. Petitioner, together with her co-accused Ildefonsa, allegedly falsified an
Extrajudicial Declaration of Heirs with Waiver of Rights and Partition Agreement, as the
signatures contained therein were not the signatures of the true owners of the land. Petitioner
and Ildefonsa also allegedly caused it to appear that a certain Remedios Abangan, who was
already dead, signed the document.
By virtue of the Extrajudicial Declaration of Heirs, Lot No. 3608 was subdivided into two lots,
namely, 3608-A and 3608-B; and OCT No. RO-2740 was cancelled. Lot No. 3608-A was
transferred to the name of co-accused Concepcion and was registered under Transfer
Certificate of Title (TCT) No. 113266. With respect to Lot No. 3608-B, petitioner was able to
execute a Deed of Absolute Sale in favor of one Perpetua Sombilon, and accordingly, the title to
the lot was transferred to the name of the latter under TCT No. 113267.
On 28 November 2000, the RTC convicted petitioner of the crime of Falsification of Public
Documents under Article 172(1) in relation to Article 171 of the Revised Penal Code, but
acquitted Ildefonsa. The dispositive portion of the Decision reads:
WHEREFORE, in view of the foregoing, the court finds accused Ildefonsa Anoba not guilty.
However, the court finds Lourdes Abellanosa Sable guilty beyond reasonable doubt of the crime
charged and hereby sentences her to suffer an indeterminate penalty of FOUR (4) YEARS, TWO
(2) MONTHS and ONE (1) DAY to SIX (6) YEARS.5
Thereafter, petitioner filed a Motion for Reconsideration 6 of said RTC Decision on 20 January
2001. After several postponements due to the vacancy in the court a quo, the motion was
submitted for resolution only on 29 June 2001. The same was denied by respondent Judge
Enriqueta Loquillano-Belarmino in an Order7 dated 20 November 2003. On 13 December 2002,
a copy of the Order denying reconsideration of the judgment was received by petitioner’s
counsel.
Due to petitioner’s failure to interpose a timely appeal, an entry of judgment was issued on 5
June 2003. Petitioner, through counsel, filed Motions to Recall Warrant of Arrest and to Vacate
Entry of Judgment with Reconsideration and Explanation8 on 12 June 2003 alleging, among
other things, that petitioner’s counsel did not receive the Order because it was received by a
certain Che who was undergoing practicum in her counsel’s law office. On the day of receipt
thereof, it was Che’s last day at the office. Petitioner’s counsel further alleged that he was of
the belief that his Motion for Reconsideration of the judgment of conviction would be
rescheduled for hearing after the same had been postponed due to the vacancy in the court a
quo.
Pending resolution of the Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment
with Reconsideration, petitioner filed a Notice of Appeal on 17 June 2003. 9
Subsequently, in an Order10 dated 22 July 2003, respondent Judge denied the Motions to Recall
Warrant of Arrest and to Vacate Entry of Judgment. Petitioner’s Notice of Appeal was also
denied for having been filed out of time.
On 25 August 2003, petitioner moved for the reconsideration of the 22 July 2003 Order and
intimated her desire to apply for probation instead of appealing the judgment of conviction. 11 In
a Motion12 dated 15 October 2003, petitioner again prayed for the Recall of the Warrant of
Arrest against her, while her Motion for Reconsideration and her application for probation were
pending resolution before the RTC.
Finally, on 20 November 2003, the RTC issued the assailed Order, the dispositive portion of
which reads as follows:
WHEREFORE, accused’s motion for reconsideration of the Order dated July 22, 2003, motion to
recall warrant of arrest and motion to allow accused to avail of the benefits of the Probation
Law, all are hereby denied.13
Petitioner filed a Petition for Certiorari under Rule 65 before the Court of Appeals docketed as
CA-G.R. CEB-CR No. 81981, raising the sole issue of whether or not the respondent court acted
with grave abuse of discretion in denying the application for probation.
In its Decision14 dated 14 December 2006, the Court of Appeals denied the petition for lack of
merit, stating that the alleged failure of petitioner’s counsel to timely appeal the judgment of
conviction following the denial of the reconsideration thereof could not amount to excusable
negligence. It further enunciated that a notice of appeal of judgment filed six months after the
denial of the motion for reconsideration was denied is filed out of time and, as a result, the
application for probation must necessarily fail because the remedies of appeal and probation
are alternative and mutually exclusive of each other.
The Court of Appeals refused to reconsider its earlier Decision in a Resolution dated 21
February 2007.
Hence, this Petition for Certiorari under Rule 65 of the Rules of Court raising the sole issue:
WHETHER OR NOT THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF
DISCRETION AMOUNTING TO LACK OR EXCESS OF JURISDICTION IN AFFIRMING THE TRIAL
COURT’S ORDER DENYING PETITIONER’S APPLICATION FOR PROBATION.15
The petitioner prays that the instant petition be granted by allowing her to apply for probation
and ordering the RTC through respondent Judge to act on the application for probation by the
petitioner, based upon the recommendation of the probationer who may be assigned to
conduct the investigation of said application.
For the State, the Solicitor General argues that the Court of Appeals properly denied the
petition before it because, first, it is procedurally flawed for being an improper recourse; and
secondly, for non-compliance with the mandatory requirement of the law that an application
for probation must be filed within the period for perfecting an appeal.
We find the Petition devoid of merit.
Probation is a special privilege granted by the state to a penitent qualified offender. It
essentially rejects appeals and encourages an otherwise eligible convict to immediately admit
his liability and save the state the time, effort and expenses to jettison an appeal. 16
The pertinent provision of the Probation Law, as amended, reads:
Sec. 4. Grant of Probation.—Subject to the provisions of this Decree, the trial court may, after it
shall have convicted and sentenced a defendant and upon application by said defendant within
the period for perfecting an appeal, suspend the execution of the sentence and place the
defendant on probation for such period and upon such terms and conditions as it may deem
best; Provided, That no application for probation shall be entertained or granted if the
defendant has perfected the appeal from the judgment of conviction.
Probation may be granted whether the sentence imposes a term of imprisonment or a fine
only. An application for probation shall be filed with the trial court. The filing of the application
shall be deemed a waiver of the right to appeal.17 (Emphasis supplied.)
It is quite clear from the afore-quoted provision that an application for probation must be made
within the period for perfecting an appeal, and the filing of the application after the time of
appeal has lapsed is injurious to the recourse of the applicant.
In the present petition before Us, petitioner filed the application for probation on 25 August
2003, almost eight months from the time the assailed judgment of the RTC became final.
Clearly, the application for probation was filed out of time pursuant to Rule 122, Sec. 6 of the
Rules of Court, which states that an "appeal must be taken within fifteen (15) days from
promulgation of the judgment or from notice of the final order appealed from." In Palo v.
Militante,18 this Court held that what the law requires is that the application for probation must
be filed within the period for perfecting an appeal. The need to file it within such period is
intended to encourage offenders, who are willing to be reformed and rehabilitated, to avail
themselves of probation at the first opportunity.
Furthermore, the application for probation must necessarily fail, because before the application
was instituted, petitioner already filed a Notice of Appeal before the RTC on 17 June 2003. The
Probation Law is patently clear that "no application for probation shall be entertained or
granted if the defendant has perfected the appeal from the judgment of conviction."
The law expressly requires that an accused must not have appealed his conviction before he
can avail himself of probation. This outlaws the element of speculation on the part of the
accused -- to wager on the result of his appeal -- that when his conviction is finally affirmed on
appeal, the moment of truth well nigh at hand and the service of his sentence inevitable, he
now applies for probation as an "escape hatch," thus rendering nugatory the appellate court’s
affirmance of his conviction. Consequently, probation should be availed of at the first
opportunity by convicts who are willing to be reformed and rehabilitated; who manifest
spontaneity, contrition and remorse.19
This was the reason why the Probation Law was amended, precisely to put a stop to the
practice of appealing from judgments of conviction even if the sentence is probationable, for
the purpose of securing an acquittal and applying for the probation only if the accused fails in
his bid.20
We also note that the petitioner is unable to make up her mind as to what recourse she will
pursue, since in her petition for Certiorari she questioned the denial of her probation, 21 while in
her Memorandum she questioned the denial of her appeal.22 This just obviously manifests the
intention of petitioner to benefit from the remedy of probation just in case the remedy of
appeal is not given due course. Prevailing jurisprudence treats appeal and probation as
mutually exclusive remedies because the law is unmistakable about it and, therefore, petitioner
cannot avail herself of both.23
The explanation given by petitioner as to the cause of the failure to appeal the judgment of
conviction is flimsy. Petitioner’s counsel claims that the Order of the RTC denying the Motion
for Reconsideration dated 20 January 2001 was received by a certain Che, who was a student
doing practicum in his law office, and he attributed the non-receipt of the Order to her and
claimed that the mistake was excusable.1avvphi1.zw+ We agree with the Court of Appeals that
to constitute excusable negligence, such must be due to some unexpected or unavoidable
event, and not due to petitioner counsel’s self- admitted mistake or negligence in not giving
proper instruction to his staff.
Time and again, the Court has admonished law firms to adopt a system of distributing pleadings
and notices, whereby lawyers working therein promptly receive notices and pleadings intended
for cases. The Court has also often repeated that clerk’s negligence that adversely affects the
cases handled by lawyers is binding upon the latter.24
Finally, we find that there is an error in the mode of appeal used by petitioner. Under Rule 122,
Section 3(e) of the Rules of Court, "[e]xcept as provided in the last paragraph of Section 13,
Rule 124, all other appeals to the Supreme Court shall be by petition for review on certiorari
under Rule 45."
Here, petitioner elevated this petition via a Petition for Certiorari under Rule 65. Under the
Rules, subject to the exceptions,25 appeal to the Supreme Court must be via a petition for
Review under Rule 45. Since, this appeal is not within the exceptions, the proper mode of
appeal should be a Petition for Review under Rule 45, not under Rule 65.
It has been held that the proper remedy of the party aggrieved by a decision of the Court of
Appeals is a petition for review under Rule 45, which is not identical with a petition for review
under Rule 65. Under Rule 45, decisions, final orders or resolutions of the Court of Appeals in
any case, i.e., regardless of the nature of the action or proceedings involved, may be appealed
to us by filing a petition for review, which would be but a continuation of the appellate process
over the original case. On the other hand, a special civil action under Rule 65 is an independent
action based on the specific ground therein provided and, as a general rule, cannot be availed
of as a substitute for the lost remedy of an ordinary appeal, including that to be taken under
Rule 45.26 One of the requisites of certiorari is that there be no available appeal or any plain,
speedy and adequate remedy. Where an appeal is available, certiorari will not prosper even if
the ground therefor is grave abuse of discretion.27 Accordingly, when a party adopts an
improper remedy, as in this case, his petition may be dismissed outright. 28
Therefore, there is no abuse of discretion amounting to lack or excess of jurisdiction in the
Court of Appeals’ Decision and Resolution affirming the trial court’s Orders denying petitioner’s
Notice of Appeal, Motions to Recall Warrant of Arrest and to Vacate Entry of Judgment, and the
application for probation. There is nothing capricious in not granting an appeal after the time to
file the same has lapsed, nor is there anything arbitrary in denying an application for probation
after a notice of appeal has been filed.lawphil.net
WHEREFORE, premises considered, the instant Petition for Certiorari under Rule 65 is hereby
DISMISSED. The Decision dated 14 December 2006 and Resolution dated 21 February 2007 of
the Court of Appeals are AFFIRMED. No costs.
SO ORDERED.

G.R. No. 164815             February 22, 2008

SR. INSP. JERRY C. VALEROSO, petitioner,
vs.
THE PEOPLE OF THE PHILIPPINES, respondent.
DECISION
REYES, R.T., J.:
THE law looks forward, never backward. Lex prospicit, non respicit. A new law has a prospective,
not retroactive, effect.1 However, penal laws that favor a guilty person, who is not a habitual
criminal, shall be given retroactive effect.1-a These are the rule, the exception and exception to
the exception on effectivity of laws.
Ang batas ay tumitingin sa hinaharap, hindi sa nakaraan. Gayunpaman, ang parusa
ng bagong batas ay iiral kung ito ay pabor sa taong nagkasala na hindi pusakal na
kriminal.
We apply the exception rather than the rule in this petition for review on certiorari of the
decision of the Court of Appeals (CA), affirming with modification that of the Regional Trial
Court (RTC) in Quezon City, finding petitioner liable for illegal possession of a firearm.
The Facts
On July 10, 1996, at around 9:30 a.m., SPO2 Antonio M. Disuanco of the Criminal Investigation
Division, Central Police District Command, received a dispatch order 2 from the desk officer.3 The
order directed him and three (3) other policemen to serve a warrant of arrest 4 issued by Judge
Ignacio Salvador against petitioner Sr. Insp. Jerry C. Valeroso in a case for kidnapping with
ransom.5
After a briefing, the team conducted the necessary surveillance on petitioner, checking his
hideouts in Cavite, Caloocan, and Bulacan.6 Eventually, the team proceeded to the Integrated
National Police (INP) Central Station at Culiat, Quezon City, where they saw petitioner as he was
about to board a tricycle.7 SPO2 Disuanco and his team approached petitioner.8 They put him
under arrest, informed him of his constitutional rights, and bodily searched him. 9 Found tucked
in his waist10 was a Charter Arms, bearing Serial Number 52315 11 with five (5) live
ammunition.12
Petitioner was then brought to the police station for questioning. 13
A verification of the subject firearm at the Firearms and Explosives Division at Camp Crame
revealed that it was not issued to petitioner but to a certain Raul Palencia Salvatierra of
Sampaloc, Manila.14 Epifanio Deriquito, the records verifier, presented a certification 15 to that
effect signed by Edwin C. Roque, chief records officer of the Firearms and Explosive Division. 16
Petitioner was then charged with illegal possession of firearm and ammunition under
Presidential Decree (P.D.) No. 1866,17 as amended. The Information read:
That on or about the 10th day of July, 1996, in Quezon City, Philippines, the said accused
without any authority of law, did then and there willfully, unlawfully and knowingly have
in his/her possession and under his/her custody and control
One (1) cal. 38 "Charter Arms" revolver bearing Serial No. 52315 with five (5) live ammo.
without first having secured the necessary license/permit issued by the proper
authorities.
CONTRARY TO LAW.
Quezon City, Philippines, July 15, 1996.
(Sgd.)
GLORIA VICTORIA C. YAP
Assistant City Prosecutor18
With the assistance of his counsel de parte, Atty. Oscar Pagulayan, petitioner pleaded not guilty
when arraigned on October 9, 1996.19 Trial on the merits ensued.
SPO2 Disuanco and Deriquito testified for the prosecution in the manner stated above.
Upon the other hand, the defense version was supplied by the combined testimonies of
petitioner Sr. Insp. Jerry C. Valeroso, SPO3 Agustin R. Timbol, Jr. and Adrian Yuson.
Petitioner recounted that on July 10, 1996, he was fast asleep in the boarding house of his
children located at Sagana Homes, Barangay New Era, Quezon City.20 He was roused from his
slumber when four (4) heavily armed men in civilian clothes bolted the room. 21 They trained
their guns at him22 and pulled him out of the room. They then tied his hands and placed him
near the faucet.23 The raiding team went back inside and searched and ransacked the
room.24 SPO2 Disuanco stood guard outside with him.25 Moments later, an operative came out
of the room and exclaimed, "Hoy, may nakuha akong baril sa loob!"26
Petitioner was told by SPO2 Disuanco that "we are authorized to shoot you because there’s a
shoot to kill order against you, so if you are planning do so something, do it right now." 27 He
was also told that there was a standing warrant for his arrest.28 However, he was not shown any
proof when he asked for it.29 Neither was the raiding group armed with a valid search warrant. 30
According to petitioner, the search done in the boarding house was illegal. The gun seized from
him was duly licensed and covered by necessary permits. He was, however, unable to present
the documentation relative to the firearm because it was confiscated by the police. Petitioner
further lamented that when he was incarcerated, he was not allowed to engage the services of
a counsel. Neither was he allowed to see or talk to his family. 31
Petitioner contended that the police had an axe to grind against him. While still with the
Narcotics Command, he turned down a request of Col. Romulo Sales to white-wash a drug-
related investigation involving friends of the said police officer. Col. Sales was likewise subject
of a complaint filed with the Ombudsman by his wife. Col. Sales was later on appointed as the
head of the unit that conducted the search in his boarding house. 32
SPO3 Timbol, Jr. of the Narcotics Command testified that he issued to petitioner a
Memorandum Receipt dated July 1, 199333 covering the subject firearm and its ammunition.
This was upon the verbal instruction of Col. Angelito Moreno. SPO3 Timbol identified his
signature34 on the said receipt.35
Adrian Yuson, an occupant of the room adjacent to where petitioner was arrested, testified that
on July 10, 1996, two (2) policemen suddenly entered his room as he was preparing for
school.36 They grabbed his shoulder and led him out.37 During all those times, a gun was poked
at him.38 He was asked where petitioner was staying. Fearing for his life, he pointed to
petitioner’s room.39
Four (4) policemen then entered the room.40 He witnessed how they pointed a gun at
petitioner, who was clad only in his underwear.41 He also witnessed how they forcibly brought
petitioner out of his room.42 While a policeman remained near the faucet to guard petitioner,
three (3) others went back inside the room.43 They began searching the whole place. They
forcibly opened his locker,44 which yielded the subject firearm.45
RTC and CA Dispositions
On May 6, 1998, the trial court found petitioner guilty as charged, disposing as follows:
WHEREFORE, the Court hereby finds the accused guilty beyond reasonable doubt of
Violation of Section 1 of Presidential Decree No. 1866 as amended by Republic Act No.
8294 and hereby sentences him to suffer the penalty of prision correccional in its
maximum period or from 4 years, 2 months and 1 day as minimum to 6 years as
maximum and to pay the fine in the amount of Fifteen Thousand Pesos (P15,000.00).
The gun subject of this case is hereby ordered confiscated in favor of the government.
Let the same be put in trust in the hands of the Chief of the PNP.
SO ORDERED.46
Petitioner moved to reconsider47 but his motion was denied on August 27, 1998.48 He appealed
to the CA.
On May 4, 2004, the appellate court affirmed with modification the RTC disposition. The fallo of
the CA decision reads:
 Verily, the penalty imposed by the trial court upon the accused-appellant is modified
to 4 years and 2 months as minimum up to 6 years as maximum.
WHEREFORE, with the foregoing MODIFICATION as to the penalty, the decision
appealed from is hereby AFFIRMED in all other respects.
SO ORDERED.49
His motion for reconsideration50 having been denied through a Resolution dated August 3,
2004,51 petitioner resorted to the present petition under Rule 45.
Issues
Petitioner raises the following issues for Our consideration:
I. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN
AFFIRMING THE CONVICTION OF PETITIONER DESPITE THE ABSENCE OF PROOF BEYOND
REASONABLE DOUBT.
II. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF FACT AND
LAW IN SUSTAINING THE LEGALITY OF THE SEARCH AND THE VALIDITY AND
ADMISSIBILITY OF THE EVIDENCE OBTAINED THEREFROM DESPITE THE OVERWHELMING
PROOF THAT THE SAME IS THE FRUIT OF THE POISONOUS TREE.
III. THE HONORABLE COURT OF APPEALS COMMITTED SERIOUS ERRORS OF LAW IN NOT
UPHOLDING THE REGULARITY AND VALIDITY SURROUNDING THE ISSUANCE OF THE
MEMORANDUM RECEIPTS (SIC) IN FAVOR OF PETITIONER WHICH PROVES HIS
INNOCENCE OF THE CRIME CHARGE (SIC).52 (Underscoring supplied)
Our Ruling
In illegal possession of firearm and ammunition, the prosecution has the burden of proving the
twin elements of (1) the existence of the subject firearm and ammunition, and (2) the fact that
the accused who possessed or owned the same does not have the corresponding license for
it.53
The prosecution was able to discharge its burden.
The existence of the subject firearm and its ammunition was established through the testimony
of SPO2 Disuanco.54 Defense witness Yuson also identified the firearm.55 Its existence was
likewise admitted by no less than petitioner himself. 56
As for petitioner’s lack of authority to possess the firearm, Deriquito testified that a verification
of the Charter Arms Caliber .38 bearing Serial No. 52315 with the Firearms and Explosives
Division at Camp Crame revealed that the seized pistol was not issued to petitioner. It was
registered in the name of a certain Raul Palencia Salvatierra of Sampaloc, Manila. 57 As proof,
Deriquito presented a certification signed by Roque, the chief records officer of the same
office.58
The Court on several occasions ruled that either the testimony of a representative of, or a
certification from, the Philippine National Police (PNP) Firearms and Explosive Office attesting
that a person is not a licensee of any firearm would suffice to prove beyond reasonable doubt
the second element of possession of illegal firearms.59 The prosecution more than complied
when it presented both.
The certification is outside the scope of the hearsay rule.
The general rule is that a witness can testify only to those facts which he knows of his personal
knowledge; that is, which are derived from his own perception. 60 Otherwise, the testimony is
objectionable for being hearsay.61
On this score, the certification from the Firearms and Explosives Division is an exception to the
hearsay rule by virtue of Rule 130, Section 44 of the Rules of Court which provides:
Sec. 44. Entries in official records. – Entries in official records made in the performance
of his official duty by a public officer of the Philippines, or by a person in the
performance of a duty specifically enjoined by law, are prima facie evidence of the facts
therein stated.
It may be true that the contents of said certification are only prima facie evidence of the facts
stated there. However, the failure of petitioner to present controverting evidence makes the
presumption unrebutted. Thus, the presumption stands.
Petitioner, however, raises several points which he says entitles him to no less than an
acquittal.
The assessment of credibility of witnesses lies with the trial court.
First, petitioner says that the seizure of the subject firearm was invalid. The search was
conducted after his arrest and after he was taken out of the room he was occupying. 62
This contention deserves scant consideration.
Petitioner’s version of the manner and place of his arrest goes into the factual findings made by
the trial court and its calibration of the credibility of witnesses. However, as aptly put by Justice
Ynares-Santiago in People v. Rivera:63
x x x the manner of assigning values to declarations of witnesses on the witness stand is
best and most competently performed by the trial judge who had the unmatched
opportunity to observe the witnesses and assess their credibility by the
various indicia  available but not reflected on record. The demeanor of the person on the
stand can draw the line between fact and fancy or evince if the witness is telling the
truth or lying through his teeth. We have consistently ruled that when the question
 arises as to which of the conflicting versions of the prosecution and the defense is
worthy of belief, the assessment of the trial courts are generally viewed as correct and
entitled to great weight. Furthermore, in an appeal, where the culpability or innocence
of the accused depends on the issue of credibility of witnesses and the veracity of their
testimonies, findings of the trial court are given the highest degree of respect if not
finality.64 (Underscoring supplied)
The trial court found the prosecution version worthy of credence and belief. We find no
compelling reason not to accept its observation on this score.
Worth noting is the fact that petitioner is a ranking police officer who not only claims to be
highly decorated,65 but have effected a number of successful arrests66 as well. Common sense
would dictate that he must necessarily be authorized to carry a gun. We thus agree with the
Office of the Solicitor General that framing up petitioner would have been a very risky
proposition. Had the arresting officers really intended to cause the damnation of petitioner by
framing him up, they could have easily "planted" a more incriminating evidence rather than a
gun. That would have made their nefarious scheme easier, assuming that there indeed was
one.
The pieces of evidence show that petitioner is not legally authorized to possess the subject
firearm and its five (5) ammunition.
Second, petitioner insists that he is legally authorized to possess the subject firearm and its
ammunition on the basis of the Memorandum Receipt issued to him by the PNP Narcotics
Command.67
Although petitioner is correct in his submission that public officers like policemen are accorded
presumption of regularity in the performance of their official duties, 68 it is only a presumption; it
may be overthrown by evidence to the contrary. The prosecution was able to rebut the
presumption when it proved that the issuance to petitioner of the Memorandum Receipt was
anything but regular.
SPO3 Timbol, Jr. testified that he issued the Memorandum Receipt to petitioner based on the
verbal instruction of his immediate superior, Col. Moreno. 69 However, a reading of Timbol’s
testimony on cross-examination70 would reveal that there was an unusual facility by which said
receipt was issued to petitioner. Its issuance utterly lacked the usual necessary bureaucratic
constraints. Clearly, it was issued to petitioner under questionable circumstances.
Failure to offer an unlicensed firearm as evidence is not fatal provided there is competent
testimony as to its existence.
Third, petitioner claims that the subject firearm and ammunition should have been excluded as
evidence because they were not formally offered by the prosecution 71 in violation of Section 34,
Rule 132 of the Rules of Court.72
We note that petitioner contradicted himself when he argued for the validity of the
Memorandum Receipt and, at the same time, for the exclusion in evidence of the subject
firearm and its ammunition. Petitioner’s act may result to an absurd situation where the
Memorandum Receipt is declared valid, while the subject firearm and its ammunition which are
supposedly covered by the Memorandum Receipt are excluded as evidence. That would have
made the Memorandum Receipt useless.
In any case, petitioner’s contention has no leg to stand on.
Contrary to petitioner’s claim, the subject firearm73 and its five (5) live ammunition74 were
offered in evidence by the prosecution.75 Even assuming arguendo that they were not offered,
petitioner’s stance must still fail. The existence of an unlicensed firearm may be established by
testimony, even without its presentation at trial. In People v. Orehuela,76 the non-presentation
of the pistol did not prevent the conviction of the accused.
The doctrine was affirmed in the recent case of People v. Malinao.77
As previously stated, the existence of the subject firearm and its five (5) live ammunition were
established through the testimony of SPO2 Disuanco. 78 Yuson also identified said
firearm.79 Petitioner even admitted its existence.80
We hasten to add that there may also be conviction where an unlicensed firearm is presented
during trial but through inadvertence, negligence, or fortuitous event (for example, if it is lost),
it is not offered in evidence, as long as there is competent testimony as to its existence.
Penal and civil liabilities
Petitioner was charged with the crime of illegal possession of firearms and ammunition under
the first paragraph of Section 1 of P.D. No. 1866, as amended. It provides that "[t]he penalty
of reclusion temporal in its maximum period to reclusion perpetua shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any firearm, part
of firearm, ammunition or machinery, tool or instrument used or intended to be used in the
manufacture of any firearm or ammunition."
P.D. No. 1866, as amended, was the governing law at the time petitioner committed the offense
on July 10, 1996. However, R.A. No. 8294 amended P.D. No. 1866 on July 6, 1997, 81 during the
pendency of the case with the trial court. The present law now states:
SECTION 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of
Firearms or Ammunition or Instruments Used or Intended to be Used in the Manufacture
of Firearms or Ammunition. – The penalty of prision correccional in its maximum period
and a fine of not less than Fifteen Thousand Pesos (P15,000) shall be imposed upon any
person who shall unlawfully manufacture, deal in, acquire, dispose, or possess any low-
powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar
firepower, part of firearm, ammunition, or machinery, tool or instrument used or
 intended to be used in the manufacture of any firearm or ammunition: Provided, That
no other crime was committed. (Underscoring supplied)
As a general rule, penal laws should not have retroactive application, lest they acquire the
character of an ex post facto law.82 An exception to this rule, however, is when the law is
advantageous to the accused. According to Mr. Chief Justice Araullo, this is "not as a right" of
the offender, "but founded on the very principles on which the right of the State to punish and
the commination of the penalty are based, and regards it not as an exception based on political
considerations, but as a rule founded on principles of strict justice." 83
Although an additional fine of P15,000.00 is imposed by R.A. No. 8294, the same is still
advantageous to the accused, considering that the imprisonment is lowered to prision
correccional in its maximum period84 from reclusion temporal in its maximum period
to reclusion perpetua85 under P.D. No. 1866.
Applying the Indeterminate Sentence Law, prision correccional maximum which ranges from
four (4) years, two (2) months and one (1) day to six (6) years, is the prescribed penalty and will
form the maximum term of the indeterminate sentence. The minimum term shall be one
degree lower, which is prision correccional in its medium period (two [2] years, four [4] months
and one [1] day to four [4] years and two [2] months). 86 Hence, the penalty imposed by the CA
is correct. The penalty of four (4) years and two (2) months of prision correccional medium, as
minimum term, to six (6) years of prision correccional maximum, as maximum term, is in
consonance with the Court’s ruling in Gonzales v. Court of Appeals87 and Barredo v. Vinarao.88
As to the subject firearm and its five (5) live ammunition, their proper disposition should be
made under Article 45 of the Revised Penal Code89 which provides, among others, that the
proceeds and instruments or tools of the crime shall be confiscated and forfeited in favor of the
government.
WHEREFORE, the Decision of the Court of Appeals dated May 4, 2004 is AFFIRMED in full.
SO ORDERED.

G.R. No. 182239               March 16, 2011

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee,
vs.
HERMIE M. JACINTO, Accused-Appellant.
DECISION
PEREZ, J.:
Once again, we recite the time-honored principle that the defense of alibi cannot prevail over
the victim’s positive identification of the accused as the perpetrator of the crime. 1 For it to
prosper, the court must be convinced that there was physical impossibility on the part of the
accused to have been at the locus criminis at the time of the commission of the crime.2
Nevertheless, a child in conflict with the law, whose judgment of conviction has become final
and executory only after his disqualification from availing of the benefits of suspended
sentence on the ground that he/she has exceeded the age limit of twenty-one (21) years, shall
still be entitled to the right to restoration, rehabilitation, and reintegration in accordance with
Republic Act No. 9344, otherwise known as "An Act Establishing a Comprehensive Juvenile
Justice and Welfare System, Creating the Juvenile Justice and Welfare Council under the
Department of Justice, Appropriating Funds Therefor and for Other Purposes."
Convicted for the rape of five-year-old AAA, 3 appellant Hermie M. Jacinto seeks before this
Court the reversal of the judgment of his conviction.4
The Facts
In an Information dated 20 March 20035 filed with the Regional Trial Court and docketed as
Criminal Case No. 1679-13-141[1],6 appellant was accused of the crime of RAPE allegedly
committed as follows:
That on or about the 28th day of January, 2003 at about 7:00 o’clock in the evening more or
less, at barangay xxx, municipality of xxx, province of xxx and within the jurisdiction of this
Honorable Court, [Hermie M. Jacinto], with lewd design did then and there willfully, unlawfully
and feloniously had carnal knowledge with one AAA, a five-year old minor child.
CONTRARY TO LAW, with the qualifying/aggravating circumstance of minority, the victim being
only five years old.7
On 15 July 2003, appellant entered a plea of not guilty. 8 During pre-trial,9 the defense admitted
the existence of the following documents: (1) birth certificate of AAA, showing that she was
born on 3 December 1997; (2) police blotter entry on the rape incident; and (3) medical
certificate, upon presentation of the original or upon identification thereof by the physician.
Trial ensued with the prosecution and the defense presenting witnesses to prove their
respective versions of the story.
Evidence for the Prosecution
The testimonies of AAA,10 her father FFF,11 and rebuttal witness Julito Apiki [Julito]12 may be
summarized in the following manner:
FFF and appellant have been neighbors since they were born. FFF’s house is along the road.
That of appellant lies at the back approximately 80 meters from FFF. To access the road,
appellant has to pass by FFF’s house, the frequency of which the latter describes to be "every
minute [and] every hour." Also, appellant often visits FFF because they were close friends. He
bore no grudge against appellant prior to the incident.13
AAA likewise knows appellant well. She usually calls him kuya. She sees him all the time –
playing at the basketball court near her house, fetching water, and passing by her house on his
way to the road. She and appellant used to be friends until the incident.14
At about past 6 o’clock in the evening of 28 January 2003, FFF sent his eight-year-old daughter
CCC to the store of Rudy Hatague to buy cigarettes. AAA followed CCC. When CCC returned
without AAA, FFF was not alarmed. He thought she was watching television at the house of her
aunt Rita Lingcay [Rita].15
Julito went to the same store at around 6:20 in the evening to buy a bottle of Tanduay
Rum.16 At the store, he saw appellant place AAA on his lap.17 He was wearing sleeveless shirt
and a pair of short pants.18 All of them left the store at the same time.19 Julito proceeded to the
house of Rita to watch television, while appellant, who held the hand of AAA, went towards the
direction of the "lower area or place."20
AAA recalled that appellant was wearing a chaleko (sando) and a pair of short pants21 when he
held her hand while on the road near the store.22 They walked towards the rice field near the
house of spouses Alejandro and Gloria Perocho [the Perochos]. 23 There he made her lie down
on harrowed ground, removed her panty and boxed her on the chest. 24 Already half-naked from
waist down,25 he mounted her, and, while her legs were pushed apart, pushed his penis into her
vagina and made a push and pull movement.26 She felt pain and cried.27 Afterwards, appellant
left and proceeded to the Perochos.28 She, in turn, went straight home crying.29
FFF heard AAA crying and calling his name from downstairs.30 She was without slippers.31 He
found her face greasy.32 There was mud on her head and blood was oozing from the back of her
head.33 He checked for any injury and found on her neck a contusion that was already turning
black.34 She had no underwear on and he saw white substance and mud on her vagina. 35 AAA
told him that appellant brought her from the store36 to the grassy area at the back of the house
of the Perochos;37 that he threw away her pair of slippers, removed her panty, choked her and
boxed her breast;38 and that he proceeded thereafter to the Perochos.39
True enough, FFF found appellant at the house of the Perochos. 40 He asked the appellant what
he did to AAA.41 Appellant replied that he was asked to buy rum at the store and that AAA
followed him.42 FFF went home to check on his daughter,43 afterwhich, he went back to
appellant, asked again,44 and boxed him.45
Meanwhile, at around 7:45 in the evening of even date, Julito was still watching television at
the house of Rita.46 AAA and her mother MMM arrived.47 AAA was crying.48 Julito pitied her,
embraced her, and asked what happened to her, to which she replied that appellant raped
her.49 Julito left and found appellant at the Perochos.50 Julito asked appellant, "Bads, did you
really rape the child, the daughter of [MMM]?" but the latter ignored his question. 51 Appellant’s
aunt, Gloria, told appellant that the policemen were coming to which the appellant responded,
"Wait a minute because I will wash the dirt of my elbow (sic) and my knees." 52 Julito did found
the elbows and knees of appellant with dirt.53
On that same evening, FFF and AAA proceeded to the police station to have the incident
blottered.54 FFF also had AAA undergo a physical check up at the municipal health center. 55 Dr.
Bernardita M. Gaspar, M.D., Rural Health Physician, issued a medical certificate 56 dated 29
January 2003. It reads:
Injuries seen are as follows:
1. Multiple abrasions with erythema along the neck area.
2. Petechial hemorrhages on both per-orbital areas.
3. Hematoma over the left upper arm, lateral area
4. Hematoma over the upper anterior chest wall, midclavicular line
5. Abrasion over the posterior trunk, paravertebral area
6. Genital and peri-anal area soiled with debris and whitish mucoid-like material
7. Introitus is erythematous with minimal bleeding
8. Hymenal lacerations at the 5 o’clock and 9 o’clock position
Impression
MULTIPLE SOFT TISSUE INJURIES
HYMENAL LACERATIONS
Upon the recommendation of Dr. Gaspar,57 AAA submitted herself to another examination at
the provincial hospital on the following day. Dr. Christine Ruth B. Micabalo, Medical Officer III of
the provincial hospital, attended to her and issued a medico-legal certificate dated 29 January
2003,58 the pertinent portion of which reads:
P.E. = Findings is consistent with Dr. Bernardita M. Gaspar findings except No. 6 and 7 there is
no bleeding in this time of examination. (sic)59
Evidence for the Defense
Interposing the defense of alibi, appellant gave a different version of the story. To corroborate
his testimony, Luzvilla Balucan [Luzvilla] and his aunt Gloria took the witness stand to affirm
that he was at the Perochos at the time of the commission of the crime. 60 Luzvilla even went
further to state that she actually saw Julito, not appellant, pick up AAA on the road. 61 In
addition, Antonia Perocho [Antonia], sister-in-law of appellant’s aunt, Gloria, 62 testified on the
behavior of Julito after the rape incident was revealed. 63
Appellant claimed that he lives with his aunt, not with his parents whose house stands at the
back of FFF’s house.64 He denied that there was a need to pass by the house of FFF in order to
access the road or to fetch water.65 He, however, admitted that he occasionally worked for
FFF,66 and whenever he was asked to buy something from the store, AAA always approached
him.67
At about 8 o’clock in the morning of 28 January 2003, appellant went to the Perochos to attend
a birthday party. At 6:08 in the evening, while the visitors, including appellant and his uncle
Alejandro Perocho [Alejandro], were gathered together in a drinking session, appellant’s uncle
sent him to the store to buy Tanduay Rum. Since the store is only about 20 meters from the
house, he was able to return after three (3) minutes. He was certain of the time because he had
a watch .68
Appellant’s aunt, Gloria, the lady of the house, confirmed that he was in her house attending
the birthday party; and that appellant went out between 6 and 7 in the evening to buy a bottle
of Tanduay from the store. She recalled that appellant was back around five (5) minutes later.
She also observed that appellant’s white shorts and white sleeveless shirt were clean. 69
At 6:30 in the evening,70 Luzvilla, who was also at the party, saw appellant at the kitchen having
a drink with his uncle Alejandro and the rest of the visitors.71 She went out to relieve herself at
the side of the tree beside the road next to the house of the Perochos.72 From where she was,
she saw Julito, who was wearing black short pants and black T-shirt, carry AAA. 73 AAA’s face was
covered and she was wiggling.74 This did not alarm her because she thought it was just a
game.75 Meanwhile, appellant was still in the kitchen when she returned. 76 Around three (3)
minutes later, Luzvilla saw Julito, now in a white T-shirt, 77 running towards the house of
Rita.78 AAA was slowly following behind.79 Luzvilla followed them.80 Just outside the house,
Julito embraced AAA and asked what the appellant did to her.81 The child did not answer.82
Luzvilla also followed FFF to the Perochos. She witnessed the punching incident and testified
that appellant was twice boxed by FFF. According to her, FFF tapped the left shoulder of the
appellant, boxed him, and left. FFF came in the second time and again boxed appellant. This
time, he had a bolo pointed at appellant. Appellant’s uncle Alejandro, a barangay councilor, and
another Civilian Voluntary Organization (CVO) member admonished FFF. 83
On sur-rebuttal, Antonia testified that, at 7 o’clock in the evening, she was watching the
television along with other people at the house of Rita. Around 7:10, Julito, who was wearing
only a pair of black short pants without a shirt on, entered the house drunk. He paced back and
forth. After 10 minutes, AAA came in crying. Julito tightly embraced AAA and asked her what
happened. AAA did not answer. Upon Antonia’s advice, Julito released her and went out of the
house.84
Appellant further testified that at past 7 o’clock in the evening, FFF arrived, pointed a finger at
him, brandished a bolo, and accused him of molesting AAA. FFF left but returned at around 8
o’clock in the evening. This time, he boxed appellant and asked again why he molested his
daughter.85
On 26 March 2004, the Regional Trial Court rendered its decision, 86 the dispositive portion of
which reads:
WHEREFORE, finding accused Hermie M. Jacinto guilty beyond reasonable doubt of rape
committed upon a 5-year old girl, the court sentences him to death and orders him to pay
[AAA] P75,000.000 as rape indemnity and P50,000.00 as moral damages. With costs 87
The defense moved to reopen trial for reception of newly discovered evidence stating that
appellant was apparently born on 1 March 1985 and that he was only seventeen (17) years old
when the crime was committed on 28 January 2003.88 The trial court appreciated the evidence
and reduced the penalty from death to reclusion perpetua.89 Thus:
WHEREFORE, the judgment of the court imposing the death penalty upon the accused is
amended in order to consider the privileged mitigating circumstance of minority. The penalty
impos[a]ble upon the accused, therefore[,] is reduced to reclusion perpetua. xxx
Appealed to this Court, the case was transferred to the Court of Appeals for its disposition in
view of the ruling in People v. Mateo and the Internal Rules of the Supreme Court allowing an
intermediate review by the Court of Appeals of cases where the penalty imposed is death,
reclusion perpetua, or life imprisonment.90
On 29 August 2007, the Court of Appeals AFFIRMED the decision of the trial court with the
following MODIFICATIONS:
xxx that Hermie M. Jacinto should suffer the Indeterminate penalty of from six (6) years and
one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen (17) and four (4)
months of reclusion temporal, as maximum. Appellant Hermie M. Jacinto is ordered to
indemnify the victim in the sum of P75,000.00 as civil indemnity, P75,000.00 as moral damages,
and P25,000.00 as exemplary damages and to pay the costs. 91
On 19 November 2007, the Court of Appeals gave due course to the appellant’s Notice of
Appeal.92 This Court required the parties to simultaneously file their respective supplemental
briefs.93 Both parties manifested that they have exhaustively discussed their positions in their
respective briefs and would no longer file any supplement.94
Before the Court of Appeals, appellant argued that "THE COURT A QUO GRAVELY ERRED IN
CONVICTING HEREIN ACCUSED-APPELLANT GUILTY BEYOND REASONABLE DOUBT OF
RAPE"95 by invoking the principle that "if the inculpatory facts and circumstances are capable of
two or more reasonable explanations, one of which is consistent with the innocence of the
accused and the other with his guilt, then the evidence does not pass the test of moral certainty
and will not suffice to support a conviction."96
Our Ruling
We sustain the judgment of conviction.
In the determination of the innocence or guilt of a person accused of rape, we consider the
three well-entrenched principles:
(1) an accusation for rape can be made with facility; it is difficult to prove but more difficult for
the accused, though innocent, to disprove; (2) in view of the intrinsic nature of the crime of
rape in which only two persons are usually involved, the testimony of the complainant must be
scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on
its own merits, and cannot be allowed to draw strength from the weakness of the evidence for
the defense.97
Necessarily, the credible, natural, and convincing testimony of the victim may be sufficient to
convict the accused.98 More so, when the testimony is supported by the medico-legal findings
of the examining physician.99
Further, the defense of alibi cannot prevail over the victim’s positive identification of the
perpetrator of the crime,100 except when it is established that it was physically impossible for
the accused to have been at the locus criminis at the time of the commission of the crime.101
I
A man commits rape by having carnal knowledge of a child under twelve (12) years of age even
in the absence of any of the following circumstances: (a) through force, threat or intimidation;
(b) when the offended party is deprived of reason or otherwise unconscious; or (c) by means of
fraudulent machination or grave abuse of authority.102
That the crime of rape has been committed is certain. The vivid narration of the acts
culminating in the insertion of appellant’s organ into the vagina of five-year-old AAA and the
medical findings of the physicians sufficiently proved such fact.
AAA testified:
PROS. OMANDAM:
xxxx
Q You said Hermie laid you on the ground, removed your panty and boxed you, what
else did he do to you?
A He mounted me.
Q When Hermie mounted you, was he facing you?
A Yes.
Q When he mounted you what did he do, did he move?
 A He moved his ass, he made a push and pull movement.
Q When he made a push and pull movement, how were your legs positioned?
A They were apart.
Q Who pushed them apart?
A Hermie.
Q Did Hermie push anything at you?
A Yes.
Q What was that?
A His penis.
Q Where did he push his penis?
A To my vagina.
Q Was it painful?
A Yes.
Q What was painful?
A My vagina.
Q Did you cry?
A Yes.103
The straightforward and consistent answers to the questions, which were phrased and re-
phrased in order to test that AAA well understood the information elicited from her, said it all –
she had been raped. When a woman, more so a minor, says so, she says in effect all that is
essential to show that rape was committed.104 Significantly, youth and immaturity are normally
badges of truth and honesty.105
Further, the medical findings and the testimony of Dr. Micabalo 106 revealed that the hymenal
lacerations at 5 o’clock and 9 o’clock positions could have been caused by the penetration of an
object; that the redness of the introitus could have been "the result of the repeated battering
of the object;" and that such object could have been an erect male organ. 107
The credible testimony of AAA corroborated by the physician’s finding of penetration
conclusively established the essential requisite of carnal knowledge. 108
II
The real identity of the assailant and the whereabouts of the appellant at the time of the
commission of the crime are now in dispute.
The defense would want us to believe that it was Julito who defiled AAA, and that appellant
was elsewhere when the crime was committed.109
We should not, however, overlook the fact that a victim of rape could readily identify her
assailant, especially when he is not a stranger to her, considering that she could have a good
look at him during the commission of the crime.110 AAA had known appellant all her life.
Moreover, appellant and AAA even walked together from the road near the store to the situs
criminus111 that it would be impossible for the child not to recognize the man who held her
hand and led her all the way to the rice field.
We see no reason to disturb the findings of the trial court on the unwavering testimony of AAA.
The certainty of the child, unusually intelligent for one so young, that it was accused, whom she
called "kuya" and who used to play basketball and fetch water near their house, and who was
wearing a sleeveless shirt and shorts at the time he raped her, was convincing and persuasive.
The defense attempted to impute the crime to someone else – one Julito Apiki, but the child,
on rebuttal, was steadfast and did not equivocate, asserting that it was accused who is younger,
and not Julito, who is older, who molested her.112
In a long line of cases, this Court has consistently ruled that the determination by the trial court
of the credibility of the witnesses deserves full weight and respect considering that it has "the
opportunity to observe the witnesses’ manner of testifying, their furtive glances, calmness,
sighs and the scant or full realization of their oath," 113 unless it is shown that material facts and
circumstances have been "ignored, overlooked, misconstrued, or misinterpreted." 114
Further, as correctly observed by the trial court:
xxx His and his witness’ attempt to throw the court off the track by imputing the crime to
someone else is xxx a vain exercise in view of the private complainant’s positive identification of
accused and other corroborative circumstances. Accused also admitted that on the same
evening, Julito Apiki, the supposed real culprit, asked him "What is this incident, Pare?", thus
corroborating the latter’s testimony that he confronted accused after hearing of the incident
from the child."115
On the other hand, we cannot agree with the appellant that the trial court erred in finding his
denial and alibi weak despite the presentation of witnesses to corroborate his testimony.
Glaring inconsistencies were all over their respective testimonies that even destroyed the
credibility of the appellant’s very testimony.
Appellant testified that it was his uncle Alejandro Perocho who sent him to store to buy
Tanduay; that he gave the bottle to his uncle; and that they had already been drinking long
before he bought Tanduay at the store.
This was contradicted by the testimony of his aunt Gloria, wife of his uncle Alejandro. On cross-
examination, she revealed that her husband was not around before, during, and after the rape
incident because he was then at work.116 He arrived from work only after FFF came to their
house for the second time and boxed appellant.117 It was actually the fish vendor, not her
husband, who asked appellant to buy Tanduay.118 Further, the drinking session started only
after the appellant’s errand to the store.119
Neither was the testimony of Luzvilla credible enough to deserve consideration.
Just like appellant, Luzvilla testified that Alejandro joined the drinking session. This is contrary
to Gloria’s statement that her husband was at work.
Luzvilla’s testimony is likewise inconsistent with that of sur-rebuttal witness Antonia Perocho.
Antonia recalled that Julito arrived without a shirt on. This belied Luzvilla’s claim that Julito
wore a white shirt on his way to the house of Rita. In addition, while both the prosecution, as
testified to by AAA and Julito, and the defense, as testified to by Gloria, were consistent in
saying that appellant wore a sleeveless shirt, Luzvilla’s recollection differ in that Julito wore a T-
shirt (colored black and later changed to white), and, thus, a short-sleeved shirt.
Also, contrary to Luzvilla’s story that she saw AAA walking towards Rita’s house three (3)
minutes after she returned to the Perochos at 6:38 in the evening, Antonia recalled that AAA
arrived at the house of Rita at 7:30. In this respect, we find the trial court’s appreciation in
order. Thus:
xxx. The child declared that after being raped, she went straight home, crying, to tell her father
that Hermie had raped her. She did not first drop into the house of Lita Lingkay to cry among
strangers who were watching TV, as Luzvilla Balucan would have the court believe. When the
child was seen at the house of Lita Lingkay by Julito Apiki and Luzvilla Balucan, it was only later,
after she had been brought there by her mother Brenda so that Lita Lingkay could take a look at
her ˗ just as Julito Apiki said.120
Above all, for alibi to prosper, it is necessary that the corroboration is credible, the same having
been offered preferably by disinterested witnesses. The defense failed thuswise. Its witnesses
cannot qualify as such, "they being related or were one way or another linked to each other." 121
Even assuming for the sake of argument that we consider the corroborations on his
whereabouts, still, the defense of alibi cannot prosper.
We reiterate, time and again, that the court must be convinced that it would be physically
impossible for the accused to have been at the locus criminis at the time of the commission of
the crime.122
Physical impossibility refers to distance and the facility of access between the situs criminis and
the location of the accused when the crime was committed. He must demonstrate that he was
so far away and could not have been physically present at the scene of the crime and its
immediate vicinity when the crime was committed.123
In People v. Paraiso,124 the distance of two thousand meters from the place of the commission
of the crime was considered not physically impossible to reach in less than an hour even by
foot.125 Inasmuch as it would take the accused not more than five minutes to rape the victim,
this Court disregarded the testimony of the defense witness attesting that the accused was fast
asleep when she left to gather bamboo trees and returned several hours after. She could have
merely presumed that the accused slept all throughout. 126
In People v. Antivola,127 the testimonies of relatives and friends corroborating that of the
appellant that he was in their company at the time of the commission of the crime were
likewise disregarded by this Court in the following manner:
Ruben Nicolas, the appellant’s part-time employer, and Marites Capalad, the appellant’s sister-
in-law and co-worker, in unison, vouched for the appellant’s physical presence in the fishpond
at the time Rachel was raped. It is, however, an established fact that the appellant’s house
where the rape occurred, was a stone’s throw away from the fishpond. Their claim that the
appellant never left their sight the entire afternoon of December 4, 1997 is unacceptable. It
was impossible for Marites to have kept an eye on the appellant for almost four hours, since
she testified that she, too, was very much occupied with her task of counting and recording the
fishes being harvested. Likewise, Mr. Nicolas, who, admittedly was 50 meters away from the
fishpond, could not have focused his entire attention solely on the appellant. It is, therefore,
not farfetched that the appellant easily sneaked out unnoticed, and along the way inveigled
the victim, brought her inside his house and ravished her, then returned to the fishpond as if
he never left.128 (Emphasis supplied.)1avvphi1
As in the cases above cited, the claim of the defense witnesses that appellant never left their
sight, save from the 5-minute errand to the store, is contrary to ordinary human experience.
Moreover, considering that the farmland where the crime was committed is just behind the
house of the Perochos, it would take appellant only a few minutes to bring AAA from the road
near the store next to the Perochos down the farmland and consummate the crime. As
correctly pointed out by the Court of Appeals, appellant could have committed the rape after
buying the bottle of Tanduay and immediately returned to his uncle’s house. 129 Unfortunately,
the testimonies of his corroborating witnesses even bolstered the fact that he was within the
immediate vicinity of the scene of the crime.130
Clearly, the defense failed to prove that it was physically impossible for appellant to have been
at the time and place of the commission of the crime.
All considered, we find that the prosecution has sufficiently established the guilt of the
appellant beyond reasonable doubt.
III
In the determination of the imposable penalty, the Court of Appeals correctly considered
Republic Act No. 9344 (Juvenile Justice and Welfare Act of 2006) despite the commission of the
crime three (3) years before it was enacted on 28 April 2006.
We recognize its retroactive application following the rationale elucidated in People v. Sarcia:131
[Sec. 68 of Republic Act No. 9344]132 allows the retroactive application of the Act to those who
have been convicted and are serving sentence at the time of the effectivity of this said Act, and
who were below the age of 18 years at the time of the commission of the offense. With more
reason, the Act should apply to this case wherein the conviction by the lower court is still
under review.133 (Emphasis supplied.)
Criminal Liability; Imposable Penalty
Sec. 6 of Republic Act No. 9344 exempts a child above fifteen (15) years but below eighteen
(18) years of age from criminal liability, unless the child is found to have acted with
discernment, in which case, "the appropriate proceedings" in accordance with the Act shall be
observed.134
We determine discernment in this wise:
Discernment is that mental capacity of a minor to fully appreciate the consequences of his
unlawful act.135 Such capacity may be known and should be determined by taking into
consideration all the facts and circumstances afforded by the records in each case. 136
xxx The surrounding circumstances must demonstrate that the minor knew what he was doing
and that it was wrong.137 Such circumstance includes the gruesome nature of the crime and the
minor’s cunning and shrewdness.138
In the present case, we agree with the Court of Appeals that: "(1) choosing an isolated and dark
place to perpetrate the crime, to prevent detection[;] and (2) boxing the victim xxx, to weaken
her defense" are indicative of then seventeen (17) year-old appellant’s mental capacity to fully
understand the consequences of his unlawful action.139
Nonetheless, the corresponding imposable penalty should be modified.
The birth certificate of AAA140 shows that she was born on 3 December 1997. Considering that
she was only five (5) years old when appellant defiled her on 28 January 2003, the law
prescribing the death penalty when rape is committed against a child below seven (7) years
old141 applies.
The following, however, calls for the reduction of the penalty: (1) the prohibition against the
imposition of the penalty of death in accordance with Republic Act No. 9346; 142 and (2) the
privileged mitigating circumstance of minority of the appellant, which has the effect of reducing
the penalty one degree lower than that prescribed by law, pursuant to Article 68 of the Revised
Penal Code.143
Relying on People v. Bon,144 the Court of Appeals excluded death from the graduation of
penalties provided in Article 71 of the Revised Penal Code.145 Consequently, in its appreciation
of the privileged mitigating circumstance of minority of appellant, it lowered the penalty one
degree from reclusion perpetua and sentenced appellant to suffer the indeterminate penalty of
six (6) years and one (1) day to twelve (12) years of prision mayor, as minimum, to seventeen
(17) years and four (4) months of reclusion temporal, in its medium period, as maximum.146
We differ.
In a more recent case,147 the Court En Banc, through the Honorable Justice Teresita J. Leonardo-
de Castro, clarified:
Under Article 68 of the Revised Penal Code, when the offender is a minor under 18 years, the
penalty next lower than that prescribed by law shall be imposed, but always in the proper
period. However, for purposes of determining the proper penalty because of the privileged
mitigating circumstance of minority, the penalty of death is still the penalty to be reckoned
with. Thus, the proper imposable penalty for the accused-appellant is reclusion
perpetua.148 (Emphasis supplied.)
Accordingly, appellant should be meted the penalty of reclusion perpetua.
Civil Liability
We have consistently ruled that:
The litmus test xxx in the determination of the civil indemnity is the heinous character of the
crime committed, which would have warranted the imposition of the death penalty, regardless
of whether the penalty actually imposed is reduced to reclusion perpetua.149
Likewise, the fact that the offender was still a minor at the time he committed the crime has no
bearing on the gravity and extent of injury suffered by the victim and her family. 150 The
respective awards of civil indemnity and moral damages in the amount of ₱75,000.00 each are,
therefore, proper.151
Accordingly, despite the presence of the privileged mitigating circumstance of minority which
effectively lowered the penalty by one degree, we affirm the damages awarded by the Court of
Appeals in the amount of ₱75,000.00 as civil indemnity and ₱75,000.00 as moral damages. And,
consistent with prevailing jurisprudence,152 the amount of exemplary damages should be
increased from ₱25,000.00 to ₱30,000.00.
Automatic Suspension of Sentence; Duration; Appropriate Disposition after the Lapse of the
Period of Suspension of Sentence
Republic Act No. 9344 warrants the suspension of sentence of a child in conflict with the law
notwithstanding that he/she has reached the age of majority at the time the judgment of
conviction is pronounced. Thus:
SEC. 38. Automatic Suspension of Sentence. - Once the child who is under eighteen (18) years of
age at the time of the commission of the offense is found guilty of the offense charged, the
court shall determine and ascertain any civil liability which may have resulted from the offense
committed. However, instead of pronouncing the judgment of conviction, the court shall place
the child in conflict with the law under suspended sentence, without need of
application: Provided, however, That suspension of sentence shall still be applied even if the
juvenile is already eighteen (18) years of age or more at the time of the pronouncement of
his/her guilt. (Emphasis supplied.)
xxxx
Applying Declarador v. Gubaton,153 which was promulgated on 18 August 2006, the Court of
Appeals held that, consistent with Article 192 of Presidential Decree No. 603, as
amended,154 the aforestated provision does not apply to one who has been convicted of an
offense punishable by death, reclusion perpetua or life imprisonment.155
Meanwhile, on 10 September 2009, this Court promulgated the decision
in Sarcia,156 overturning the ruling in Gubaton. Thus:
The xxx provision makes no distinction as to the nature of the offense committed by the child in
conflict with the law, unlike P.D. No. 603 and A.M. No. 02-1-18-SC. The said P.D. and Supreme
Court (SC) Rule provide that the benefit of suspended sentence would not apply to a child in
conflict with the law if, among others, he/she has been convicted of an offense punishable by
death, reclusion perpetua or life imprisonment. In construing Sec. 38 of R.A. No. 9344, the
Court is guided by the basic principle of statutory construction that when the law does not
distinguish, we should not distinguish. Since R.A. No. 9344 does not distinguish between a
minor who has been convicted of a capital offense and another who has been convicted of a
lesser offense, the Court should also not distinguish and should apply the automatic suspension
of sentence to a child in conflict with the law who has been found guilty of a heinous crime. 157
The legislative intent reflected in the Senate deliberations158 on Senate Bill No. 1402 (Juvenile
Justice and Delinquency Prevention Act of 2005) further strengthened the new position of this
Court to cover heinous crimes in the application of the provision on the automatic suspension
of sentence of a child in conflict with the law. The pertinent portion of the deliberation reads:
If a mature minor, maybe 16 years old to below 18 years old is charged, accused with, or may
have committed a serious offense, and may have acted with discernment, then the child could
be recommended by the Department of Social Welfare and Development (DSWD), by the Local
Council for the Protection of Children (LCPC), or by [Senator Miriam Defensor-Santiago’s]
proposed Office of Juvenile Welfare and Restoration to go through a judicial proceeding;
but the welfare, best interests, and restoration of the child should still be a primordial or
primary consideration. Even in heinous crimes, the intention should still be the child’s
restoration, rehabilitation and reintegration. xxx (Italics supplied in Sarcia.)159
On 24 November 2009, the Court En Banc promulgated the Revised Rule on Children in Conflict
with the Law, which reflected the same position.160
These developments notwithstanding, we find that the benefits of a suspended sentence can
no longer apply to appellant. The suspension of sentence lasts only until the child in conflict
with the law reaches the maximum age of twenty-one (21) years. 161 Section 40162 of the law and
Section 48163 of the Rule are clear on the matter. Unfortunately, appellant is now twenty-five
(25) years old.
Be that as it may, to give meaning to the legislative intent of the Act, the promotion of the
welfare of a child in conflict with the law should extend even to one who has exceeded the age
limit of twenty-one (21) years, so long as he/she committed the crime when he/she was still a
child. The offender shall be entitled to the right to restoration, rehabilitation and reintegration
in accordance with the Act in order that he/she is given the chance to live a normal life and
become a productive member of the community. The age of the child in conflict with the law at
the time of the promulgation of the judgment of conviction is not material. What matters is that
the offender committed the offense when he/she was still of tender age.
Thus, appellant may be confined in an agricultural camp or any other training facility in
accordance with Sec. 51 of Republic Act No. 9344. 164
Sec. 51. Confinement of Convicted Children in Agricultural Camps and Other Training Facilities. –
A child in conflict with the law may, after conviction and upon order of the court, be made to
serve his/her sentence, in lieu of confinement in a regular penal institution, in an agricultural
camp and other training facilities that may be established, maintained, supervised and
controlled by the BUCOR, in coordination with the DSWD.
Following the pronouncement in Sarcia,165 the case shall be remanded to the court of origin to
effect appellant’s confinement in an agricultrual camp or other training facility.
WHEREFORE, the Decision dated 29 August 2007 of the Court of Appeals in CA-G.R. CR HC No.
00213 finding appellant Hermie M. Jacinto guilty beyond reasonable doubt of qualified rape
is AFFIRMED with the following MODIFICATIONS: (1) the death penalty imposed on the
appellant is reduced to reclusion perpetua; and (2) appellant is ordered to pay the victim
P75,000.00 as civil indemnity, P75,000.00 as moral damages, and P30,000.00 as exemplary
damages. The case is hereby REMANDED to the court of origin for its appropriate action in
accordance with Section 51 of Republic Act No. 9344.
SO ORDERED.

G.R. No. 170308             March 7, 2008

GALO MONGE, petitioner,
vs.
PEOPLE OF THE PHILIPPINES, respondent.
RESOLUTION
TINGA, J.:
This is a Petition for Review1 under Rule 45 of the Rules of Court whereby petitioner Galo
Monge (petitioner) assails the Decision2 of the Court of Appeals dated 28 June 2005 which
affirmed his conviction as well as the discharge of accused Edgar Potencio (Potencio) as a state
witness.
The factual antecedents follow. On 20 July 1994, petitioner and Potencio were found by
barangay tanods Serdan and Molina in possession of and transporting three (3) pieces of
mahogany lumber in Barangay Santo Domingo, Iriga City. Right there and then, the tanods
demanded that they be shown the requisite permit and/or authority from the Department of
Environment and Natural Resources (DENR) but neither petitioner nor Potencio was able to
produce any.3 Petitioner fled the scene in that instant whereas Potencio was brought to the
police station for interrogation, and thereafter, to the DENR-Community Environment and
Natural Resources Office (DENR-CENRO).4 The DENR-CENRO issued a seizure receipt for the
three pieces of lumber indicating that the items, totaling 77 board feet of mahogany valued
at P1,925.00, had been seized from Potencio.5 Later on, petitioner was arrested, but Potencio’s
whereabouts had been unknown since the time of the seizure6 until he surfaced on 3 January
1998.7
An information was filed with the Regional Trial Court of Iriga City, Branch 35 charging
petitioner and Potencio with violation of Section 688 of Presidential Decree (P.D.) No. 705,9 as
amended by Executive Order (E.O.) No. 277, series of 1997. The inculpatory portion of the
information reads:
That on or about the 20th day of [July 1994], at about 9:30 o’clock in the morning, in
Barangay Sto. Domingo, Iriga City, Philippines and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring, confederating with each other,
without any authority of law, nor armed with necessary permit/license or other
documents, with intent to gain, did then and there willfully, unlawfully and feloniously,
transport and have in their possession three (3) pieces of Mahogany of assorted
[dimension] with a[n] appropriate volume of seventy-seven (77) board feet or point
eighteen (0.18) cubic meter with a total market value of P1,925.00, Philippine currency,
to the damage and prejudice of the DENR in the aforesaid amount.
CONTRARY TO LAW.10
At the 26 November 1996 arraignment, petitioner entered a negative plea. 11
Trial ensued. On 17 June 1997, Serdan testified on the circumstances of the apprehension but
for failing to appear in court for cross examination, his testimony was stricken out. 12 On 16
January 1998, Potencio was discharged to be used as a state witness on motion of the
prosecutor.13 Accordingly, he testified on the circumstances of the arrest but claimed that for a
promised fee he was merely requested by petitioner, the owner of the log, to assist him in
hauling the same down from the mountain. Potencio’s testimony was materially corroborated
by Molina.14 Petitioner did not contest the allegations, except that it was not he but Potencio
who owned the lumber. He lamented that contrary to what Potencio had stated in court, it was
the latter who hired him to bring the log from the site to the sawmill where the same was to be
sawn into pieces.15
The trial court found petitioner guilty as charged. Petitioner was imposed nine (9) years, four
(4) months and one (1) day to ten (10) years and eight (8) months of prision mayor in its
medium and maximum periods and ordered to pay the costs.16
Aggrieved, petitioner elevated the case to the Court of Appeals where he challenged the
discharge of Potencio as a state witness on the ground that the latter was not the least guilty of
the offense and that there was no absolute necessity for his testimony. 17 The appellate court
dismissed this challenge and affirmed the findings of the trial court. However, it modified the
penalty to an indeterminate prison sentence of six (6) years of prision correccional as minimum
to ten (10) years and eight (8) months of prision mayor as maximum.18 His motion for
reconsideration was denied, hence the present appeal whereby petitioner reiterates his
challenge against the discharge of Potencio.
The petition is utterly unmeritorious.
Petitioner and Potencio were caught in flagrante delicto transporting, and thus in possession of,
processed mahogany lumber without proper authority from the DENR. Petitioner has never
denied this fact. But in his attempt to exonerate himself from liability, he claims that it was
Potencio, the owner of the lumber, who requested his assistance in hauling the log down from
the mountain and in transporting the same to the sawmill for processing. The contention is
unavailing.
Section 68 of P.D. No. 705, as amended by E.O. No. 277, criminalizes two distinct and separate
offenses, namely: (a) the cutting, gathering, collecting and removing of timber or other forest
products from any forest land, or timber from alienable or disposable public land, or from
private land without any authority; and (b) the possession of timber or other forest products
without the legal documents required under existing laws and regulations. 19 DENR
Administrative Order No. 59 series of 1993 specifies the documents required for the transport
of timber and other forest products. Section 3 thereof materially requires that the transport of
lumber be accompanied by a certificate of lumber origin duly issued by the DENR-CENRO. In the
first offense, the legality of the acts of cutting, gathering, collecting or removing timber or other
forest products may be proven by the authorization duly issued by the DENR. In the second
offense, however, it is immaterial whether or not the cutting, gathering, collecting and removal
of forest products are legal precisely because mere possession of forest products without the
requisite documents consummates the crime.20
It is thus clear that the fact of possession by petitioner and Potencio of the subject mahogany
lumber and their subsequent failure to produce the requisite legal documents, taken together,
has already given rise to criminal liability under Section 68 of P.D. No. 705, particularly the
second act punished thereunder. The direct and affirmative testimony of Molina and Potencio
as a state witness on the circumstances surrounding the apprehension well establishes
petitioner’s liability. Petitioner cannot take refuge in his denial of ownership over the pieces of
lumber found in his possession nor in his claim that his help was merely solicited by Potencio to
provide the latter assistance in transporting the said lumber. P.D. No. 705 is a special penal
statute that punishes acts essentially malum prohibitum. As such, in prosecutions under its
provisions, claims of good faith are by no means reliable as defenses because the offense is
complete and criminal liability attaches once the prohibited acts are committed. 21 In other
words, mere possession of timber or other forest products without the proper legal documents,
even absent malice or criminal intent, is illegal. 22 It would therefore make no difference at all
whether it was petitioner himself or Potencio who owned the subject pieces of lumber.
Considering the overwhelming body of evidence pointing to nothing less than petitioner’s guilt
of the offense charged, there is no cogent reason to reverse his conviction.
Petitioner’s challenge against Potencio’s discharge as a state witness must also fail. Not a few
cases established the doctrine that the discharge of an accused so he may turn state witness is
left to the exercise of the trial court’s sound discretion 23 limited only by the requirements set
forth in Section 17,24 Rule 119 of the Rules of Court. Thus, whether the accused offered to be
discharged appears to be the least guilty and whether there is objectively an absolute necessity
for his testimony are questions that lie within the domain of the trial court, it being competent
to resolve issues of fact. The discretionary judgment of the trial court with respect this highly
factual issue is not to be interfered with by the appellate courts except in case of grave abuse of
discretion.25 No such grave abuse is present in this case. Suffice it to say that issues relative to
the discharge of an accused must be raised in the trial court as they cannot be addressed for
the first time on appeal.26
Moreover and more importantly, an order discharging an accused from the information in
order that he may testify for the prosecution has the effect of an acquittal. 27 Once the discharge
is ordered by the trial court, any future development showing that any or all of the conditions
provided in Section 17, Rule 119 have not actually been fulfilled will not affect the legal
consequence of an acquittal.28 Any witting or unwitting error of the prosecution, therefore, in
moving for the discharge and of the court in granting the motion—no question of jurisdiction
being involved—will not deprive the discharged accused of the benefit of acquittal and of his
right against double jeopardy. A contrary rule would certainly be unfair to the discharged
accused because he would then be faulted for a failure attributable to the prosecutor. It is
inconceivable that the rule has adopted the abhorrent legal policy of placing the fate of the
discharged accused at the mercy of anyone who may handle the prosecution.29 Indeed, the only
instance where the testimony of a discharged accused may be disregarded is when he
deliberately fails to testify truthfully in court in accordance with his commitment, 30 as provided
for in Section 18, Rule 119. Potencio lived up to his commitment and for that reason,
petitioner’s challenge against his discharge must be dismissed.
WHEREFORE, the petition is DENIED and the assailed decision of the Court of Appeals is
AFFIRMED.
SO ORDERED.

[G.R. No. 190889 : January 10, 2011]

ELENITA C. FAJARDO, PETITIONER, VS. PEOPLE OF THE PHILIPPINES, RESPONDENT.

DECISION

NACHURA, J.:

At bar is a Petition for Review on Certiorari under Rule 45 of the Rules of Court, seeking the
reversal of the February 10, 2009 Decision[1] of the Court of Appeals (CA), which affirmed with
modification the August 29, 2006 decision[2] of the Regional Trial Court (RTC), Branch 5, Kalibo,
Aklan, finding petitioner guilty of violating Presidential Decree (P.D.) No. 1866, as
amended.cralaw

The facts:

Petitioner, Elenita Fajardo, and one Zaldy Valerio (Valerio) were charged with violation of P.D.
No. 1866, as amended, before the RTC, Branch 5, Kalibo, Aklan, committed as follows:

That on or about the 28th day of August, 2002, in the morning, in Barangay Andagao,
Municipality of Kalibo, Province of Aklan, Republic of the Philippines, and within the jurisdiction
of this Honorable Court, the above-named accused, conspiring, confederating and mutually
helping one another, without authority of law, permit or license, did then and there, knowingly,
willfully, unlawfully and feloniously have in their possession, custody and control two (2)
receivers of caliber .45 pistol, [M]odel [No.] M1911A1 US with SN 763025 and Model [No.]
M1911A1 US with defaced serial number, two (2) pieces short magazine of M16 Armalite
rifle, thirty-five (35) pieces live M16 ammunition 5.56 caliber and fourteen (14) pieces live
caliber .45 ammunition, which items were confiscated and recovered from their possession
during a search conducted by members of the Provincial Intelligence Special Operation Group,
Aklan Police Provincial Office, Kalibo, Aklan, by virtue of Search Warrant No. 01 (9) 03 issued by
OIC Executive Judge Dean Telan of the Regional Trial Court of Aklan. [3]

When arraigned on March 25, 2004, both pleaded not guilty to the offense charged. [4] During
pre-trial, they agreed to the following stipulation of facts:

1. The search warrant subject of this case exists;

2. Accused Elenita Fajardo is the same person subject of the search warrant in this case
who is a resident of Sampaguita Road, Park Homes, Andagao, Kalibo, Aklan;

3. Accused Zaldy Valerio was in the house of Elenita Fajardo in the evening of August 27,
2002 but does not live therein;

4. Both accused were not duly licensed firearm holders;

5. The search warrant was served in the house of accused Elenita Fajardo in the morning of
August 28, 2002; and

6. The accused Elenita Fajardo and Valerio were not arrested immediately upon the arrival
of the military personnel despite the fact that the latter allegedly saw them in
possession of a firearm in the evening of August 27, 2002.[5]

As culled from the similar factual findings of the RTC and the CA,[6] these are the chain of events
that led to the filing of the information:

In the evening of August 27, 2002, members of the Provincial Intelligence Special Operations
Group (PISOG) were instructed by Provincial Director Police Superintendent Edgardo Mendoza
(P/Supt. Mendoza) to respond to the complaint of concerned citizens residing on Ilang-Ilang
and Sampaguita Roads, Park Homes III Subdivision, Barangay Andagao, Kalibo, Aklan, that
armed men drinking liquor at the residence of petitioner were indiscriminately firing guns.

Along with the members of the Aklan Police Provincial Office, the elements of the PISOG
proceeded to the area. Upon arrival thereat, they noticed that several persons scampered and
ran in different directions. The responding team saw Valerio holding two .45 caliber pistols. He
fired shots at the policemen before entering the house of petitioner.

Petitioner was seen tucking a .45 caliber handgun between her waist and the waistband of her
shorts, after which, she entered the house and locked the main door.
To prevent any violent commotion, the policemen desisted from entering petitioner's house
but, in order to deter Valerio from evading apprehension, they cordoned the perimeter of the
house as they waited for further instructions from P/Supt. Mendoza. A few minutes later,
petitioner went out of the house and negotiated for the pull-out of the police troops. No
agreement materialized.

At around 2:00 a.m. and 4:00 a.m. of August 28, 2002, Senior Police Officer 2 Clemencio Nava
(SPO2 Nava), who was posted at the back portion of the house, saw Valerio emerge twice on
top of the house and throw something. The discarded objects landed near the wall of
petitioner's house and inside the compound of a neighboring residence. SPO2 Nava, together
with SPO1 Teodoro Neron and Jerome T. Vega (Vega), radio announcer/reporter of RMN DYKR,
as witness, recovered the discarded objects, which turned out to be two (2) receivers of .45
caliber pistol, model no. M1911A1 US, with serial number (SN) 763025, and model no.
M1911A1 US, with a defaced serial number. The recovered items were then surrendered to
SPO1 Nathaniel A. Tan (SPO1 Tan), Group Investigator, who utilized them in applying for and
obtaining a search warrant.

The warrant was served on petitioner at 9:30 a.m. Together with

a barangay captain, barangay kagawad, and members of the media, as witnesses, the police
team proceeded to search petitioner's house.  The team found and was able to confiscate the
following:

1. Two (2) pieces of Short Magazine of M16 Armalite Rifle;

2. Thirty five (35) pieces  of live M16 ammos 5.56 Caliber; and
3. Fourteen (14) pieces of live ammos of Caliber 45 pistol.

Since petitioner and Valerio failed to present any documents showing their authority to possess
the confiscated firearms and the two recovered receivers, a criminal information for violation of
P.D. No. 1866, as amended by Republic Act (R.A.) No. 8294, was filed against them.

For their exoneration, petitioner and Valerio argued that the issuance of the search warrant
was defective because the allegation contained in the application filed and signed by SPO1 Tan
was not based on his personal knowledge. They quoted this pertinent portion of the
application:

That this application was founded on confidential information received by the Provincial
Director, Police Supt. Edgardo Mendoza.[7]

They further asserted that the execution of the search warrant was infirm since petitioner, who
was inside the house at the time of the search, was not asked to accompany the policemen as
they explored the place, but was instead ordered to remain in the living room (sala).

Petitioner disowned the confiscated items. She refused to sign the inventory/receipt prepared
by the raiding team, because the items allegedly belonged to her brother, Benito Fajardo, a
staff sergeant of the Philippine Army.

Petitioner denied that she had a .45 caliber pistol tucked in her waistband when the raiding
team arrived. She averred that such situation was implausible because she was wearing
garterized shorts and a spaghetti-strapped hanging blouse.[8]

Ruling of the RTC

The RTC rejected the defenses advanced by accused, holding that the same were already
denied in the Orders dated December 31, 2002 and April 20, 2005, respectively denying
the Motion to Quash Search Warrant and Demurrer to Evidence. The said Orders were not
appealed and have thus attained finality. The RTC also ruled that petitioner and Valerio were
estopped from assailing the legality of their arrest since they participated in the trial by
presenting evidence for their defense. Likewise, by applying for bail, they have effectively
waived such irregularities and defects.

In finding the accused liable for illegal possession of firearms, the RTC explained:

Zaldy Valerio, the bodyguard of Elenita Fajardo, is a former soldier, having served with the
Philippine Army prior to his separation from his service for going on absence without leave
(AWOL). With his military background, it is safe to conclude that Zaldy Valerio is familiar with
and knowledgeable about different types of firearms and ammunitions. As a former soldier,
undoubtedly, he can assemble and disassemble firearms.

It must not be de-emphasize[d] that the residence of Elenita Fajardo is definitely not an armory
or arsenal which are the usual depositories for firearms, explosives and ammunition. Granting
arguendo that those firearms and ammunition were left behind by Benito Fajardo, a member of
the Philippine army, the fact remains that it is a government property. If it is so, the residence
of Elenita Fajardo is not the proper place to store those items. The logical explanation is that
those items are stolen property.

xxxx

The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the thing to one's control and
management. This has to be so if the manifest intent of the law is to be effective. The same
evils, the same perils to public security, which the law penalizes exist whether the unlicensed
holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this
law[,] the proprietary concept of the possession can have no bearing whatsoever.

xxxx

x x x. [I]n order that one may be found guilty of a violation of the decree, it is sufficient that the
accused had no authority or license to possess a firearm, and that he intended to possess the
same, even if such possession was made in good faith and without criminal intent.

xxxx

To convict an accused for illegal possession of firearms and explosive under P.D. 1866, as
amended, two (2) essential elements must be indubitably established, viz.: (a) the existence of
the subject firearm ammunition or explosive which may be proved by the presentation of the
subject firearm or explosive or by the testimony of witnesses who saw accused in possession of
the same, and (b) the negative fact that the accused has no license or permit to own or possess
the firearm, ammunition or explosive which fact may be established by the testimony or
certification of a representative of the PNP Firearms and Explosives Unit that the accused has
no license or permit to possess the subject firearm or explosive (Exhibit G).

The judicial admission of the accused that they do not have permit or license on the two (2)
receivers of caliber .45 pistol, model M1911A1 US with SN 763025 and model M1911A1 of M16
Armalite rifle, thirty-five (35) pieces live M16 ammunition, 5.56 caliber and fourteen (14) pieces
live caliber .45 ammunition confiscated and recovered from their possession during the search
conducted by members of the PISOG, Aklan Police Provincial Office by virtue of Search Warrant
No. 01 (9) 03 fall under Section 4 of Rule 129 of the Revised Rules of Court. [9]

Consequently, petitioner and Valerio were convicted of illegal possession of firearms and
explosives, punishable under paragraph 2, Section 1 of P.D. No. 1866, as amended by R.A. No.
8294, which provides:

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(P30,000.00) shall be imposed if the firearm is classified as high powered firearm which includes
those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .40, .41, .
44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and
caliber .22 center-fire magnum and other firearms with firing capability of full automatic and by
burst of two or three: Provided, however, That no other crime was committed by the person
arrested.
Both were sentenced to suffer the penalty of imprisonment of six (6) years and one (1) day to
twelve (12) years of prision mayor, and to pay a fine of P30,000.00.

On September 1, 2006, only petitioner filed a Motion for Reconsideration, which was denied in
an Order dated October 25, 2006. Petitioner then filed a Notice of Appeal with the CA.

Ruling of the CA

The CA concurred with the factual findings of the RTC, but disagreed with its conclusions of law,
and held that the search warrant was void based on the following observations:

[A]t the time of applying for a search warrant, SPO1 Nathaniel A. Tan did not have personal
knowledge of the fact that appellants had no license to possess firearms as required by law. For
one, he failed to make a categorical statement on that point during the application. Also, he
failed to attach to the application a certification to that effect from the Firearms and Explosives
Office of the Philippine National Police. x x x, this certification is the best evidence obtainable to
prove that appellant indeed has no license or permit to possess a firearm. There was also no
explanation given why said certification was not presented, or even deemed no longer
necessary, during the application for the warrant. Such vital evidence was simply ignored. [10]

Resultantly, all firearms and explosives seized inside petitioner's residence were declared
inadmissible in evidence. However, the 2 receivers recovered by the policemen outside the
house of petitioner before the warrant was served were admitted as evidence, pursuant to the
plain view doctrine.

Accordingly, petitioner and Valerio were convicted of illegal possession of a part of a firearm,
punishable under paragraph 1, Section 1 of P.D. No. 1866, as amended. They were sentenced to
an indeterminate penalty of three (3) years, six (6) months, and twenty-one (21) days to five (5)
years, four (4) months, and twenty (20) days of prision correccional, and ordered to pay a
P20,000.00 fine.

Petitioner moved for reconsideration,[11] but the motion was denied in the CA Resolution dated
December 3, 2009.[12] Hence, the present recourse.

At the onset, it must be emphasized that the information filed against petitioner and Valerio
charged duplicitous offenses contrary to Section 13 of Rule 110 of the Rules of Criminal
Procedure, viz.:

Sec. 13.  Duplicity of offense. - A complaint or information must charge but one offense, except
only in those cases in which existing laws prescribe a single punishment for various offenses.
A reading of the information clearly shows that possession of the enumerated articles
confiscated from Valerio and petitioner are punishable under separate provisions of Section 1,
P.D. No. 1866, as amended by R.A. No. 8294.[13] Illegal possession of two (2) pieces of short
magazine of M16 Armalite rifle, thirty-five (35) pieces of live M16 ammunition 5.56 caliber, and
fourteen (14) pieces of live caliber .45 ammunition is punishable under paragraph 2 of the said
section, viz.:

The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos
(P30,000.00) shall be imposed if the firearm is classified as high powered firearm which
includes those with bores bigger in diameter than .38 caliber and 9 millimeter such as caliber .
40, 41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357
and caliber .22 center-fire magnum and other firearms with firing capability of full automatic
and by burst of two or three: Provided, however, That no other crime was committed by the
person arrested.[14]

On the other hand, illegal possession of the two (2) receivers of a .45 caliber pistol, model no.
M1911A1 US, with SN 763025, and Model M1911A1 US, with a defaced serial number, is
penalized under paragraph 1, which states:

Sec. 1. Unlawful manufacture, sale, acquisition, disposition or possession of firearms or

ammunition or instruments used or intended to be used in the manufacture of firearms or
ammunition. - The penalty of prision correccional in its maximum period and a fine of not less
than Fifteen thousand pesos (P15,000.00) shall be imposed upon any person who shall
unlawfully manufacture, deal in, acquire, dispose, or possess any low powered firearm, such as
rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm,
ammunition, or machinery, tool or instrument used or intended to be used in the manufacture
of any firearm or ammunition: Provided, That no other crime was committed.[15]

This is the necessary consequence of the amendment introduced by R.A. No. 8294, which
categorized the kinds of firearms proscribed from being possessed without a license, according
to their firing power and caliber. R.A. No. 8294 likewise mandated different penalties for illegal
possession of firearm according to the above classification, unlike in the old P.D. No. 1866
which set a standard penalty for the illegal possession of any kind of firearm. Section 1 of the
old law reads:

Section 1.  Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or

Ammunition or Instruments Used or Intended to be Used in the Manufacture of Firearms of
Ammunition. - The penalty of reclusion temporal in its maximum period to reclusion perpetua
shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire dispose,
or possess any firearms, part of firearm, ammunition, or machinery, tool or instrument used or
intended to be used in the manufacture of any firearm or ammunition.  (Emphasis ours.)

By virtue of such changes, an information for illegal possession of firearm should now
particularly refer to the paragraph of Section 1 under which the seized firearm is classified, and
should there be numerous guns confiscated, each must be sorted and then grouped according
to the categories stated in Section 1 of R.A. No. 8294, amending P.D. No. 1866. It will no longer
suffice to lump all of the seized firearms in one information, and   state Section 1, P.D. No. 1866
as the violated provision, as in the instant case,[16] because different penalties are imposed by
the law, depending on the caliber of the weapon. To do so would result in duplicitous charges.

Ordinarily, an information that charges multiple offenses merits a quashal, but petitioner and
Valerio failed to raise this issue during arraignment. Their failure constitutes a waiver, and they
could be convicted of as many offenses as there were charged in the information. [17] This
accords propriety to the diverse convictions handed down by the courts a quo.

Further, the charge of illegal possession of firearms and ammunition under paragraph 2, Section
1 of P.D. No. 1866, as amended by R.A. No. 8294, including the validity of the search warrant
that led to their confiscation, is now beyond the province of our review since, by virtue of the
CA's Decision, petitioner and Valerio have been effectively acquitted from the said charges. The
present review is consequently only with regard to the conviction for illegal possession of a part
of a firearm.

The Issues

Petitioner insists on an acquittal and avers that the discovery of the two (2) receivers does not
come within the purview of the plain view doctrine. She argues that no valid intrusion was
attendant and that no evidence was adduced to prove that she was with Valerio when he threw
the receivers. Likewise absent is a positive showing that any of the two receivers recovered by
the policemen matched the .45 caliber pistol allegedly seen tucked in the waistband of her
shorts when the police elements arrived. Neither is there any proof that petitioner had
knowledge of or consented to the alleged throwing of the receivers.

Our Ruling

We find merit in the petition.

First, we rule on the admissibility of the receivers.  We hold that the receivers were seized in
plain view, hence, admissible.

No less than our Constitution recognizes the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures. This right is
encapsulated in Article III, Section 2, of the Constitution, which states:

Sec.  2. The right of the people to be secure in their persons, houses, papers, and effects against
unreasonable searches and seizures of whatever nature and for any purpose shall be inviolable,
and no search warrant or warrant of arrest shall issue except upon probable cause to be
determined personally by the judge after examination under oath or affirmation of the
complainant and the witnesses he may produce, and particularly describing the place to be
searched and the persons or things to be seized.

Complementing this provision is the exclusionary rule embodied in Section 3(2) of the same
article -

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

There are, however, several well-recognized exceptions to the foregoing rule.  Thus, evidence
obtained through a warrantless search and seizure may be admissible under any of the
following circumstances: (1) search incident to a lawful arrest; (2) search of a moving motor
vehicle; (3) search in violation of custom laws; (4) seizure of evidence in plain view; and (5)
when the accused himself waives his right against unreasonable searches and seizures. [18]

Under the plain view doctrine, objects falling in the "plain view" of an officer, who has a right to
be in the position to have that view, are subject to seizure and may be presented as evidence.
[19]
 It applies when the following requisites concur: (a) the law enforcement officer in search of
the evidence has a prior justification for an intrusion or is in a position from which he can view a
particular area; (b) the discovery of the evidence in plain view is inadvertent; and (c) it is
immediately apparent to the officer that the item he observes may be evidence of a crime,
contraband, or otherwise subject to seizure. The law enforcement officer must lawfully make
an initial intrusion or properly be in a position from which he can particularly view the area. In
the course of such lawful intrusion, he came inadvertently across a piece of evidence
incriminating the accused. The object must be open to eye and hand, and its discovery
inadvertent.[20]

Tested against these standards, we find that the seizure of the two receivers of the .45 caliber
pistol outside petitioner's house falls within the purview of the plain view doctrine.

First, the presence of SPO2 Nava at the back of the house and of the other law enforcers
around the premises was justified by the fact that petitioner and Valerio were earlier seen
respectively holding .45 caliber pistols before they ran inside the structure and sought refuge.
The attendant circumstances and the evasive actions of petitioner and Valerio when the law
enforcers arrived engendered a reasonable ground for the latter to believe that a crime was
being committed. There was thus sufficient probable cause for the policemen to cordon off the
house as they waited for daybreak to apply for a search warrant.

Secondly, from where he was situated, SPO2 Nava clearly saw, on two different instances,
Valerio emerge on top of the subject dwelling and throw suspicious objects. Lastly, considering
the earlier sighting of Valerio holding a pistol, SPO2 Nava had reasonable ground to believe that
the things thrown might be contraband items, or evidence of the offense they were then
suspected of committing. Indeed, when subsequently recovered, they turned out to be two (2)
receivers of .45 caliber pistol.

The pertinent portions of SPO2 Nava's testimony are elucidating:

Q     When you arrived in that place, you saw policemen?

A     Yes, sir.

Q     What were they doing?

A     They were cordoning the house.

Q You said that you asked your assistant team leader Deluso about that incident. What did he
tell you?

A     Deluso told me that a person ran inside the house carrying with him a gun.

Q     And this house you are referring to is the house which you mentioned is the police officers
were surrounding?

A     Yes, sir.

Q     Now, how  long did you stay in that place, Mr. Witness?

A     I stayed there when I arrived at past 10:00 o'clock up to 12:00 o'clock the following day.

Q     At about 2:00 o'clock in the early morning of August 28, 2002, can you recall where were
you?

A     Yes, sir.

Q     Where were you?

A     I was at the back of the house that is being cordoned by the police.

Q     While you were at the back of this house, do you recall any unusual incident?

A Yes, sir.

Q     Can you tell the Honorable Court what was that incident?

A     Yes, sir. A person went out at the top of the house and threw something.

Q     And did you see the person who threw something out of this house?

A     Yes, sir.

xxxx

Q     Can you tell the Honorable Court who was that person who threw that something outside
the house?

A     It was Zaldy Valerio.

COURT:     (to witness)

Q     Before the incident, you know this person Zaldy Valerio?

A     Yes, sir.

Q     Why do you know him?

A     Because we were formerly members of the Armed Forces of the Philippines.

xxxx

PROS. PERALTA:

Q     When you saw something thrown out at the top of the house, did you do something if any?

A     I shouted to seek cover.

xxxx
Q     So, what else did you do if any after you shouted, "take cover?"

A     I took hold of a flashlight after five minutes and focused the beam of the flashlight on the
place where something was thrown.

Q     What did you see if any?

A     I saw there the lower [part] of the receiver of cal. 45.

xxxx

Q     Mr. Witness, at around 4:00 o'clock that early morning of August 28, 2002, do you recall
another unusual incident?

A     Yes, sir.

Q     And can you tell us what was that incident?

A     I saw a person throwing something there and the one that was thrown fell on top of the
roof of another house.

Q     And you saw that person who again threw something from the rooftop of the house?

A     Yes, sir.

Q     Did you recognize him?

A     Yes, sir.

Q     Who was that person?

A     Zaldy Valerio again.

xxxx

Q     Where were you when you saw this Zaldy Valerio thr[o]w something out of the house?

A     I was on the road in front of the house.

Q     Where was Zaldy Valerio when you saw him thr[o]w something out of the house?

A     He was on top of the house.

xxxx

Q     Later on, were you able to know what was that something thrown out?

A     Yes, sir.

Q     What was that?

A     Another lower receiver of a cal. 45.

xxxx

Q     And what did he tell you?

A     It [was] on the wall of another house and it [could] be seen right away.

xxxx

Q     What did you do if any?

A     We waited for the owner of the house to wake up.

xxxx

Q     Who opened the fence for you?

A     It was a lady who is the owner of the house.

Q     When you entered the premises of the house of the lady, what did you find?

A     We saw the lower receiver of this .45 cal. (sic) [21]

The ensuing recovery of the receivers may have been deliberate; nonetheless, their initial
discovery was indubitably inadvertent. It is not crucial that at initial sighting the seized
contraband be identified and known to be so. The law merely requires that the law enforcer
observes that the seized item may be evidence of a crime, contraband, or otherwise subject to
seizure.
Hence, as correctly declared by the CA, the two receivers were admissible as evidence. The
liability for their possession, however, should fall only on Valerio and not on petitioner.

The foregoing disquisition notwithstanding, we find that petitioner is not liable for illegal
possession of part of a firearm.

In dissecting how and when liability for illegal possession of firearms attaches, the following
disquisitions in People v. De Gracia[22] are instructive:

The rule is that ownership is not an essential element of illegal possession of firearms and
ammunition. What the law requires is merely possession which includes not only actual physical
possession but also constructive possession or the subjection of the thing to one's control and
management. This has to be so if the manifest intent of the law is to be effective. The same
evils, the same perils to public security, which the law penalizes exist whether the unlicensed
holder of a prohibited weapon be its owner or a borrower. To accomplish the object of this law
the proprietary concept of the possession can have no bearing whatsoever.

But is the mere fact of physical or constructive possession sufficient to convict a person for
unlawful possession of firearms or must there be an intent to possess to constitute a violation
of the law? This query assumes significance since the offense of illegal possession of firearms is
a malum prohibitum punished by a special law, in which case good faith and absence of criminal
intent are not valid defenses.

When the crime is punished by a special law, as a rule, intent to commit the crime is not
necessary. It is sufficient that the offender has the intent to perpetrate the act prohibited by
the special law. Intent to commit the crime and intent to perpetrate the act must be
distinguished. A person may not have consciously intended to commit a crime; but he did
intend to commit an act, and that act is, by the very nature of things, the crime itself. In the first
(intent to commit the crime), there must be criminal intent; in the second (intent to perpetrate
the act) it is enough that the prohibited act is done freely and consciously.

In the present case, a distinction should be made between criminal intent and intent to possess.
While mere possession, without criminal intent, is sufficient to convict a person for illegal
possession of a firearm, it must still be shown that there was animus possidendi or an intent to
possess on the part of the accused. Such intent to possess is, however, without regard to any
other criminal or felonious intent which the accused may have harbored in possessing the
firearm. Criminal intent here refers to the intention of the accused to commit an offense with
the use of an unlicensed firearm. This is not important in convicting a person under Presidential
Decree No. 1866. Hence, in order that one may be found guilty of a violation of the decree, it is
sufficient that the accused had no authority or license to possess a firearm, and that he
intended to possess the same, even if such possession was made in good faith and without
criminal intent.

Concomitantly, a temporary, incidental, casual, or harmless possession or control of a firearm

cannot be considered a violation of a statute prohibiting the possession of this kind of
weapon, such as Presidential Decree No. 1866. Thus, although there is physical or constructive
possession, for as long as the animus possidendi is absent, there is no offense committed.[23]

Certainly, illegal possession of firearms, or, in this case, part of a firearm, is committed when
the holder thereof:

(1) possesses a firearm or a part thereof

(2) lacks the authority or license to possess the firearm.[24]

We find that petitioner was neither in physical nor constructive possession of the subject
receivers. The testimony of SPO2 Nava clearly bared that he only saw Valerio on top of the
house when the receivers were thrown. None of the witnesses saw petitioner holding the
receivers, before or during their disposal.

At the very least, petitioner's possession of the receivers was merely incidental because Valerio,
the one in actual physical possession, was seen at the rooftop of petitioner's house. Absent any
evidence pointing to petitioner's participation, knowledge or consent in Valerio's actions, she
cannot be held liable for illegal possession of the receivers.

Petitioner's apparent liability for illegal possession of part of a firearm can only proceed from
the assumption that one of the thrown receivers matches the gun seen tucked in the waistband
of her shorts earlier that night. Unfortunately, the prosecution failed to convert such
assumption into concrete evidence.

Mere speculations and probabilities cannot substitute for proof required to establish the guilt
of an accused beyond reasonable doubt.  The rule is the same whether the offenses are
punishable under the Revised Penal Code, which are mala in se, or in crimes, which are malum
prohibitum by virtue of special law.[25] The quantum of proof required by law was not
adequately met in this case in so far as petitioner is concerned.

The gun allegedly seen tucked in petitioner's waistband was not identified with sufficient
particularity; as such, it is impossible to match the same with any of the seized receivers. 
Moreover, SPO1 Tan categorically stated that he saw Valerio holding two guns when he and the
rest of the PISOG arrived in petitioner's house. It is not unlikely then that the receivers later on
discarded were components of the two (2) pistols seen with Valerio.
These findings also debunk the allegation in the information that petitioner conspired with
Valerio in committing illegal possession of part of a firearm. There is no evidence indubitably
proving that petitioner participated in the decision to commit the criminal act committed by
Valerio.

Hence, this Court is constrained to acquit petitioner on the ground of reasonable doubt. The
constitutional presumption of innocence in her favor was not adequately overcome by the
evidence adduced by the prosecution.

The CA correctly convicted Valerio with illegal possession of part of a firearm.

In illegal possession of a firearm, two (2) things must be shown to exist: (a) the existence of the
subject firearm; and (b) the fact that the accused who possessed the same does not have the
corresponding license for it.[26]

By analogy then, a successful conviction for illegal possession of part of a firearm must yield
these requisites:

(a) the existence of the part of the firearm; and

(b) the accused who possessed the same does not have the license for the firearm to which the
seized part/component corresponds.

In the instant case, the prosecution proved beyond reasonable doubt the

elements of the crime. The subject receivers - one with the markings "United States Property"
and the other bearing Serial No. 763025 - were duly presented to the court as Exhibits E and E-
1, respectively.  They were also identified by SPO2 Nava as the firearm parts he retrieved af ter
Valerio discarded them.[27] His testimony was corroborated by DYKR radio announcer Vega, who
witnessed the recovery of the receivers.[28]

Anent the lack of authority, SPO1 Tan testified that, upon verification, it was ascertained that
Valerio is not a duly licensed/registered firearm holder of any type, kind, or caliber of firearms.
[29]
 To substantiate his statement, he submitted a certification[30] to that effect and identified the
same in court.[31] The testimony of SPO1 Tan, or the certification, would suffice to prove beyond
reasonable doubt the second element.[32]cralaw

WHEREFORE, premises considered, the February 10, 2009 Decision of the Court of Appeals is
hereby REVERSED with respect to petitioner Elenita Fajardo y Castro, who is
hereby ACQUITTED on the ground that her guilt was not proved beyond reasonable doubt.
SO ORDERED.