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MEYERS v. UNITED STATES 171 F .2d 800 (1948) MEYERS v. UNITED STATES. No. 9797.

United States Court of Appeals District of Columbia Circuit. Argued June 14, 1948. Decided November 8, 1948. Writ of Certiorari Denied February 14, 1949. Mr. Robert T. Bushnell, of Boston, Mass., with whom Messrs. Russell Hardy and Smith W. Brookhart, both of Washington, D. C., were on the brief, for appellant. Mr. George Morris Fay, U. S. Atty., of Washington, D. C., with whom Mr. Edward Molenof, Sp. Asst. to the Atty. Gen., and Messrs. John W. Fihelly, Sidney S. Sachs and Ross O'Donoghue, Asst. U. S. Attys., all of Washington, D. C., were on the brief, for appellee. Before WILBUR K. MILLER, PRETTYMAN and PROCTOR, Circuit Judges. WILBUR K. MILLER, Circuit Judge. Bleriot H. Lamarre and the appellant, Bennett E. Meyers, were jointly indicted for violating the District of Columbia statute1 which denounces perjury and subornation thereof. Three counts of the indictment charged Lamarre with as many separate perjuries in his testimony before a subcommittee of a committee of the United States Senate constituted to investigate the national defense program, and three more counts accused Meyers of suborning the perjuries of his codefendant. Lamarre pleaded guilty to all three charges when he was arraigned on December 19, 1947, a few days after the return of the indictment. Meyers entered a plea of not guilty and was tried before a jury in the District Court of the United States for the District of Columbia. At the conclusion of the government's evidence, he moved for a judgment of acquittal, which the court denied. Meyers did not take the stand or introduce any evidence.

Having been found guilty under each of the three counts against him, he appeals. Meyers was an officer in the United States Army. In 1939, while stationed at Wright Field, near Dayton, Ohio, he organized under the laws of Ohio a corporation called Aviation Electric Corporation, and paid into its treasury the sum of $500 to cover its authorized capital consisting of 250 shares of common stock having a par value of $2 each. At his direction, a certificate for 224 shares was issued to Miss June Ballaou, an employee at Wright Field, and the remaining shares were divided between one David Johnson and one Robert L. Pine. The newly organized company engaged in manufacturing parts and accessories for airplanes, and soon had on hand orders from the Signal Corps of the United States Army aggregating about $20,000. The appellant had become acquainted with Lamarre and his wife as early as 1936 or 1937 and apparently was fond of them. Late in 1939, he went to see Lamarre in California, where the latter was employed by an airplane company, and suggested that he come to Dayton to become associated with Aviation Electric in an executive capacity. The invitation was accepted and in January, 1940, Lamarre was made secretary-treasurer of the corporation and the Ballaou certificate for 224 shares was transferred to him without valuable consideration. A few months thereafter he became president of the company. From its modest beginning in 1939 the operations of Aviation Electric Corporation expanded substantially and rapidly. It obtained contracts to furnish parts to large corporations engaged in producing aircraft for the United States Army. Meyers advanced considerable sums for working capital and took therefor the company's promissory notes which were secured by the pledge and delivery to him of certificates, endorsed in blank, evidencing all its capital stock. The appellant was transferred to Washington in 1941 and the next year became Deputy Chief of Procurement of Aircraft and Aircraft Parts for the Army Air Force. Meanwhile, Aviation Electric was operating successfully and profitably so that by the end of 1942 all Meyers' loans had been repaid. Large profits were earned as long as the war continued, but the termination of actual hostilities so reduced the demand for its products that the corporation was dissolved in September, 1946. Desiring to ascertain whether there had been instances of waste, fraud, corruption, mismanagement, excessive profits or inefficiency in the nation's war effort, entailing as it did the hurried expenditure of billions of dollars for national defense, the United States Senate created the investigating committee to which reference has been made. In the course of an inquiry into government contracts with a large airplane supplier, the appellant testified before that committee. It developed during the hearing that Aviation Electric Corporation had been a sub-contractor on government work and that Lamarre had been its president from 1940 until its dissolution in 1946. In order to ascertain what connection, if any, the appellant had had with Aviation Electric, the subcommittee subpoenaed Lamarre, who testified on Saturday, October 4, and Monday, October 6, in 1947. That testimony

[ 171 F.2d 803 ] brought about the indictment which was the genesis of the case now before us. Three of the indictment's counts charged that Lamarre: (1) knowingly and willfully testified falsely that Meyers "was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio," during the years 1940 to 1947, inclusive; (2) knowingly and willfully testified falsely that a Cadillac automobile purchased in Washington by Meyers, and paid for by Aviation Electric Corporation, was purchased for the corporation and for its use; (3) knowingly and willfully testified falsely that the sum of $10,000, paid by means of Aviation Electric's checks, for decorating and furnishing Meyers' Washington apartment "was a gift from himself, Bleriot H. Lamarre." Although the appellant was convicted on three counts, each of which charged him with suborning one of Lamarre's perjuries, he received only one sentence.2 That being true, the judgment must be affirmed if appellant was properly convicted on any one of the three counts against him.3 We shall consider, nevertheless, appellant's assignments of error with respect to all the counts. 1. As to Meyers' financial interest in or connection with Aviation Electric Corporation. On this subject, the first count of the indictment includes the following: "* * * In the course of his [Lamarre's] testimony it became material whether Bennett E. Meyers was financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, or 1947; and being questioned in that regard, Bleriot H. Lamarre on October 4 and October 6, 1947, and in the District of Columbia wilfully and contrary to his said oath testified falsely that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years or any of them, whereas in truth, as Bleriot H. Lamarre knew, Bennet E. Meyers was financially interested in and connected with the said Aviation Electric Corporation during each and all the years 1940, 1941, 1942, 1943, 1944, 1945, 1946 and 1947." Appellant's counsel earnestly assert and ably argue that Lamarre did not testify before the subcommittee that Meyers was not financially interested in or connected with Aviation Electric; but that, quite to the contrary, Lamarre told the subcommittee Meyers actually owned the business. If that contention be well founded, it is a complete defense to the charge that Meyers suborned the perjury alleged in the first count. It is elementary that one cannot be convicted of suborning a perjury which was not in fact committed; that is to say, there can be no subornation of perjury if there was no perjury. It is equally true that one cannot be convicted of suborning perjury if the alleged perjurious statement actually was not made by the alleged perjuror. [ 171 F.2d 804

] No matter how unorthodox, unpatriotic, reprehensible or criminal the evidence may tend to show Meyers' conduct to have been, his conviction under the first count cannot stand if Lamarre did not in fact testify as the count charged that he did. So, at the threshold of our consideration of the first count, we must decide whether Lamarre in fact told the subcommittee Meyers was not financially interested in or connected with Aviation Electric. If it be found that he did so testify, then it will be pertinent to see whether the statement was true or false; and, if false, whether Meyers suborned it. Whether Lamarre represented to the subcommittee that Meyers was not financially interested in or connected with the company is to be determined by finding the meaning or significance which is fairly attributable to all Lamarre's testimony before the subcommittee. A stenographically reported record of that testimony was put in evidence and is before us. Appellant's insistence that Lamarre did not say what the first count charged him with saying, but said exactly the opposite, is based on the fact that Lamarre was asked this question, "So you understood all of the time that for all practical purposes, he [Meyers] owned the business?"; and that Lamarre answered by saying, "That is right," and then continued with other statements to that effect. This bit of testimony, taken from its context and read without reference to or consideration of the remainder of Lamarre's evidence, supports appellant's contention that, regardless of the truth or falsity of the statement which the first count attributed to Lamarre, he simply did not say what he is alleged to have said, but definitely stated exactly the contrary. So, if Lamarre's answer to the quoted question were all he said on the subject, we should have no difficulty in accepting appellant's argument, and in holding that Lamarre did not commit the first perjury charged against him and that, therefore, Meyers was wrongly convicted of suborning it. We turn first to the subcommittee counsel's examination of Lamarre, in the course of which he made the statement upon which appellant now relies as a defense to the first count, in order to see whether the context4 of the statement limits the absolute [ 171 F.2d 805 ] meaning which it appears to have when standing alone. The setting in which the statement appears shows that in making it Lamarre was referring to the occasion in 1940 when a large part of the stock had just been transferred to him and endorsed back to Meyers to serve as collateral. It is, however, perfectly clear from the evidence as a whole that Lamarre did not intend to be understood as meaning that from 1940 until 1947 Meyers was for all practical purposes the owner of the business. For example, when Lamarre was asked, "It [the stock] belonged to Meyers all the time?", he answered, "No, sir, it did not." He was then asked, "Well, then, when did it

become yours, actually yours?" and he replied, "When the notes were paid off." He added, "It had always been mine as a matter of fact." Even if this were not so, and if it be conceded arguendo that Lamarre unqualifiedly stated with respect to the entire period involved that Meyers had no financial interest in or connection with the corporation, it would remain true that he also later testified to the subcommittee that Meyers had no interest at any time after Lamarre's association with the company began except as a creditor, and that he ceased to have even that interest after 1942.5 The criminal nature of perjury is not removed, the Supreme Court has said, by the fact that the perjurer later in the proceeding states the truth; that is to say, recantation following perjury does not destroy its criminality. United States v. Norris, 1937, 300 U.S. 564, 573, 57 S.Ct. 535, 81 L.Ed. 808. We see no reason why the principle should not apply with even greater force when perjury follows truthful testimony and so is the last and unrecanted choice of its author. In the present case, even if the true statement (that Meyers was for all intents and purposes the owner of the business) be given the full implication and effect which appellant finds in it, and so be regarded as applying to all the years involved, it was followed by falsehood when Lamarre emphatically and repeatedly swore Meyers had no sort of interest in the company after 1942. His last choice was perjury. From the quotations shown in the margin as note 3, it will be observed that, just before making the statement which appellant says absolves him, Lamarre stated, "I would not say" it was Meyers' stock. And shortly after having made the statement upon which appellant relies, Lamarre insisted that the endorsed certificates were held for Meyers only so long as the company owed him money, that he considered the stock as income to himself, that it did not belong to Meyers all the time but actually became his [Lamarre's] when the notes were paid.6 Although he had given no consideration to Meyers or to any other person [ 171 F.2d 806 ] for the shares transferred to him at Meyers' instance, he told the senators, "It had always been mine as a matter of fact" and that he felt under no obligation to pay Meyers for it. A reading of all Lamarre's testimony on the subject shows convincingly and beyond any doubt that he was trying to get the subcommittee to believe Meyers had no actual or beneficial stock ownership in the company, and that he bore to it merely the relation of creditor, a relation which ended in 1942. This is true despite the fact that he said he understood Meyers owned the company for all practical purposes. That statement may not be isolated and thereby given a meaning wholly different from the clear significance of the testimony considered as a whole. Appellant himself states the law to be that a charge of perjury "may not be sustained by the [ 171 F.2d 807 ]

device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows." He cites Fotie v. United States, 8 Cir., 137 F.2d 831, and other cases to the same effect. The principle is sound, but has no application here. It is the appellant who seeks to sustain his defense "by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows." Since a charge of perjury may not be sustained in that manner, it follows corollarially that a defense to a charge of perjury may not be established in that fashion. From the evidence as a whole we have no difficulty in concluding that Lamarre told, and intended to tell, the subcommittee that Meyers held no stock in the company, either actually or beneficially, after the shares were issued to Lamarre in 1940; that Meyers had no interest of any kind after that except he was a creditor and held the capital stock as collateral; and that after 1942 Meyers had no sort of interest in or connection with the company. Having so determined, it is next necessary to ascertain whether that statement was false and known to be false to Lamarre when he testified, so as to stamp it as perjury. Not only did Lamarre plead guilty to the charge of perjury made against him because of his representation to the subcommittee that Meyers was not interested in or connected with the corporation; he also testified fully and freely at Meyers' trial that he had knowingly and willfully falsified in that respect before the subcommittee, and that in fact Meyers was at all times the real owner of the company. Lamarre testified further at the trial that, during the years involved, his own salary as secretary and treasurer, and later as president, was fixed at sums varying from $20,000 to $30,000 per annum and that it was so shown on the books of the corporation. Company checks were regularly drawn to Lamarre's order in payment of his ostensible salary but in fact he was allowed to keep as his own only a modest compensation. By far the larger part of the salary credited to Lamarre on the books of the corporation was remitted by him to Meyers, usually in the form of cashiers' checks. A similar arrangement was followed with respect to the salary of T. E. Readnower, Lamarre's brother-in-law, whose apparent salary was $18,600, of which some $15,000 went to Meyers. By this device and other subterfuges, such as the purchase of an automobile and the furnishing of an apartment, Meyers received more than $150,000 from the company during the years involved, in addition to the repayment to him of the sums which he advanced from time to time for working capital. The checks by which Aviation Electric paid the purported salaries, and the cashiers' checks by which the money was transmitted to Meyers, were in evidence and in our view constitute sufficient corroboration of Lamarre's testimony that he testified falsely before the subcommittee. Meyers' subornation of this perjury was proved by the evidence of Lamarre that on the day before his first appearance before the subcommittee the appellant instructed him to swear "Meyers had no financial interest or any other interest other than the money that he had

loaned to the corporation and which had been repaid to him by the middle of 1942." It thus appears that, contrary to appellant's contention, the evidence showed Lamarre actually made the statements and representations to the subcommittee which the first count charged; that his testimony was false and was given knowingly and willfully; and that Meyers suborned the perjury. 2. As to the count which charged Lamarre with perjury concerning the purchase of the Cadillac automobile. As to this count7 the indictment charged the following: "* * * In the course of his [Lamarre's] testimony on these dates it became material whether a Cadillac automobile which he testified Bennett E. Meyers had purchased with funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio, on or about January 1, 1942, had been purchased for [ 171 F.2d 808 ] the personal use of Bennett E. Meyers or for the use of the said Corporation. The fact was, as Bleriot H. Lamarre then knew, that that automobile had been purchased for the personal use of Bennett E. Meyers. Bleriot H. Lamarre nevertheless wilfully and contrary to his said oath testified falsely before the subcommittee on the dates and at the place aforesaid that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation." With respect to this charge the appellant makes in his brief the following categorical comment: "The transcript disclosed that Lamarre had given no testimony whatsoever that the car had, or had not, `been purchased for the personal use of Bennett E. Meyers or for the use of the said Corporation.' There is not a word in this transcript of any testimony by Lamarre, false or true, that the car referred to had been purchased for the personal use of appellant or for the use of the Corporation." A factual issue is thus raised which is to be resolved by resorting to the record. Lamarre swore to the subcommittee that at the end of 1941 he asked General Meyers to buy an automobile for him and that Meyers did buy in Washington the Cadillac sedan; that it remained in Washington for several weeks because when he came for it the weather was bad and he was forced to return to Dayton on a train. He also testified substantially as follows: he left the car with Meyers until he later was able to transport it to Dayton, where it was used as the company car8 by him and Curnutt, Meyers' fatherin-law, who also was an Aviation Electric employee. Aviation Electric paid for the automobile and carried it on its books as an asset until 1944 or 1945, when Curnutt bought it from the company at its then book value of $1,400. The sale was made because the company had no further use for the car. It is, therefore, plain that Lamarre told the subcommittee substantially what the second count of the indictment charged. At the trial Lamarre testified that his statements to the subcommittee were false and that in truth Meyers telephoned him from Washington and instructed him to send a company check for approximately $3,000 as he wanted to purchase a Cadillac; that the check was sent and the automobile was purchased but that the company never had possession of it.

There was ample corroboration of Lamarre's testimony that the automobile was bought for and used by Meyers. The manager of the garage at Hotel 2400, where Meyers' apartment was located, testified that early in 1942 the appellant stored in the hotel garage a new 1942 blue Cadillac which he kept there until he left on August 27, 1944. The car was kept as "live storage," meaning that it was cleaned nightly and used almost daily by Meyers or his wife. The storage was charged to Meyers and the garage manager never saw anyone drive the car other than Meyers and his wife. Calvin Mettee, who was a corporal in the army, testified he was assigned to the appellant as a chauffeur in the spring of 1942. He told of the new blue 1942 Cadillac being in the hotel garage and that it was his duty [ 171 F.2d 809 ] to see that the car was clean, brushed out and ready to go at all times. During the year 1942 it was never out of the garage for longer than a week. It bore District of Columbia license tags during 1942, 1943 and 1944. When Meyers married again in 1943, the witness was instructed to explain to Mrs. Meyers how to drive the blue Cadillac. Mrs. Meyers personally used the car in 1943 and at times the witness would drive her on shopping tours or to social functions. It was stored in the hotel garage thoughout the year 1943 and until the summer of 1944 when Meyers was transferred to Wright Field. Mettee was transferred there also. At Meyers' direction he flew in an army airplane from Dayton to Washington in order to drive the blue Cadillac to Dayton where he delivered it to Meyers' quarters. At appellant's order, he arranged for the transfer of the title of the automobile from Curnutt to Meyers or his wife. The car was constantly in appellant's possession while at Wright Field. When Meyers retired from active service in 1945, he directed Mettee to drive the 1942 Cadillac from Dayton to his residence at Bayville, Long Island, which was done. In the latter part of October, 1947, after Mettee had been released from the army, he went from his home in Rochester, Pennsylvania, to Huntington, New York, to see Meyers, at the latter's request. At Meyers' suggestion he registered at the hotel under an assumed name. Meyers told him that he was being investigated and that Lamarre was trying to blackmail him. He asked Mettee to testify, if he were questioned, that he had obtained from Lamarre authority to drive the blue Cadillac on the occasions when he did drive it, and to say that during the winter of 1942 and 1943 Lamarre drove the car from Dayton to Washington but due to heavy weather he could not return and was forced to leave the car in Washington, and that the witness did not know how the car was taken to Dayton. Meyers told him that if his testimony concerning the automobile turned out to be of any value he would give him $2,000. Proof of subornation was furnished when, with respect to a conversation between Meyers and Lamarre in a hotel lobby on October 3, 1947, Lamarre was asked, "Was there any discussion about a Cadillac automobile?", to which he answered: "I was to say that the Cadillac automobile was purchased for the company by Meyers on my instructions

and that I had gone to Washington a few weeks after the car was delivered and I had driven it back to Dayton, and that on several occasions I had driven the car to Washington, but because of bad weather I had gone back on the train and it remained here in Washington for some time and then later on when I came in again I would pick the car up and drive it home." He was then asked, "Was that the truth?", to which he replied, "No, it was not." Our conclusion is that the second count was sustained. Lamarre testified to the subcommittee in the manner charged; his testimony was admitted by him, and otherwise proved, to be false; and evidence was introduced that Meyers suborned the perjury. 3. As to furnishing and decorating the apartment. On this subject the pertinent portion of the indictment is as follows: "* * * In the course of his [Lamarre's] testimony on these dates it became material whether the cost of redecorating the apartment of Bennett E. Meyers at 2400 Sixteenth Street, N. W., Washington, D. C., in the year 1941, in the approximate amount of $10,000 had been paid for out of the funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio. Knowing the facts to be that it had, Bleriot H. Lamarre wilfully and contrary to his oath falsely testified before the subcommittee on the dates and at the place aforesaid that the aforesaid redecoration and cost of redecoration of the said apartment of Bennett E. Meyers was a gift from himself, Bleriot H. Lamarre." During his appearance before the subcommittee on the morning of Saturday, October 4, 1947, Lamarre said he had never made Meyers a present of a value of more than $100 and that all gifts from him and his wife, such as those made at Christmas, amounted to no more than $400. After lunching with Meyers and one of the latter's attorneys, he volunteered at the beginning [ 171 F.2d 810 ] of the afternoon session this statement: "There is one thing I would like to say before we proceed. That is, you laid a great deal of stress this morning on what you called gifts to General Meyers. I would like to amplify my statements on that, because at the time I did not consider it a gift, but it was after General Meyers had come to Washington, he had an apartment decorated, and I paid for the decoration of that apartment, and the furnishings."9 He said to the subcommittee that the cost of furnishing the apartment was paid by Aviation Electric checks, which was true; but he sought to transform the transaction from a company expenditure into a personal gift from him by belatedly charging it to his own salary account, after originally charging it to expense. It was indeed true, therefore, as he told the senators, that the checks, although drawn by the company, were charged against his personal salary. At the trial of Meyers, Lamarre admitted the expenditure was by the company and not by him. His confession was corroborated because the essential falsity of his testimony before the subcommittee is shown in this:

although bookkeeping entries were made to charge $10,000 to his salary account, that account itself was false, and fraudulently set up. His actual and comparatively meagre salary could not cover the decorating cost. [ 171 F.2d 811 ] There was no real difference in result to the company between the device of setting up a fictitious salary and remitting most of it to Meyers in cashiers' checks, and the device of charging to a fictitious salary account company checks drawn for Meyers' personal benefit. The latter was simply another method of secretly channeling Aviation Electric's money to Meyers. The company's books and cancelled checks furnish corroboration of Lamarre's testimony that he had sworn falsely with respect to furnishing the apartment. Moreover, Miss Davis, the decorator, told the jury she dealt with Meyers only, although Lamarre told the subcommittee he informed her of his desire to present the appellant with the cost of the decoration. Miss Davis said Meyers told her "that he would give me checks on a little company that he owned or had an interest in — I don't remember just the words, but they satisfied me enough so that I was willing to take the check." She added that he gave her the name of the company as "the Aviation Electric Corporation of Dayton or Vandalia." Appellant asserts Lamarre's characterization of the payment as a gift was made under the prodding of the subcommittee; a partially true but wholly immaterial assertion.10 He originally and voluntarily described the transaction so that in law and in the fair meaning of language it amounted to a gift even though he disliked the word. Lamarre was reluctant to use the word "gift" only because he thought of a gift "as some item you give a man," and his position before the subcommittee was that the $10,000 was a payment of a moral obligation, a return due because of Meyers' favors to him. Moreover, as has been pointed out, Lamarre entered a plea of guilty with respect to this charge. As he had done with respect to the first two counts, Lamarre testified that he committed this perjury at Meyers' suggestion and solicitation. From what has been said, we find the third count to have been established. Lamarre gave before the subcommittee the testimony charged as perjury; its falsity was proved by him and by corroborative evidence; and there was proof that Meyers suborned it. In addition to his reasons for reversal which have been discussed and disposed of in the foregoing portion of this opinion, appellant argues his conviction should be set aside because the subcommittee before which Lamarre gave his perjured testimony was not lawfully constituted as such, and therefore was not "a competent tribunal" spoken of by the perjury statute. He discerns a variance between the indictment's allegation that the Senate committee "on April 19, 1947, created a subcommittee" and the proof from the committee chairman and counsel that a subcommittee was created in mid-April by the chairman, who announced to the full committee the names of the senators whom he had appointed as members of it. Appellant says the subcommitte was invalid because it was not created by

The dissenting opinion. asserts it was reversible error to allow Rogers to testify at all as to what Lamarre had said to the subcommittee. 135. That theory is. obviously confuses the creation of the subcommittee with the appointment of its personnel. but we deem it proper to refer. "The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error. chief counsel to the senatorial committee. Later in the trial the government introduced in evidence a stenographic transcript of Lamarre's testimony at the senatorial hearing.2d 813 ] 2d at page 446: "* * * Here there was no attempt to prove the contents of a writing. to be sure. 100 F.. we conclude that it was legally constituted.C. He testified that he took down the questions and answers that were put to Brzezinski on that day.11 Here there was no attempt to prove the contents of a writing. United States. The argument lacks substance because the evidence shows it is the unvarying practice of the Senate to follow the method of creating and appointing sub-committees which was employed in this instance. the issue was the earnings of a partnership.2d 714.a resolution of the full committee. the rule is limited to cases where the contents of a writing are to be proved. [ 171 F. As applied generally in federal courts." The reference is to the fact the William P. It called the stenographer who took the notes of the proceedings before the grand jury." In other words. A somewhat similar situation was presented in Herzig v. 99 F. Rogers' testimony was equally competent. because only one of the three senators then present had been among the five originally appointed in April.2d 812 ] But practically all Lamarre's testimony was given on October 4. under which the indictment was laid. Rogers. the testimony of Lamarre given on that day cannot be considered as perjury nor can appellant be convicted of suborning it. that the district judge erred in excluding the oral testimony as to the earnings of the partnership.C.A. 18 U. The transcript made from shorthand notes of his testimony was. The federal courts have generally adopted the rationale limiting the `best evidence rule' to cases where the contents of the writing are to be proved. Since they were a minority of the subcommittee. Statements alleged to be perjurious may be proved by any person who heard them. "has nothing whatever to do with any perjury or subornation of perjury committed in connection with an inquiry by a committee of the House of Representatives or Senate of the United States.A. [ 171 F. others excluding it.S. did not dictate it. Appellant's assignment of error concerning the court's conduct. 1947.12 the court said. and his examination on October 6 was largely repetitious. United States. however.2d 368. 1947. as briefly as possible. In that opinion the court said: "The first fact for the government to prove was the giving of the testimony charged in the indictment. not what the transcript contained. when a quorum was present. was applicable. Swift & Co. United States.D. After pointing out the real nature and scope of the best evidence rule. and his complaint concerning government counsel's argument to the jury. to the proposition advanced in the first division of the dissenting opinion which is filed herewith. 1938. was permitted to testify as to what Lamarre had sworn to the subcommittee. that he made a transcription in typewriting from the notes. 304. It is asserted that the section of the District of Columbia Code. but it was not the only admissible evidence concerning it. In that case the trial court had excluded oral testimony concerning the earnings of a partnership on the ground that the books of account were the best evidence. the issue was what Lamarre had said. §§ 1621. * * * An assistant United States attorney who was present in the grand jury room also testified to the substance of what Brzezinski said on that occasion. 69 App. as well as by a reporter who recorded them in shorthand. only two senators were present at the hearing. 1622]. The argument that a quorum was not present on October 4. It is contended that the court erred in admitting this testimony on the ground that it was `not the . evidence of what he had said.S. The proceedings of that day contain the perjurious statements described in all three counts. 198 F.C. some holding the oral testimony admissible. To accept the argument would be to overrule our decisions in O'Brien v. 18 U. 232 [1948 Criminal Code. 69 App. 146 F.C. 1938. based upon a misconception of the best evidence rule. On October 6. 66. and Behrle v. they could not legally function except to adjourn." A contention identical with that made in the dissenting opinion here was rejected by the United States Court of Appeals for the Second Circuit in 1912 in Brzezinski v. D. this differentiation has been adopted by the courts. 65. who had examined Lamarre before the subcommittee and consequently had heard all the testimony given by him before that body. In his brief here the appellant characterizes this as a "bizarre procedure" but does not assign as error the reception of Rogers' testimony. which for convenience were recorded in books of account after the relevant facts occurred. A further ground for reversal is the court's alleged error in denying appellant's motion before trial to dismiss the indictment. in our view. decided by the United States Court of Appeals for the Second Circuit in 1945. and was admissible whether given before or after the transcript was received in evidence. however. §§ 231. made this transcription himself. 146 F. For that reason. do not impress us as requiring discussion. therefore. After consideration of all appellant's points with respect to the subcommittee sitting on October 4. On the precise question of admitting oral testimony to prove matters that are contained in books of account. his criticism of the court's charge to the jury. appellant says only the federal perjury statute. which we are not prepared to do. We hold. At the opening of the dissent it is said.2d 444. the courts have divided. Generally. on the theory that the transcript itself was the best evidence of Lamarre's testimony before the subcommittee.

It is quite clear that Meyers was in no way prejudiced by the order in which the evidence against him was introduced. The testimony continued for two days. Rogers then testified: "I will try to give the substance of the testimony. when you have a prosecution based on perjury. who has to depend on his memory as to what was said. After remarking. testified at the hearing before the referee that he and Light each owned fifty per cent of the capital stock of the corporation but that no stock certificates had ever been issued to either of them. The court denied Meyers' motion. § 1178. "Now. had the transcript been first put in evidence. and the government was not attempting to prove what it contained. regardless of whether the testimony was reported or whether it was not.J. William Kochansky. the judgment entered pursuant to the jury's verdict will not be disturbed. instead of proving what the testimony was by someone who happens to be present. Rogers was not asked what the transcript contained but what Lamarre's testimony had been. technically. Lamarre testified before the Committee in executive session. the principal witness called by the Government was Mr. nor does it appear that his position before the jury would have been more favorable had the transcript been offered on an earlier day of the trial. the issue was what Lamarre actually had said. Mr. not a legal cliche. as the appellant asserts. * * * I am sure your Honor appreciates that I do not remember . I am of strong opinion that the judgment in this case should be reversed. insisted that the procedure was "preposterously unfair". An official stenographic record was made of the proceedings. in which the Ninth Circuit said: "* * * it was equally competent to prove that testimony [of the plaintiff in error] by a witness who was present at the trial and heard the testimony given. Rogers' testimony would have been incompetent is. we think.2d 324. [ 171 F. he moved for a copy of the transcript. but the prosecutor insisted upon proceeding as he had planned with the witness. 810. It is quite apparent that the appellant misconceives the scope of the `best evidence' rule." Counsel for the defense. The mistaken notion that. that you ought to lay a foundation for it or ought to put the transcript in evidence. 1925. The trial judge said that it seemed to him that the transcript ought to be made available to defense counsel. 7 F. * * *" To the same effect is Boitano v. That was then done. on the ground that the executive proceedings of a Senate Committee are confidential. 129 F. The matters discussed in the second division of the dissenting opinion have been covered adequately. and the transcript is 315 typewritten pages. See 4 Wigmore on Evidence. you have the right to proceed the way you are doing. Any one who has heard an oral statement made and remembers it may testify to what was said. Rogers. When Meyers was indicted. 325. in the earlier portion of this opinion. When the trial began. There is no substance in the criticism. it is clearly seen that it was neither "preposterously unfair". after all.. will you tell the Court and the jury in substance what the testimony was that the defendant Lamarre gave before the Committee concerning the Cadillac automobile?" Two counts of the indictment related to this automobile. voiced by the appellant and in the dissent. in Re Ko-Ed Tavern. PRETTYMAN. There is also a legal cliche that the best evidence rule applies only to documentary evidence". The appellant objected to this testimony on the ground that the books of the bankrupt corporation were the best evidence of the matter under inquiry and that the parol evidence offered was inadmissible because the nonproduction of the books had not been satisfactorily explained. the prosecution could present its proof in any order it chose. nor unfair at all. and you have a transcript of particular testimony on which the indictment is based. I. The United States Attorney opposed. and the witness being present. Circuit judge (dissenting)." We regard the principle set forth in the cases which we have cited as being. but an established and sound doctrine which we are not prepared to renounce.2d 814 ] Since both methods of proving the perjury were permissible. of the fact that Rogers testified early in the unduly protracted trial and the transcript was introduced near its close. That rule is applicable when the purpose of proffered evidence is to establish the terms of a writing. only Senators. United States. objecting. I think so for two reasons.2d 806. 344." As we have pointed out. He was asked by the United States Attorney. the best evidence rule does not have the application which the dissent here seeks to give it: "As to Light's half ownership of the bankrupt corporation. Appellant's counsel had a copy of the transcript from the second day of the trial. Affirmed. who was counsel to the Committee. of course. to permit the transcript of Lamarre's evidence to be introduced after Rogers had testified. Mr. The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error. In this case there was no attempt to prove by parol either book entries or the terms of written instruments. the clerk. but it seems to me * * * that. The court at once called counsel to the bench and said to the prosecutor: "Of course. Rogers. * * *" The Court of Appeals for the Third Circuit held. president of the company. 22 C. "* * * there is a line of cases which holds that a stenographic transcript is not the best evidence of what was said. there was no issue as to the contents of the transcript.best evidence. * * * I do not think that is hearsay under the hearsay rule. 3rd Ed. With the best evidence rule shown to be inapplicable.' This is a frivolous objection. the dissenting opinion asserts that the rule is outmoded and that "the courts ought to establish a new and correct rule. based on the erroneous idea that the best evidence rule had application. the reporter. and had full opportunity to study it and to cross-examine Rogers in the light of that study. William P. 1942. Since we perceive no prejudicial error in appellant's trial.

The practical elements are these: The transcript showed exactly what Lamarre told the Committee. "preposterously unfair". Defense counsel then read the portions which they deemed material. On Tuesday. the complainant's interpretation of the alleged perjured testimony. The substance of testimony was this. "I stated at the outset it is just my recollection.. or conclusion. offered the whole transcript of Lamarre's testimony in evidence as an exhibit. Is it not a fact that nowhere in his testimony did the defendant Lamarre on October 4th or 6th. and the objection sustained. were matters of inference. The Committee was the actual complainant in the perjury charge. or "substance". Rogers was its representative. commenting. Mr. which was two weeks later and the eleventh day of the trial. on direct. as it was about to close its case. whether he said what is alleged to be the truth. testify that Bennett E. It lacked the minimum elements of fair play essential to our concept of a fair trial. saying that Rogers had not. an advantage later magnified by what occurred on attempted cross-examination. Indeed. The court denied the motion. Is it not a fact that all of his testimony. the transcript] speaks for itself". the "substance" was a short summation. i. the redecoration of Meyers' apartment and Meyers' interest in the Aviation Electric Corporation. been "interpreting" Lamarre but had stated "the substance". The problem has both aspects. It is obvious that what the witness gave as "substance" was an essence of his own distillation and not an attempt to reproduce the whole of Lamarre's testimony. Counsel for the defense agreed with that proposition and moved to strike all of Rogers' direct testimony as to what Lamarre's testimony had been. translating it into approximately what the indictment attributed to the alleged perjurer." He repeated that comment in effect several times. The prosecutor first produced the oral summation. out of the mouth of the complainant.. I do not think that is proper crossexamination. the Government. The difference between the presentation of elemental facts and the piecing of them together so as to reach a conclusion is basic. March 9th. I doubt that anyone would say that the prosecutor could first have put into evidence the transcript of Lamarre's testimony and thereafter have produced Rogers to give to the jury from the witness box his own summation of it. Upon the reserved cross-examination of Rogers. A similar question was then asked.2d 816 ] I need not elaborate the tremendous advantage thus gained by the Government. The court sustained the objection.2d 815 ] The notable characteristics of this testimony of Rogers are important. Rogers then answered as to his "recollection". Defense counsel reserved part of his cross-examination until he could read the transcript. The witness did not purport to be absolute in his reproduction but merely recited his unrefreshed recollection. The same process was followed in respect to the matters covered by the other counts of the indictment. In the presence of the unimpeached transcript. under oath and on the stand. taken as a whole. exactly that developed. Then. or whether he said what is alleged to be false. The principle runs through much of the law of evidence. word for word. The foregoing was on Wednesday. * * *. In each instance. Whether he testified as alleged. I don't think he ever used those words. Can a prosecutor do by so simple and obvious a maneuver that which the law otherwise forbids as unfair? Can he thus transform into sworn evidence from the box that which is otherwise only argument from the rail? I do not think so. the sum of the practical aspect of the matter is that the prosecutor put to the jury at the opening of his case. Finally counsel asked a specific question as to Lamarre's use of the word "gift" (which we note was the key word in Count Five). February 25th. Thereupon counsel dropped that line of examination." Defense counsel inquired of Rogers if it were not a fact that "the substance of Lamarre's testimony with reference to the Cadillac car" was so-and-so.1 One is evidence and the other argument." And then he gave "in substance" the testimony in respect to the Cadillac car. about half a printed page in length. and it was admitted. I reach my conclusion upon both practical and theoretical considerations. the second day of the trial. and it was received without objection. the following occurred: "Q. The prosecutor and one of his assistants then read to the jury such portions of the transcript as they deemed material. and his recollection on each of the three matters bears a striking resemblance to the succinct summations of the indictment. which the court said "is an entirely different thing". [ 171 F. Fay: I think that is purely a question of law. and the prosecutor objected on the ground that "the record [i. Meyers was not financially interested in or connected with the Aviation Electric Corporation? A. or summation.exactly the substance of the testimony. He would have been met with a ruling that "the transcript speaks for itself". e. [ 171 F. Thus. Rogers was the counsel who interrogated Lamarre before the Committee. "Q. to be gathered from his answers to many questions. even though it was . The court interrupted and said that counsel was asking the witness "to construe" Lamarre's testimony and that since the jury had heard the testimony read it would have to determine what its meaning was. There are differences between Rogers' recollection and the transcript which are vital in the case. To my mind. negatives such an interpretation? "Mr. when defense counsel attempted to cross-examine as to "the substance". as defense counsel characterized it. Then he produced the transcript. the foregoing procedure was. e. he was blocked because of the presence of the transcript. 1947. But the words and expressions charged to him by the indictment do not appear in the transcript. "The Court: Objection sustained. objected to.

But absent such impeachment. A deed to real estate is different. the writing is immutable evidence from the date of the event. I am of opinion. The principle is that as between human recollections the law makes no conclusive choice. and to that alone. the court iterates an error when it says that the best evidence rule is limited to cases where the contents of a writing are to be proved. intelligent. even though there be a stenographic report. In my view. whereas human recollection is subject to many infirmities and human recitation is subject to the vices of prejudice and interest. at least. But as between a document itself and a description of it. I realize that there is a line of authority that (absent or incompetent the original witness) a bystander who hears testimony or other conversation may testify as to what was said. or description. is the latter . not for the purpose of proving its own contents. being actually the instrument of conveyance. and quite ready to hold.temporarily on counsel table and not yet in the clerk's hands. the same doctrine would admit in evidence any opinion. because the former is certain and the latter is subject to many frailties. and a trial court is probably not the place to inaugurate a new line of authority. it is merely evidence of the contract. But rules of evidence were originally judge-made and are an essential part of the judicial function."7 But we have before us no such situation.2d 818 ] witness' testimony during a two-day hearing and (2) the recollection of one of the complainants as to the substance of that testimony. and official stenographic reports are relied upon in many of the most important affairs of life. The writing is offered as evidence of an agreement. From the theoretical viewpoint. its procedures are directed to that [ 171 F. the law accepts the former and excludes the latter. It possesses every characteristic which the most literal devotee of established rules of evidence could ascribe to written evidence of a contract as justification for preference of such writing over the recollection of the parties. From the theoretical point of view. It may be remarked at this point that the transcript in the case at bar is a document. The basis for the decisions is succinctly stated in the 1892 case quoted as leading by Professor Wigmore: "Stenographers are no more infallible than any other human beings. It is my view that for this exceedingly practical reason the reception of Rogers' summation in evidence was not permissible. the writing may be attacked for forgery. I know that courts are reluctant to do so. cold record.3 There is also a legal cliche that the best evidence rule applies only to documentary evidence. alteration or some such circumstance. The contract itself is the agreement between the parties. The writing is not the contract. Presented with that choice. To be sure. Statutes such as the statute of frauds do not provide that a contract be in writing. I know of no reason why the judicial branch of Government should abdicate to the legislative branch so important a part of its responsibility. not challenged for inaccuracy or alteration. they provide that the contract be evidenced by a writing. The repeated statement in cases and elsewhere that the best evidence rule applies only to documents is a description of practice and not a pronouncement of principle.6 As between two observers of an event. it makes a conclusive choice only as between evidence which is certain and that which is uncertain. Stenographic reporting has become highly developed. So as between the recollection of the parties to a contract evidenced by a writing and the writing itself. the law will not accept the evidence of one and exclude that of the other.5 I recognize the view that such matters should be left to Congress. The impression given by a succinct summation by a live witness on the stand cannot be corrected or offset by the later reading of a long. that the rules of evidence reflected by the cases to which I have just referred are outmoded and at variance with known fact. The purpose of offering in evidence a "written contract" is not to prove the contents of the writing. the law accepts the certain and rejects the uncertain.4 The trial judge in this case was confronted with that authority. Nor was the prejudice cured by the availability of the transcript to defense counsel for cross-examination. or summation of elemental facts otherwise provable in precise accuracy. no one has disputed the correctness of the transcript. The law is concerned with the true fact. It should permit no procedure the sole use of which is to obscure and confuse that which is otherwise plain and certain. and while as a rule they may be accurate. We need not venture into full discussion of all the principles involved.8 In the present instance.2 And there is a line of cases which holds that a stenographic transcript is not the best evidence of what was said. in such a sense as to exclude the testimony of an intelligent bystander who has heard and paid particular attention to the testimony of the witness. summation and interpretation was argument and not evidence. and honest. because the law cannot say which is more accurate. and that the courts ought to establish a new and correct rule. or that a written memorandum of it be made.2d 817 ] objective. and therefore it will not do to lay down as a rule that the stenographer's notes when translated by him are the best evidence of what a witness has said. a court referred to "Experience having demonstrated the impartiality and almost absolute accuracy of the notes of court stenographers" as the reason for legislation making admissible as evidence a court stenographer's report. the case poses this question: Given both (1) an accurate stenographic transcription of a [ 171 F. although there is authority that it too is merely evidence of the agreement between the parties. and with that alone. Even as early as 1909. But I do not know why an appellate court should perpetuate a rule clearly outmoded by scientific development. The rationale of the so-called "best evidence rule" requires that a party having available evidence which is relatively certain may not submit evidence which is far less certain. the law rejects the former and accepts the latter. they are not always so. If that were so in this case. The doctrine that stenographic notes are not the best evidence of testimony was established when stenography was not an accurate science.

1943. that the offensive act must be alleged with precision. "In other words. Mr. Conviction required the Government to prove the allegation as made. and he [Meyers] made the arrangement that you were to endorse them in blank and he would take possession of them. 1940. the first factual question in the prosecution. he endorsed it in blank and left it at the company office where Meyers had access to it.000 was advanced in 1942. The transcript is.] He put all of the money in and he owned all of the stock? "Mr. and you held the stock and then you endorsed them over to Meyers and he took the certificates. Lamarre: That is right. I find some support for my view in the authorities. Lamarre: Yes. Lamarre testified that Meyers had both. as I said. "I never said he said that. seemed to qualify the traditional view. says he did. Meyers was called upon to defend against the allegation made. and he identified a list which showed that Meyers advanced $58. Mr. he said both ways. owned the company: Aviation Electric? A. and that oral evidence would not be admissible when such transcript could be obtained. that question is not here. It said that "Where a stenographer has not been employed. He even testified flatly. in the first count. Conversely. No one claims that he did. First. "So that Lamarre did not say. 1942. the best evidence. Lamarre: That is right. it would seem that since practically all testimony is now taken by stenographers. He said that the named incorporators were "dummies". a transcript of the stenographer's notes would be the best evidence. He said that when the stock was transferred on the records to him (Lamarre). has this to say: "However. and that no other misdeed. That is a very specific. as you understood it. as follows: Q. unless we first note with attentive care exactly what this indictment says Lamarre told the Senate Committee. since it is a primary rule of evidence that the best evidence must be produced. Rogers replied. Financial interest in or connection with a corporation is of two principal sorts. indisputable fact." (Italics supplied.10 II. The first count of the indictment charged that Lamarre testified falsely that "Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia. during those years [i. To say that it is. e. precise charge. I take it as elementary that an indictment must allege the commission of an act and not mere rascality. 1941. however proved. The issue now before us cannot be resolved correctly. "[Q. What Lamarre told the Committee was. he must reproduce as accurately as he can the whole of that testimony and cannot give merely his own summation. will support conviction. of Meyers. "[Q.000. did I understand you to say that Lamarre testified that he or General Meyers. owned the stock. It relates to financial interest or connection of any sort on the part of Meyers in or with the corporation. Rogers testified. and thus in the defense. 1946 or 1947] or any of them".. Lamarre: Yes. did you not? "Mr. Also it is quite clear and easily understood. It relates to any one of the years 1940-47." Second. it was borrowed from General Meyers. it can rarely happen that anyone can testify to more than the substance of what was testified * * *." And when asked.310 to the corporation.2d 819 ] entry which showed Meyers as the sole original stockholder. after discussing the cases. 1944.)9 And Volume 2. Section 693. or indeed even understood.] So you understood all of the time that for all practical purposes he owned the business. is that correct? "Mr." And there is authority to the effect that even where a witness is permitted to give the substance of prior testimony of another. that upon the trial the Government must prove the commission of the act alleged. I do not suggest that a stenographer's report is unimpeachable. "That [the stock transfer to Lamarre] was just a bookkeeping transaction. we note that Lamarre never made the direct assertion in the language the indictment recites.admissible as evidence in a trial of the witness for perjury? I think not. He said he was the owner of the stock — ." He testified that at the end of 1941 the corporation owed Meyers $30. "I don't think he ever used those words. we note that Lamarre repeatedly testified to the precise contrary of what the indictment charged he said. in ruling upon the problem. As we have already noted. and that an accused need defend against no proof except that of the act alleged. without any payment on your part. the company actually had no money. 1945. that Meyers had no connection with the company?" Mr." And again the record shows: Q. is to apply a meaningless formula and ignore crystal-clear actualities. The indictment charged that Lamarre made three specific false statements to the Senate Committee. of course. Ohio. owner and creditor. He also testified that Meyers put up any money which the corporation needed and that Meyers was the sole creditor of the corporation. in reference to finances." And again Lamarre testified: "Of course. As early as 1878 the Supreme Court. of which amount $20. is that correct? "Mr. He told the Committee that Meyers put up all the money for the stock upon the incorporation. The principle and not the rote of the law ought to be applied. Well. The proof did not establish that Lamarre told the Senate Committee what the indictment. Rogers. as a matter of simple. clarity and certainty. in summary. He identified the original book [ 171 F. of Wharton's Criminal Evidence. and none other. and it established that he told the Committee what the third and fifth counts say is the truth. The very first questions by defense counsel upon the crossexamination of the witness Rogers at the trial developed the nub of the matter: "Q. for all practical purposes.

his loans evidenced by notes and secured by pledge of all the stock. Lamarre asserted and never denied Meyers' interest in some of the years 1940-47. 1941. It is perfectly true that if Lamarre made the statement ascribed to him by the indictment. Upon such proof. I cannot agree with that proposition. The court says that Lamarre tried to persuade the Committee that Meyers bore to the corporation "merely the relation of creditor". Upon the trial below. moreover. as Bleriot H. The witness actually said that the person was a substantial and secured creditor of the corporation. upon many questions and answers. 1946. The witness may have been guilty of perjury. having paid nothing for the stock and having endorsed the certificate in blank and left it physically available to Meyers. The Government had to prove that Lamarre made that statement. the insistence of the witness Rogers was that Lamarre told the Committee that Meyers was not financially interested "except as a creditor". Lamarre's perjury would be established. Throughout his testimony there was no intimation that the corporation had any financial support of any sort except that of Meyers. by repeated and unequivocal statements. that. 1941 and 1942. conviction under the indictment as drawn could not stand. Lamarre is alleged by the indictment to have told the Committee that Meyers had no interest in the corporation during the years 1940. and the court concludes from the evidence as a whole that Meyers had no interest "except that he was a creditor and held the capital stock as collateral".2d 821 . The unspoken major premise to the Government's contention and the court's position is that a creditor upon a promissory note of a corporation and pledgee of all its capital stock has no financial interest in or connection with the corporation. he did not say what the indictment says he said. and that is what the Government had to prove in order to sustain conviction. We are examining an allegation in an indictment which purports to recite what a witness said on the stand in a congressional hearing. he did not state that Meyers had no interest in any of those years. when we pressed him with questions. 1944. some of them narrow and technical. The Government has simply failed to prove one of the essentials of its case under the indictment as drawn. as the court finds. "Q. If Lamarre told the Committee that Meyers had an interest during three of the eight years named. the conviction must be sustained. But to my mind the record of what Lamarre told the Senate Committee conclusively shows that he made perfectly clear to the Committee. for all practical purposes Meyers was the owner. interested in the company? A. "Q." It is impractical to quote in this opinion the whole of the testimony upon the point. The same exception runs through every claim in the Government's brief before us. 1945. he supplied all the money the corporation needed when it was in need. I do not agree with the court that appellant's contention in this connection is based upon one question and answer. that Meyers was the sole financial backer of the company. And that is what the indictment says he told the Committee. The opinion of the court recites that "Meyers advanced considerable sums for working capital and took therefor the company's promissory notes which were secured by the pledge and delivery to him of the certificates evidencing all its capital stock" and that "by the end of 1942 all Meyers' loans had been repaid. 1947. in fact. This particular question is not "Was the alleged statement false?" The question is "Did Lamarre make the alleged statement?" It seems plain to me that if. But we are not construing a statute. and. in view of the fact that Meyers had put up all the money and had given the stock in the company. whereas the question under consideration at this point is the proof necessary to establish that Lamarre made the alleged statement. he didn't deny that Meyers was. and that during the years 1940-42 Meyers was a creditor of the corporation in large amounts. The indictment recites that his testimony was that a certain person had no financial interest in or connection with a corporation. — but he said. Neither do I agree with the court's view that if Meyers' interest in the corporation during any of the years named be established." The court finds and recites that Lamarre insisted that the stock "did not belong to Meyers all the time but actually became his [Lamarre's] when the notes were paid. The charge was premised upon allegations in the indictment that "The fact was. Certainly my conclusion is. as best I can read the record.2d 820 ] whole of Lamarre's testimony before the Committee. "Q. No. or any of them. It seems to me that the court is thinking about the proof necessary to establish the falsity of the statement recited in the indictment. in respect to this count. So the court's view of Lamarre's testimony is that Meyers owned the stock in 1940. And he did not deny or state falsely in that sense that Meyers was connected with the company? A. the whole expression before us is "interested in or connected with". as the testimony was left. 1941 and 1942." The notes were paid at the end of 1942. the term "interest in" has many meanings. Lamarre made many statements and representations which the record may indicate were false and which he later repudiated. Therein lies the confusion. 1943. Lamarre then knew. in that sense at least. But he did not. The second charge against Meyers (Count Three of the indictment) related to a Cadillac automobile. and if it were proved that Meyers had an interest in any one of those years. Of course. No. everybody agrees that Lamarre made it clear to the Committee that Meyers was a creditor of the corporation in large amounts during the years 1940. And in that sense at least financially interested in the company? A. We cannot rewrite the indictment so as to allege that Lamarre said something else. That is right. 1942. that when the stock was transferred on the record to him (Lamarre). As I understand it."Q. the contention is based upon the [ 171 F. that that automobile had been [ 171 F. In the third place. but he clearly was not guilty of the perjury charged by the indictment. that Meyers was the originator and first sole stockholder of the corporation. even suggest that Meyers had no financial interest in or connection with the corporation in any of the years 1940-47. So that actually. Yes? A. he was merely a record holder.

400. It came near the end of the second day of his testimony. kept it in his garage in Washington (the company being located in Ohio). it was perjury to say that the purchase was "for the use" of the corporation because in truth it was "for the personal use" of Meyers. one true and the other false. The Government and the court put much stress upon Lamarre's reference to the car as the "Company car" and to his having driven it once from Ohio to Washington. a use of the corporation. At any rate. even though on other matters he testifies truthfully. Unless he said one and not the other. He made no direct statement to the Committee as to whose use the car was purchased for. if either of two impressions. He said that the bills were paid by corporation checks. Again we must note with care exactly what the indictment charged. what Lamarre told the Committee. he is not guilty of perjury. The problem posed by this phase of the case is not that presented when a witness swears both truthfully and falsely in the same testimony." None of these elemental facts has been disputed. Bleriot H. Meyers * * * had been paid for out of the funds of the Aviation Electric Corporation". or sole stockholder." Again we must note with care what the indictment says. The testimony of Lamarre relating to the automobile is comparatively short. actual truth. The question is: Did he thereby convey a false impression? If what he actually said fits what the indictment says was the truth of the transaction. . it seems to me.2d 822 ] which facts are admittedly true. I have some difficulty in drawing a clear line between purchases of cars for the use of a corporation and purchases of cars by a corporation for the personal use of an officer. a Cadillac. conviction for perjury fails. that the car was bought and titled in the company name. Ohio). that Meyers made arrangements to get the insurance. Unless his testimony was clear in that difference. that Meyers had the keys to it. in my view. The critical question posed by its allegations was: For whose use was the car purchased? According to the indictment. that Meyers picked out the car. In other words. can be gathered from a true recitation of elemental facts. The third count of the indictment charged that Lamarre. I can find in Lamarre's testimony no clear inference that the car was purchased for the use of the corporation in critical contradistinction to a purchase for the use of Meyers. In the case at bar. what the truth was and. conviction upon this indictment. it is frequently so considered in business circles. No one disputes that literal fact. that Meyers had access to it. first. Lamarre testified to a number of simple facts about the car. Bleriot H. knowing that "the cost of redecorating the apartment of Bennett E. no dispute but that he testified to what the indictment says was the truth. One is perjury.] purchased for the personal use of Bennett E. in many senses. and can be. Lamarre. all of [ 171 F. bought it and took delivery on it.000 and was sold to Meyers' father-in-law for $1. as drawn. and first charged as sales expenses on the corporate books. cannot be sustained. that the car was insured in Washington. I have some doubt as to the validity of the count because of its vagueness. The difficulty arises because it is alleged that Lamarre falsely characterized the transaction as a gift from himself to Meyers. or sole creditor. He identified the corporate checks. the use of the officer. Lamarre clearly. and arranged for the insurance." Thus. To my mind. Be that as it may. The contention of the Government and the holding of the court is that this factual testimony is so positive to the effect that the car was purchased "for the use of the Aviation Electric Corporation" as to make it perjury. had the keys. that it was sold because "We had no further use for it". and no one has since alleged otherwise. since the fact was that the purchase was "for the personal use" of Meyers. stockholder or creditor is. I cannot find in Lamarre's testimony a distinction between company use and Meyers' personal use so clear and sharp as to constitute one a perjury when the other is the fact. that the car remained in Washington. testified falsely before the Senate Committee that the cost of the redecoration "was a gift from himself. Lamarre nevertheless wilfully and contrary to his said oath testified falsely * * * that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation. What he said was that the company had one car. arranged for its purchase. the payment might be correctly described by both the expressions used. that he (Lamarre) was the only officer in the company who had access to the car. that they "had not had too much use for it. to my mind. emphatically and in complete detail testified before the Committee that the cost of redecorating Meyers' apartment was paid for out of the funds of the corporation. and even though he recants that which is false. the indictment recites. prosecution for this perjury fails. bought it in Washington. That witness may be guilty of perjury in that part of his testimony which is false. an affirmation that the car was purchased for the use of the company and not of Meyers. Frequently. that Meyers kept it in his garage. second. purchased from the Capitol Cadillac Company in Washington. But my dissent does not arise from that view. It seems to me that what the indictment recites as the truth is as fair an inference as any other from Lamarre's actual testimony. that the car cost $3. it is a logical and fairly obvious conclusion from that testimony that the car was purchased for Meyers' use. Meyers. So far there is. the other truth. drawn on corporation bank accounts. In all these respects he testified to what was the literal. as to them Lamarre testified truthfully before the Committee. It makes the difference between "paid for out of the funds of" the corporation and "a gift from himself" the difference between truth and perjury. His meaning in that respect is a matter of inference. But those scraps of testimony are not. the indictment says. Lamarre certainly told the Committee that Meyers selected the car. where Meyers lived (the corporation was in Dayton and Vandalia.

The decorating of the apartment was not mentioned. "Mr. Rogers: And it had no consideration." Throughout that afternoon and the next morning. He identified the checks and explained at great length the book entries. Lamarre was questioned at great length and in great detail concerning this transaction. Rogers: Was it part of any business deal at all? "Mr. Lamarre: That is correct. Lamarre: As I said. Much is made of the word "gift". I was sort of obliged to do that for him. In a legal sense. Until almost the close of this interrogation. Rogers: No legal consideration. that was exactly what was done. during the course of which much discussion was had of "gifts" from Lamarre to Meyers and from Meyers to Lamarre. That is. Lamarre: That is right. that Meyers was the owner of the corporation. It is my view that upon examination of the official stenographic transcript of what Lamarre said to the Senate Committee. what do you consider this $10. "Senator Cain: But that was never your thought or intention. He testified to the constituent factual elements of the transaction. you are a college graduate and president of the corporation. The Government says that the account was spurious. which his interlocutors attempted. what was it? "Mr. "Senator Cain: Let me ask one question. "Mr. I would like to amplify my statements on that. We cannot rewrite the indictment to charge that whereas the truth was that Meyers owned the corporation and all its profits. including what was charged as Lamarre's salary. and I paid for the decoration of that apartment. not only by a separate chance phrase but by the whole purport of his testimony. "Mr. But the indictment does not raise that issue. Rogers: I do not know what it could be. Rogers: What do you consider this $10. "Senator Cain: In what other sense would it be anything other than a gift or a present or a gratuity to a friend? "Mr. I considered it a moral obligation on my part to do something for General Meyers because of the things he had done for me. Lamarre falsely represented that the salary credited to him was his own and that charges against it were gifts by him. "Gift" was merely an inference. "Senator Cain: It happens to have been paid from the corporation? "Mr. it was your personal obligation by personal wish to a personal friend? "Mr. and that the account was merely a device for siphoning profits to Meyers.000 now. Lamarre: In my own personal feelings about it. Lamarre said: "There is one thing I would like to say before we proceed. . "Mr. because it seems to me to be a departure from the basic principle that conviction can be had only upon proof of the acts alleged in the indictment. Lamarre: That is correct. having first been charged on the corporate books as a business expense. "Mr. Lamarre: It could have been considered a gift. it was pretty much. "Senator Cain: But the transaction in itself has absolutely nothing to do with your corporation business? "Mr. I dissent from the decision of the court. Rogers: Look. After the luncheon recess. What could it possibly be considered if it was not an outright gift for you said you wanted to do something for General Meyers. and I am not talking about Saturday morning or Saturday afternoon. In each of the three instances. Lamarre: No." Upon this record Lamarre's use of the expression "gift" plays little part in the question of perjury. he was interrogated at length throughout the morning concerning his and the corporation's relationship with Meyers. or characterization. The facts as shown by the record are quite simple. but it was after General Meyers had come to Washington. the trial court should have directed a verdict of acquittal upon this indictment.000). and repeatedly reasserted his claim that he caused this payment because of what Meyers had done for him. The real issue of truth or falsity revolves about the salary account itself. is that right? "Mr. it undoubtedly would be a gift. Lamarre: That is correct.000 a repayment for a loan to General Meyers? "Mr. You understand what I mean. I am speaking now about now. he had an apartment decorated. the expression "gift" was not used. Lamarre: No. it was not. to put into his mouth. or I wanted to do it for him because of the things that he had done for me. The issue was not what Lamarre said generally or in other respects. that Lamarre never had any such salary. it was that it was. His statements in these respects were true. and the furnishings. "Mr.Lamarre told the Committee that the cost of redecorating Meyers' apartment ($10.000 was? [ 171 F. with limited success. Lamarre did not urge that expression upon the Committee. Then the following occurred: "Mr. That he perjured himself in other respects is irrelevant in this prosecution. The basic issue presented by the defense was whether Lamarre said what the indictment alleged that he said. Was this $10. "Mr. was later removed from that account and entered as a charge against his own salary account. Lamarre: No. Lamarre: I told you how I felt about it. you laid a great deal of stress this morning on what you called gifts to General Meyers.2d 823 ] "Mr. the stenographic transcript showed that he told the Committee what the indictment alleged to be the true fact. When Lamarre appeared before the Committee. because at the time I did not consider it a gift. so it must have been a gift.

. Art. as summarized by the CA in the decision now on appeal.R. J. based at Camp Vicente Lim in Calamba. and PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted at Arguson’s rest house in Barangay Lambingan. 00-181929 of the Regional Trial Court (RTC). the Regional Special Operations Group IV (RSOG-IV). Acting on this bit of information. willfully. PO3 Reynaldo Ramos of the Philippine National Police Regional Office IV (PNP R-IV). MONALYN CERVANTES y SOLAR. a team led by SPO2 Geronimo Pastrana. 181494 March 17. @ Tisoy. as amended. The People’s version of the incident. allegedly committed as follows: That. 2009 PEOPLE OF THE PHILIPPINES. accused-appellant and three others were charged with violation of Sec. on or about April 5. (RA) 6425 or the Dangerous Drugs Act of 1972. Philippine Currency. . he instructed the would-be-buyers G. a forensic chemical officer of the same regional office. accused ISIDRO ARGUSON y ARENDELA. Article III of Republic Act No. In the ensuing trial. Inspector Lorna Tria. The RTC found accused-appellant Monalyn Cervantes guilty beyond reasonable doubt of violation of Section 15. Plaintiff-Appellee. in the City of Manila.1 Accused-appellant and her co-accused pleaded not guilty to the charge. is as follows: On April 5. received a tip from a deep penetration agent (DPA) about a group of drug traffickers led by Isidro Arguson operating in Cavite. 2007 of the Court of Appeals (CA) in CA-G. confederating and mutually helping one another. 2000. Tanza. PO3 Ramos and PO2 Balosbalos. 00476 which affirmed the April 23.C. the prosecution presented in evidence the oral testimonies of William Todavia.00) PESOS. for the amount of FIVE HUNDRED THOUSAND (P500.76) GRAMS OF METHAMPHETAMINE [HYDROCHLORIDE].VELASCO. acting as poseur-buyers. were introduced by the DPA to Arguson as the buyers of PhP 500. acting in common accord. a regulated drug. vs. without authority of law or the corresponding license therefor.000. PO3 Ramos. No. 2004 Decision in Criminal Case No. 2000. Philippines. III of RA 6425 (selling or distributing a regulated drug).2 Upon arriving at the rest house. simultaneously showing him a bundle of money. No. FOUR HUNDRED SEVENTY THREE POINT SEVENTY SIX (473. Cavite.: This is an appeal from the Decision dated July 19. CR-H. sell. Accused-Appellant. MONALYN [CERVANTES] y SOLAR @ Mona. Since Arguson did not have enough supply of shabu in the premises. conspiring. and P/Sr. WILSON DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard. Laguna. CONTRARY TO LAW. The records show the following facts: In an Information dated April 7. deliver and give away to a poseur-buyer. did then and there. Branch 53 in Manila.000 worth of shabu. unlawfully and feloniously.R. JR. 2000. and within the jurisdiction of this Honorable Court. commonly known as shabu. 15.

and Richard Requiz. For the purpose.00. (c) Exhibits "D" and "D-1" to "D-6" – Black plastic bag with markings.. who was holding a black plastic bag. and 2. like accusedappellant. only to return a few minutes later this time with Arguson.000. Thereafter. and handed it to PO2 Balosbalos. 15. Arguson then took from Del Monte the bag. the substance tested positive for methamphetamine hydrochloride or shabu. 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. who in turn gave him the bundle of boodle money. 00476. he hired a vehicle owned by Todavia. 2000. After being shown the money bundle. Vito Cruz branch. where she allegedly met ARGUSON for the first time. 2000 to the Chief. Before the appellate court. 2000. C/I Geronimo prepared and completed Chemistry Report No. No. Vito Cruz branch. Laboratory Service. Wilson Del Monte. whom he did not know prior to that incident.3 Arguson instructed the would-be-buyers to wait for someone who will come out from the nearby Estrella St. SO ORDERED. to wit: Accused-appellant testified that after she did laundry works at her house in Estrella Street near F.8 On May 18.B. and is sentenced to Reclusion Perpetua and to pay a fine in the amount of Php500. when he bumped a parked van. of Republic Act No. Accused-appellant and her scampering companions were later arrested and brought to and booked at Camp Vicente Lim. 2004. Arguson died during the course of the trial resulting in the dismissal of the case against him. which. Very much later." particularly stating that the "forensic chemist who actually conducted the laboratory examination on the specimens .to follow him to Pasay City. a commotion happened near his post. requesting for qualitative analysis of the contents of the six transparent plastic bags. he was boarded into the van together with the other accused. two (2) younger male persons. 2002.7 On April 23. pursuant to which the RTC forwarded the records of the case to this Court. Mateo. accused-appellant urged her acquittal on the ground of "insufficiency of evidence. accused-appellant left. and who are hereby ACQUITTED. D-115800 on the crystalline substance. wherefrom a man alighted and cursed him. Finding the prosecution’s evidence insufficient to prove the guilt of accused WILSON DEL MONTE and RICHARD REQUIZ beyond reasonable doubt. Pasay City. and approached PO3 Ramos to check if he still had the money. accused REQUIZ testified that on the date and time in question. The fallo of the RTC Decision reads: WHEREFORE. there was a commotion going on in front of the restaurant. passing by F. She then saw a woman who alighted from a nearby van and pointed her out to her companions. They were taken to a cemetery where another vehicle came and took them to Camp Vicente Lim. Finding accused MONALYN CERVANTES Y SOLAR GUILTY beyond reasonable doubt of violation of Sec. (b) Exhibit "C" – Memorandum of RSOG-IV dated April 5.76 grams of shabu packed in six small self-sealing transparent bags. 6425 as amended. in view of the foregoing. to buy ice cream. 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. in the hearing of March 4. CR-H. Ocampo St. were also boarded into the same van. At about three o’clock in the afternoon of that day. Conformably with People v. were objected to by the defense: (a) Exhibit "B" – Chemistry Report No. Per her report. he was riding a borrowed bicycle on his way to the Cultural Center.C.5 While not stated in the CA decision. the prosecution. judgment is hereby rendered: 1.4 inclusive of its sub markings. while he was watching a vehicle near [McDonald’s].6These testimonies remained uncontroverted.B. On April 6. her youngest child asked her to go to [McDonald’s].9 the Court directed the transfer of the case to the CA where it was docketed as CA-G. Harrison on April 4. offered in evidence the following exhibits. D-115800 prepared by C/I Geronimo. and six (6) self-sealing transparent bags allegedly containing the confiscated shabu. 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. one of whom [was] an old man boarded her inside the van causing her to lose hold of her child. On the other hand. accused-appellant filed a Notice of Appeal. he was suddenly approached by a policeman who arrested him and boarded him inside a vehicle together with CERVANTES and REQUIZ. whom she later came to know as DEL MONTE and REQUIZ. 2004. Harrison St. as may be expected. For his part.R. Finally. later found to contain 473. saying "pulis ako wag kang aalis dyan[!] " The man left and when he returned. Thereafter. accused-appellant emerged from Estrella St. accused DEL MONTE testified that he was a parking boy around Vito Cruz and that on the day in question. accused CERVANTES was with him. in front of the McDonald’s branch in P. Del Monte testified. When they arrived thereat at about 4:30 in the afternoon. As he moved backward from where he stood. Apart from the witnesses’ affidavits and other documents. 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.. Article III. and (d) Exhibit "F" – Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3 Ramos as witnesses. PO3 Ramos gave the prearranged signal to indicate the consummation of the drug deal and introduced himself as policeman. The CA decision likewise summarized the defense’s account of what purportedly transpired.

as indicia of conspiracy. asked the operatives to wait. sir and handed it to Balosbalos. 2000 when they were apprehended. carrying the bag would relatively have the more serious implication being in itself a punishable act of possession of regulated drugs. and Del Monte. as evidence. thus veritably reiterating their principal arguments raised in the CA. the CA. and has presented the corpus delicti. Even if PO3 Ramos saw him to have held the bag for Arguson. 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. thru the Office of the Solicitor General. has identified accused-appellant and her complicity in Arguson’s illegal trade. The parties manifested their willingness to submit the case on the basis of the records already submitted. accused-appellant filed a Notice of Appeal of the CA affirmatory decision. the probative value and admissibility of the forensic report prepared by C/I Geronimo. accused Monalyn Cervantes’ complicity with accused Isidro Arguson in the sale of shabu has been established by the testimony of PO3 Ramos. who had resigned from the service. As between the two acts performed. the testimony of the prosecution’s principal witness. a laundry woman. 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. Del Monte came accompanying Arguson carrying the drug-containing plastic bag no less. The CA rejected accused-appellant’s lament about one Inspector Tria testifying on the chemistry report she did not prepare. the trial court acquitted Requiz and Del Monte. We start off with the most basic. As the appellate court stressed. Arguson. Yet. the People. But the trial court. affirmed her conviction. disappearing from the scene and then coming back with the principal player."14 But two paragraphs later. On March 24. 2008. Both offered the defenses of denial and instigation. during the actual buy bust––are being indicted. On the other hand. together with Richard. what happen[ed]? A: Arguson took the plastic bag from Wilson. 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. There is no suggestion that accused-appellant. sir. Wilson. accused-appellant emerged from said street. and later re-appeared. with confederating with each and several others to sell shabu. there is no other evidence which can support the charge of conspiracy with Arguson and Cervantes x x x. they were four (4)." The CA added the observation that absent any evidence overturning the presumption of regularity in the performance of official functions. PO3 Ramos. when all these accused here return with Monalyn Cervantes. 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. it could have been possible that he was merely asked by Cervantes or Arguson to carry the bag. but convicted accused-appellant. must be upheld even if she did not personally testify in court. sir. 2007.15 Before us then is a situation where two persons––accused-appellant. a car park boy."10 By its Decision11 dated July 19. Fiscal Formoso: That’s part of the answer x x x now.allegedly recovered from the accused was not presented in court x x x [and] hence. Balosbalos gave Arguson the boodle money while I flash the signal x x x then we apprehended them. in the company of the ostensible pusher. considering certain circumstances engendering reasonable doubt as to her guilt. The Court’s Ruling After a circumspect study. counters that the prosecution has established that the buy-bust transaction took place. 2007. while at the crime scene. who identified accused-appellant and described her role in the conspiracy to sell shabu. stating: "Clearly. The court does not find the evidence sufficient to pass the test of moral certainty to find accused Del Monte liable as charged. Atty. For its part. Cruz: Your honor. on the basis alone of the testimony of a witness. In the witness box. this Court required the parties to submit supplemental briefs if they so desired. the Court resolves to acquit accused-appellant. may we move to strike that out x x x. each testifying that they just happened to be near or passing by McDonald’s at about 4:30 in the afternoon of April 4. ever handled the merchandise or its container. The overt acts performed by accused-appellant. Arguson. PO3 testified that. after being told by Arguson to wait for someone who will come out from the street whence Arguson would enter. On August 17. Without hesitation. in its observation that "it could have been possible that [Del Monte] was merely asked by x x x . 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 was no clear identification of the contents of the confiscated sachets. PO3 Ramos categorically stated that Del Monte was among the four who emerged with Arguson from a street. Q: Wilson? A: Yes. checked on the purchase money. consisted of allegedly verifying whether the poseur-buyer still had the purchase money.13 As may be noted. 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.

In context. And as we stressed in Malillin v. but an unreliable one as against Del Monte. handled the seized plastic bag and its contents. one consistent with the innocence of the accused persons and the other consistent with their guilt. xxxx 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. in such a way that everyone who touched the exhibit would describe how and from whom it was received." extended to Del Monte the "benefit of the doubt. or when a witness has failed to observe its uniqueness. the date and time when such transfer of custody [was] made in the course of safekeeping and use in court as evidence. 1(b) of the Dangerous Drugs Board Regulation No. then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction. that at any of the links in the chain of custody over the same there could have been tampering. In every prosecution for illegal sale of dangerous drug.Arguson to carry the bag. what is crucial is the identity of the buyer and seller. a reversal of the appealed decision is indicated on another but more compelling ground. The Court cannot reluctantly close its eyes to the likelihood. contamination and even substitution and exchange. 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. Series of 2002. In other words. and the payment for it."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. or sold by. or the "Guidelines on the Custody and Disposition of Seized Dangerous Drugs. right after the buy bust. where it was and what happened to it while in the witness’ possession. The same standard likewise obtains in case the evidence is susceptible to alteration. 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. coupled with the presentation to the court of the traded prohibited substance. when both accused are complete strangers to the policeman? To paraphrase an unyielding rule." defines "chain of custody. if the inculpatory testimony is capable of two or more explanations. in authenticating the same.22 Sec. We refer to the postulate that the prosecution. We shall explain. and the condition in which it was delivered to the next link in the chain. the object and its consideration.an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable. or at least the possibility. tampering. and the final disposition." a benevolence denied to accused-appellant without so much of an acceptable explanation. the "chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed.25 (Emphasis added. a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied. of the individuals who came into direct contact with or had physical custody of the seized regulated items.20Essential. having failed to positively and convincingly prove the identity of the seized regulated substance. the delivery of the thing sold.23 As a mode of authenticating evidence. alteration or substitution of substances from other cases––by accident or otherwise––in which similar evidence was seized or in which similar evidence was submitted for laboratory testing. only PO3 Ramos testified for the specific purpose of identifying the evidence.24 The need for the punctilious observance of the chain-of-custody process in drug-related cases is explained in Malillinin the following wise: While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain. Any reasonable mind might ask: Why the contrasting treatment? Why consider PO3 Ramos as a highly credible eyewitness as against accused-appellant. however.16 But even if we were to cast aside the foregoing equipoise rule. and Laboratory Equipment.) As the Court distinctly notes in this case. from the seizure of the prohibited drug up to the time it is offered into evidence. the condition in which it was received. the accused. This means that on top of the key elements of possession or sale. 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. People. In the witness box. Implicit in these cases is first and foremost the identity and existence. 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. is deemed to have also failed to prove beyond reasonable doubt accusedappellant’s guilt. or when its condition at the time of testing or trial is critical. 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.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. this would ideally include testimony about every link in the chain. He did not name the duty desk officer at Camp Vicente Lim to . 1. he did not indicate how he and his companions. Hence. therefore." 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. the exhibit’s level of susceptibility to fungibility. this object evidence being an integral part of the corpus17 delicti18 of the crime of possession or selling of regulated/prohibited drug. in appropriate cases is that the identity of the prohibited drug be established with moral certainty. Controlled Precursors and Essential Chemicals.

a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the seized items. the prosecution cannot maintain that it was able to prove the guilt of appellants beyond reasonable doubt. Bandang. the accused persons were convicted of illegal sale of shabu even if the forensic chemist who prepared the corresponding laboratory report was not presented. was not also presented. what did you do? A. Needless to stress. PO2 Balosbalos. Given the foregoing perspective. Now. as earlier described.29 In this case. After informing their rights and the reason why we arrest them we brought them immediately to our office in Canlubang. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang. Thus. you were able to arrest all the accused here.e. the apprehending officer/team having initial custody and control of the drug shall: immediately after seizure and confiscation. I made the booking sheet and I requested for their medical/physical examination x x x. his report carries the presumption of regularity in the performance of his function and duties. what did you do there? A. 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. 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. 21(1). even if she wanted to. Corollarily. as in this case. As the Court observed aptly in People v. D-1585-00 only now. Uy. Now.. II of RA 9165. thus. under Section 44 of Rule 130. thus: Q. Laguna. and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. what about this Shabu. To be sure. What is on record is Exhibit "C." which. x x x entries in official records made in the performance of official duty are prima facie evidence of the facts therein stated. we wrote: x x x In People vs. 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. as embodied in Sec. PNP R-IV Crime Laboratory Service. has held that the nonpresentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal. who was in possession of this Shabu x x x when you left the place and proceeded to Canlubang? A. the objection shall be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. the Court."28 It cannot be overemphasized that Inspector Tria was really not part of the custodial chain. Inspector Tria. Adding a negative dimension to the prosecution’s case is the nonpresentation of C/I Geronimo and the presentation in her stead of Inspector Tria to testify on the chemical report C/I Geronimo prepared. PO3 Ramos admitted as much. when you reach your office.31 (Emphasis added. Omero’s reports that the seven sachets of white crystalline substance were "positive for methylamphetamine hydrochloride" or shabu are.) It should be pointed out.1avvphi1. i. there is no reasonable assurance that no tampering or substitution occurred between the time the police seized the black bag in P. And she did not as she could not. is a memorandum26 PO3 Ramos prepared27 dated April 5. sir.30 Just as clear is the fact that the exacting chain of custody rule was not observed. implying that the identity and integrity of prohibited drug was safeguarded . Art. notably in People v. it is fairly evident that the police operatives trifled with the procedures in the custody of seized prohibited drugs in a buy-bust operation. While Inspector Tria can plausibly testify on the fact that C/I Geronimo prepared the chemical report in the regular course of her duties. Then. 2000 from the RSOG-IV Director to the Chief. Now. however. In net effect. And C/I Geronimo. 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. therefore. 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. no one testified on how the specimen was cared after following the chemical analysis. conclusive in the absence of evidence proving the contrary. she.zw+ Second. Withal. it must be stressed that Atty. "[T]hese questions should be answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. The prosecution cannot. He should have objected to their admissibility at the time they were being offered. the analyzing forensic chemist. too. 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. Ong.whom he specifically turned over the confiscated bag and sachets at least for recording. a representative from the media and the Department of Justice (DOJ). we ruled that a forensic chemist is a public officer and as such. no physical inventory was made and no photograph taken nor markings made on the seized articles at the crime scene. after their arrest. In it. submitting for qualitative analysis the white crystalline substance confiscated by the buy-bust group. Ocampo St. Otherwise. xxxx Q. Otherwise. 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. or his/her representative or counsel. Enriquez raises his objection to the Initial Laboratory Report and Chemistry Report No. xxxx Q.

and (3) accused Bandang. Lest it be overlooked. Art. the CA Decision dated July 19. These lapses. affirming that of the RTC. Sanchez. To a point. is. the presumption is precisely just that—a mere presumption. This presumption is. the existence. due execution. 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. Once challenged by evidence. Kimura the Court said that in establishing the corpus delicti.R. and handling of seized drugs. Unfortunately. a circumstance not obtaining in this case. 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. did not raise any objection to the chemical report during trial. 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. that police procedures may still have some lapses. as amended. and the presentation of. At any rate. . however. thus. simply because drug enforcement operatives tend to compromise the integrity and evidentiary worth of the seized illegal items. Inspector Tria’s testimony on. and the integrity and evidentiary value of the evidence seized must be shown to have been preserved by the apprehending officer or team. This aberration is oftentimes in turn attributable to the unfamiliarity of police operatives of extant rules and procedures governing the custody. The Court is cognizant of the campaign of the police and other drug enforcement agencies against the growing drug menace in the country. control.36 any taint of irregularity vitiates the performance and negates the presumption. Branch 53 in Manila which found her guilty of violating Sec. a demand which may be addressed by hewing to the chain-of-custody rule. pushers and/or lesser players. III of RA 6425 and imposed upon her the penalty of reclusion perpetua and a fine of PhP 500. But a final consideration. a justifying factor for the prosecution to dispense with her testimony. No.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. must be recognized. sometimes still end up in the acquittal of illegal drug manufacturers. In this case.. WHEREFORE. disputable and may be overturned by affirmative evidence of irregularity or failure to perform a duty. SO ORDERED. the buy bust team committed serious lapses in the handling of the prohibited item from the very start of its operation. she must perforce be exonerated from criminal liability.32 It does not prove compliance with the requisite chain of custody over the confiscated substance from the time of seizure of the evidence. at best. The Court need not belabor this matter anew. even when nabbed in flagrante. addressed. non-compliance with the legal prescriptions of the Dangerous Drugs Act. however. 00476. 2007 in CA-G. not necessarily fatal to the prosecution of drugrelated cases. as we made abundantly clear in People v. C/I Geronimo’s resignation from the service is not. the error of which the PNP R-IV command later compounded. which failure produces a serious doubt as to accused-appellant’s guilt. Second. i. as in this case. 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. "[f]irst. their best efforts. 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. an opportune time to remind all concerned about these rules and procedures and the guiding jurisprudence. And as earlier discussed. and authenticity of the results of the chemistry analysis.throughout.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. x x x [it] cannot be regarded as binding truth. So it was that in People v. 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. and explained in terms of their justifiable grounds."38 For failure then of the prosecution to establish the guilt of accusedappellant beyond reasonable doubt. particularly successful honest-to-goodness buy-bust operations.33 then the prosecution cannot maintain that it was able to prove the guilt of the accused beyond reasonable doubt. 15. proof beyond reasonable doubt demands that "unwavering exactitude"34 be observed. standing alone. To be forewarned is to be forearmed. 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. the reliance on the presumptive regularity is tenable. is hereby REVERSED and SET ASIDE.C. And to put things in the proper perspective. This is. unlike here where accused-appellant objected to Inspector Tria’s competency to testify on the Geronimo chemical report.e. In this regard. CR-H.000. the chemistry report in question only established. et al. distributors. (2) there was a compelling reason for not presenting the examining forensic chemist. The facts and the law of the case call for this kind of disposition.

DECISION BRION. 2005 Decision2 of the Regional Trial Court (RTC). plaintiff-appellee.: This case confronts us once more with the buy-bust of a prohibited drug and the procedural difficulties this type of operation poses for the police as well as for the prosecution.A. SALVADOR SANCHEZ y ESPIRITU. No. Quezon City. vs. CR-H. 9165 under an Information that states: xxx . 2006 Decision1 of the Court of Appeals (CA) in CA-G. ANTECEDENT FACTS The prosecution charged the appellant before the RTC with violation of Section 5. The CA affirmed the April 14. Article II of Republic Act (R.R.) No. that found the accused-appellant Salvador Sanchez y Espiritu (appellant) guilty beyond reasonable doubt of violation of Section 5. 2008 PEOPLE OF THE PHILIPPINES. J. accused-appellant.C. 01095. Article II of R. No. Branch 103.SECOND DIVISION G.A.R. On appeal is the September 11. 175832 October 15. No. 9165 (the Comprehensive Dangerous Drugs Act of 2002). meriting him the penalty of life imprisonment.

who was wearing a crew cut in court said that when he bought shabu from the accused his hair style was different. The RTC summarized the material points of the testimony of SPO2 Sevilla as follows: x x x while he was on Station 3 duty at Talipapa. x x x PO Sevilla then gave the pusher P100.the request for laboratory examination of the specimen confiscated from the appellant.02) grams of white crystalline substance containing methylamphetamine hydrochloride. The informant introduced PO Sevilla to the pusher. D-366-03 prepared by Forensic Chemist Paul Jerome Puentespina.SPO2 Levi Sevilla (SPO2 Sevilla) . SPO1 Brigido An. the prosecution offered the following as exhibits: Exhibit "A" . PO Sevilla and his informant walked towards the place pointed by the informant and met the drug pusher. then and there. dispense.6 After receiving the plastic sachet. deliver.in the trial on the merits that followed. took the stand for the defense. A preoperational report was submitted of the undertaking. An entrapment team was formed consisting of himself as poseur buyer. willfully and unlawfully sell. Exhibit "B" . 2003 a confidential informant arrived at around 4:30 noon and reported that there is a person who has been selling shabu.the specimen taken from the appellant.7 4 was sent to PDEA and given a control number. Novaliches. The prosecution presented its lone witness .the brown envelope where the seized evidence was placed after it was examined by Forensic Chemist Puentespina. Said other policemen rushed to the crime scene while PO Sevilla grabbed the right hand of the accused and introduced himself as a cop.. and the initials of the police officer who arrested the accused and who received the specimen in exchange for the buy bust money. dispense. respectively. It was his first time to entrap at that place as a poseur buyer. E). Quezon City. not being authorized by law to sell. Exhibits "E". At 5:00 p. The accused was frisked and PO Sevilla recovered the P100. respectively.sworn Certification to show that the Chemistry Report was subscribed and sworn to before an Administering Officer. Their marked Anfra van was parked along Quirino Highway.. Quezon City on April 6.3 On cross examination.the Initial Laboratory Report prepared by Forensic Chemist Paul Jerome Puentespina. Philippines. which is a squatter's colony located at the edge or side of Lualhati St. deliver."9 In the hearing of December 4. 2003. G) in the right side pants pocket of the accused who was later brought to Station 3. zero point zero two (0. He told him that he badly needs shabu para pumayat. Nida Detera (Nida).00 (the marked money) and in return the pusher gave him a plastic sachet of shabu.8 [Italics and footnotes referring to the pertinent parts of the records supplied] The RTC dispensed with the testimony of Forensic Chemist John Paul Puentespina after the parties stipulated that "the items allegedly confiscated from the accused were submitted to the crime laboratory for examination and the findings were put into writing. PO Sevilla scratched his head as a prearranged signal to his colleagues who were deployed nearby. PO Sevilla identified the transparent plastic sachet on which he placed his initial "LS" and the initial "SS" of the accused (Exh. did. PO Sevilla put his initial "LS" on the money given to him to be used at the entrapment. The appellant and his witness.the buy bust money and the initials written therein of the poseur buyer. .5 At the place. PO Sevilla. a dangerous drug. PO Sevilla reiterated his testimony adding that whenever he is tasked as a poseur buyer he always gives as reason that he wanted to be thinner and drug pushers never questioned him about that.00 marked money bill (Exh. Exhibit "F" .That on or about the 6th day of April 2003 in Quezon City. The informant and the pusher talked for a while.the Confirmatory or Final Chemistry Report No. "E-1" and "E-2" . Exhibit "C" . Exhibit "D" .. PO Sevilla talked to the latter. PO3 Virgilio Bernardo. the initials of Forensic Chemist Puentespina. PO2 Manny Paulilis and PO1 Cecil Collado.m. the said accused. Baesa. transport or distribute any dangerous drug. Exhibits "G" and "G-1" . Manotok Subd. distribute or act as broker in the said transaction. Quezon City from where he and the informant walked to Lualhati Street for about 10 minutes as the target scene was about 100 meters away. He reiterated that their Pre-op Report The appellant pleaded not guilty to the charge. Thereafter. transport. CONTRARY TO LAW. the team was dispatched to the target area – at the far end Lualhati Street.

He begged them and shouted. The defense likewise objected to the presentation of Exhibit "H" on the ground that its contents were selfserving. but he refused to do so.12 Nida testified that she was at the kitchen of the appellant's house doing the laundry between 2:00-3:00 in the afternoon of April 6. Hence the identity of the evidence presented against the appellant is doubtful." a former colleague of his uncle. It was only the arresting officer who testified that he confiscated the sachet from the accused. To the prosecution. While the appellant testified that his alleged unlawful arrest transpired at 5:25 p. He narrated that at around 5:25 in the afternoon of April 6." Its decision of April 14. should be given great weight and respect.000." and that the confiscated specimen resulted from an illegal arrest. A total of four persons. 2003." contending that the appellant "had nothing to do with the specimen presented before the court. and how he marked the plastic sachet of shabu he bought from appellant immediately after the latter’s arrest. a lighter was taken from her. at the police station. entered the house. of April 6. and 3:00 p. as well as its failure to follow the proper chain of custody in handling the seized evidence. It imposed on him the penalty of life imprisonment and ordered him to pay a fine ofP50. too. The appellant. and placed him in a detention cell without an investigation being conducted. 01095.m. as the trial court had the chance and the prerogative to hear and appreciate these matters at the trial." The police brought him to Police Station 3. He maintains that the court’s order of conviction was merely based on the good reputation SPO2 Sevilla has established with the court based on the many drug cases he had handled. the appellant himself admitted that he had no knowledge of any adverse reason or ill motive that would induce the arresting police officers to falsely implicate him. Quezon City. 2005.m.17 The prosecution counters with the argument that the trial court’s findings on the credibility of SPO2 Sevilla and the lack of it with respect to the appellant and his witness Nida. he was in his house putting his children to sleep when three (3) police officers suddenly barged into his house. No. the CA affirmed the RTC decision. In his brief15 on appeal. Article II of R. searched the premises. The appellant gave a different version of the events in his testimony of January 30. it only meant that the trial court had known SPO2 Sevilla and had often observed his demeanor as a witness.the Joint Affidavit of the entrapment team and the signature therein by SPO2 Sevilla. who was in bed.11 While inside his cell. The police officers then handcuffed him and asked him to get into a police vehicle. please do not do so. wrongly interpreted the appellant’s appearance and demeanor because "his head was bowed and his eyes were dreamy and sad. this lack of ill motive supports the view that SPO2 Sevilla testified to the truth and his acts should enjoy the presumption of regularity.C. In its decision of September 11. . No. you might just plant evidence in my pocket. SPO2 Sevilla asked him to call his uncle. as she saw the time on the wall clock. the police showed him a plastic sachet and said that it was the shabu taken from him. 2005 found the appellant guilty beyond reasonable doubt of violation of Section 5. he feared that his uncle would think that the confiscated shabu was really taken from him. This person then ordered the appellant to sit down so he (the appellant) could be asked questions. his witness Nida testified with certainty that she witnessed the arrest take place on the same date between 2:00 p. too." the defense argued that no evidence of powder was ever presented by the prosecution witness. pushed the appellant backwards.m. Sonny Catiis. If at all. does not mean that the trial court was biased. 9165. with the appeal docketed as CA-G. The prosecution further argues that the evidence for the defense is incredible and doubtful judging from the testimonies of the appellant and his witness Nida.A. 9165. SPO2 Sevilla described in a clear and unwavering manner how the police team planned for and conducted the buy-bust operation. and held that "PO Sevilla has been a frequent witness in drugs cases and he has already established his credibility before this court. 2003.13 A person entered. The trial court. No. Moreover. and handcuffed him. the appellant contends that the court a quo gravely erred in finding him guilty beyond reasonable doubt for violation of R.R. On Exhibit "G. 2003." "E-2. and forced him to come with them. respectively. The appellant appealed to the CA.10 He recognized one of the policemen as "Sir Levi.14 The RTC primarily considered the reputation of SPO2 Sevilla in giving weight to his testimony. The police officer who conducted the subsequent investigation and to whom the confiscated sachet was allegedly turned over was not identified nor presented as witness." "E-1. "Sir you already frisked me in the house and you did not find anything. frisked him. on the prosecution’s failure to prove that the sachets allegedly recovered from the appellant were the ones submitted to the forensic chemist for examination. but nothing was seized from the appellant. Even the statement regarding the credibility of SPO2 Sevilla. Afterwards. a frequent witness before the trial court in drug cases.00."16 The defense harps. CRH.Exhibits "H" and "H-1" ." "G" and "H. when she heard loud knocks on the door. the appellant and she were frisked. stood up and opened the door.A. The defense objected to Exhibits "E. 2006. all male. Talipapa.

shall not render void and invalid such seizures of and custody over said items. the initial laboratory report showing that the item bought and/or seized from appellant is positive for shabu. 9165. or his/her representative or counsel. there was nothing more for the prosecution to establish.A. and (b) the delivery of the things sold and the payment therefor. the need for entrapment procedures. as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team. Proof beyond reasonable doubt. Thus. it is governed by specific procedures on the seizure and custody of drugs.As to the corpus delicti. the use of shady characters as informants. No. without any objection from the appellant. we resolve to acquit the appellant for the prosecution’s failure to prove his guilt beyond reasonable doubt. The corpus delicti having been proven and even admitted by the appellant. Tan. the type of vehicles and firearms to be used. A buy-bust operation is a form of entrapment employed by peace officers to apprehend prohibited drug law violators in the act of committing a drugrelated offense. (b) a photocopy of the marked money. physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized. the prosecution presented the following: (a) a pre-operation report bearing Unit Control Number 0504-03-07 signed by the desk officer. paragraph 1 of Article II of Republic Act No.(a) the identity of the buyer and seller. and the final chemistry report were all formally offered in evidence. a representative from the media and the Department of Justice (DOJ).19 To prove the legitimacy of the police buy-bust operation. and PO1 Collado. THE COURT'S RULING After due consideration. physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized.20 Because of the built-in danger for abuse that a buy-bust operation carries. Non-observance of the requirements of Section 21.23 when we recognized that "by the very nature of anti-narcotic operations. and the secrecy that inevitably shrouds all drug deals. 9165 In considering a criminal case. The burden of such proof rests with the prosecution which must rely on the strength of its case rather than on the weakness of the case for the defense. rebuttable only by proof of his guilt beyond reasonable doubt. agreed to stipulate on the contents and the veracity of the forensic examinations made relative to the item recovered from the appellant. paragraph 1. No.A. time and general area of operation. specifically . which reads: (a) The apprehending officer/team having initial custody and control of the drugs shall. or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience of those who act in judgment. he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt. police chief and team leader of the station drug enforcement unit. We expressed this concern in People v. the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks. it is critical to start with the law’s own starting perspective on the status of the accused – in all criminal prosecutions. 9165. a representative from the media and the Department of Justice (DOJ). [Emphasis ours] This is implemented by Section 21(a). while the charge was laid after a preliminary finding that a probable cause existed showing that a crime had been committed and the accused was probably guilty thereof. which indicated the type. The request for laboratory examination of the specimen confiscated from the appellant. is indispensable to overcome the constitutional presumption of innocence. The defense. poseur-buyer and members of the buy-bust team. SPO2 Sevilla. and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: x x x Provided. separately from the general law procedures geared to ensure that the rights of people under criminal investigation21 and of the accused facing a criminal charge22 are safeguarded. immediately after seizure and confiscation. or his/her representative or counsel. the criminal trial itself starts with the substantive presumption of the innocence on the part of the accused. and (c) the joint affidavit of the entrapment team signed by the poseur-buyer. in fact. and the respective names of the team leader. [Emphasis supplied] ." The required procedure on the seizure and custody of drugs is embodied in Section 21. the courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses. which states: 1) The apprehending team having initial custody and control of the drugs shall. further that non-compliance with these requirements under justifiable grounds. Article II of the Implementing Rules and Regulations of R. it had proven beyond reasonable doubt all the elements of the illegal sale of dangerous drugs. the object and the consideration.18 Thus. Article II of R. and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. the possibility of abuse is great. the prosecution stresses that it fully proved that the item recovered from the appellant is positive for shabu. immediately after seizure and confiscation. The operation yielded a plastic sachet containing shabu allegedly confiscated from the appellant.

Q: Now you said that you brought the accused to the Police Station. where is it? A: It is in my possession. SPO2 Sevilla . what happened to the Police Station? A: We turn [sic] him over to the Desk Officer. can you identify that Mr. Based on the above testimony. . as indicated by the use of "shall" in its directives. Thus. other than the stipulation regarding the handling and results of the specimen at the forensic laboratory.00 bill to the accused. Q: How about the transparent plastic sachet.also did not mark the plastic sachet of shabu immediately upon seizure. what did you put there? A: I put my initial and initial of the accused. Q: When you grabbed his right hand what did you tell him? A: I introduced myself as Police Officer. what happened next? SPO2 LEVI SEVILLA: A: After I received [sic] I scratched my head. sir. sir. Witness? A: Yes. the plastic shabu sir. Q: Showing to you this plastic sachet Mr. Q: How about the buy-bust money in the amount of P100.The records of the present case are bereft of evidence showing that the buy-bust team followed the outlined procedure despite its mandatory terms. a representative from the media and the Department of Justice (DOJ). Q: What is the purpose? A: Pre-arrange[d] signal. and an elective official. Q: What happened after that? A: I grab [sic] his right hand. Witness.the prosecution’s lone witness . Q: Before you turn over that plastic sachet Mr. SPO2 Sevilla’s testimony and the evidence he identified constitute the totality of the evidence for the prosecution on the handling of the allegedly seized items.00? A: I recovered it from the right pants pocket. Witness? A: We brought him to our station. Witness. The deficiency is patent from the following exchanges at the trial: FISCAL GIBSON ARAULA: Q: Now after you received that shabu or transparent plastic sachet containing shabu and gave the P100. what can you say to that transparent plastic sachet? A: This was the one I purchased from the accused because I have here my initial and the initial of the accused. Q: What did you turn over? A: The accused and the evidences. x x x x24 [Emphasis ours] Other than the markings that SPO2 Sevilla alleged. Q: If that transparent plastic sachet is shown to you. Q: After informing of his constitutional right what happened Mr. it was only marked upon arrival at the police station. Q: After that what happened? A: They swooped down in the scene. Q: Then after that what happened next? A: I grabbed the accused and informed him of his constitutional right. it is clear that no physical inventory and no photograph of the seized items were taken in the presence of the accused or his counsel.

White. the police operates under varied conditions. however. coupled with the presentation in court of evidence of corpus delicti .A.29 Black’s Law Dictionary explains chain of custody in this wise: In evidence. the one who offers real evidence. the prosecution apparently did not want to accept that the police had committed lapses in the handling of the seized materials and thus did not bother to present any explanation to justify the nonobservance of the prescribed procedures.26 Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti: every fact necessary to constitute the crime must be established.A. police procedures in the handling of confiscated evidence may still have some lapses. Section 1(b) of Dangerous Drugs Board Regulation No. These lapses. as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team. the object and the consideration. must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered in evidence. Series of 200230 which implements R. where is it? A: It is in my possession.27 The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed. 9165. Although this regulation took effect on October 18. from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. No. Likewise. 353 Mass. The non-observance by the police of the required procedure cannot therefore be excused. shall not render void and invalid such seizures of and custody over said items. we have considered it fatal for the prosecution to fail to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused. 1. Q: How about the buy-bust money in the amount of P100. Article II25 of R. the last sentence of the implementing rules provides that "noncompliance with these requirements under justifiable grounds. it is nonetheless useful in illustrating how the process of preserving the integrity of the chain of custody of the seized drugs is ensured and maintained. No. That the police failed to approximate these safeguards and the prosecution failed to prove the identity of the specimen allegedly seized and the specimen submitted as evidence during the trial is evident from SPO2 Sevilla himself who testified as follows: FISCAL GIBSON ARAULA: Q: After informing [the accused] of his constitutional right what happened Mr. must be recognized 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. Implicit in all these is the need for proof that the transaction or sale actually took place.the body of the crime whose core is the confiscated illicit drug. the elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller.Com. 9165 may not always be possible under field conditions. many of them far from ideal.We recognize that the strict compliance with the requirements of Section 21 of R.E. 9165 is not necessarily fatal to the prosecution’s case. The "chain of custody" over the confiscated items was not proven Under Section 5. the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence. such as narcotics in a trial of drug case. In the present case. as in the present case. The participation of a representative from the DOJ. V.2d 335. 9165 defines "chain of custody" as follows: "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage.28 In a long line of cases. Q: How about the transparent plastic sachet.00? . and the final disposition. and such evidence goes to the weight not to admissibility of evidence. No. No. and (2) the delivery of the thing sold and the payment therefor. 232 N. the media or an elected official alone can be problematic. 409. It likewise failed to prove that the integrity and evidentiary value of the items adduced were not tainted as the discussions below will show. Witness? SPO2 LEVI SEVILLA A: We brought him to our station.A. For this reason.A. 2002 (or after the commission of the crime charged). 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." Thus. noncompliance with the strict directive of Section 21 of R. and cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence.

this was the only testimony in the case that touched on the chain of custody of the seized evidence. Witness. "C"). While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain. Q: Before you turn over that plastic sachet Mr. did you happen to know where the investigator brought the plastic sachet? A: I gave that plastic sachet first to the table of the Desk Officer and the Desk Officer gave it to the investigator.. labeled and recorded from the time of its seizure. the plastic shabu sir. contamination and even substitution and exchange. All that these exhibits proved were the existence andauthenticity of the request for laboratory examination and the results of this examination. 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. "B"). to which the defense did not object. even the time and place of the initial marking of the alleged evidence are not at all certain as the testimony on this point varies. to its receipt by the forensic laboratory. Evidently. up until it was presented in court and subsequently destroyed – is absent from the evidence adduced during the trial. and how the latter handled these materials. and final Chemistry Report No. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. or when its condition at the time of testing or trial is critical. "A"). 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 a witness has failed to observe its uniqueness. the exhibit's level of susceptibility to fungibility. The stipulation does not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession. in such a way that every person who touched the exhibit would describe how and from whom it was received. In other words. tampering. The recent case of Lopez v. Likewise. personnel within the police hierarchy (as SPO2 Sevilla’s testimony casually mentions) must have handled the drugs but evidence of how this was done. xxxx Q: By the way Mr.e. what did you put there? A: I put my initial and initial of the accused. FISCAL GIBSON ARAULA: That would be all for the witness. The same standard likewise obtains in case the evidence is susceptible to alteration.A: I recovered it from the right pants pocket. stored. from the moment the item was picked up to the time it is offered into evidence. D-366-03 (Exh. has no bearing on the question of whether the specimen submitted for chemical analysis and subsequently presented in court was the same as that seized from the appellant. the initial laboratory report (Exh. To repeat an earlier observation. [Emphasis ours] That the prosecution offered in evidence the request for laboratory examination (Exh. preserved. the condition in which it was received and the condition in which it was delivered to the next link in the chain. It failed to disclose the identities of the desk officer and the investigator to whom the custody of the drugs was given. It would include testimony about every link in the chain. No reference was ever made to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. how it was managed. x x x x31 Significantly. Witness after you turned over to the investigator the plastic sachet. where it was and what happened to it while in the witness' possession. 2003 dispensed with the testimony of the forensic chemist because of the stipulations of the parties. While we are aware that the RTC's Order of August 6. no one testified on how the specimen was handled after the chemical analysis by the forensic chemist. Q: Now you said that you brought the accused to the Police Station. To be sure. 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. we view the stipulation to be confined to the handling of the specimen at the forensic laboratory and to the analytical results obtained. Q: What did you turn over? A: The accused and the evidences. not the required chain of custody from the time of seizure of the evidence. People32 is particularly instructive on how we expect the chain of custody or "movement" of the seized evidence to be maintained and why this must be shown by evidence: As a method of authenticating evidence. the prosecution has not . i. what happened to the Police Station? A: We turn him over to the Desk Officer.

" the second sentence makes a distinction between warrantless seizures and seizures by virtue of a warrant. This step initiates the process of protecting innocent persons from dubious and concocted searches.39 but in every case. the Court concluded that the prosecution failed to establish the identity of the corpus delicti. "marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. or at the nearest police station or at the nearest office of the apprehending officer/team. that the physical inventory and photograph shall be conducted at the place where the search warrant is served. whichever is practicable. the physical inventory and photograph must be conducted in the place where the search warrant was served. People.33 the Court had the occasion to discuss the implications of the failure to comply with Section 21. . this is in keeping with the desired level of integrity that the handling process requires. Kimura. If the physical inventory and photograph are made at the nearest police station or office as allowed by the rules.bust operation. On the other hand. paragraph 1. the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team. as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team. Consequently. [Emphasis supplied] We reached the same conclusion in People v. 1. as it is more in keeping with the law’s intent of preserving their integrity and evidentiary value. No. No. where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused. The Court made a similar ruling in People v. where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. the Court held that the deviation from the standard procedure in antinarcotics operations produced doubts as to the origins of the marijuana. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. In seizures covered by search warrants. the venues of the physical inventory and photography of the seized items differ and depend on whether the seizure was made by virtue of a search warrant or through a warrantless seizure such as a buy-bust operation. Physical inventory and photograph requirement under Section 21 vis-a-vis "marking" of seized evidence While the first sentence of Section 21(a) of the Implementing Rules and Regulations of R.A. Again. the apprehended violator or counsel must be present. 2 of Board Resolution No. however. 9165 states that "the apprehending officer/team having initial custody and control of the drugs shall. shall not render void and invalid such seizures of and custody over said items.proven beyond reasonable doubt the indispensable element of corpus delicti of the crime. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized.38 the inventory and photography of the seized items must be made in accordance with Sec.35 where we again stressed the importance of complying with the prescribed procedure. Laxa. the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. immediately after seizure and confiscation. [Emphasis supplied] Thus. Thereafter. in Zarraga v. More recently. whichever is practicable. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody. in case of warrantless seizures. In People v.37 For greater specificity. physically inventory and photograph the same. the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. Orteza. Consistency with the "chain of custody" rule requires that the "marking" of the seized items – to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence – should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. What Section 21 of R. and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 2936 and on allegations of robbery or theft. further that non-compliance with these requirements under justifiable grounds. to wit: … In People v. in case of warrantless seizures such as a buy. Provided. thus: (a) x x x Provided. Nazareno34 and People v.A. Series of 2002. Santos.

whom the lower court believed because the witness had testified before the court before.40 is to negate the presumption that official duties have been regularly performed by the police officers. Nida. . People. Admittedly. From the perspective of the defense. Branch 103. the testimony of the other defense witness. 2006 Decision of the Court of Appeals in CA-G. leaves much to be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown. its handling and custody. this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot. the September 11.42 In People v. xxx [it] cannot be regarded as binding truth. If the prosecution cannot establish. in the first place. the appellant’s guilt beyond reasonable doubt. fails to fully corroborate the appellant's testimony due to inconsistencies in their respective statements. the prosecution’s whole case still falls. The regularity of the performance of his duties. we cannot help but note that the evidence for the defense is far from strong.R. until its turnover to the forensic laboratory for analysis. People v. Any taint of irregularity affects the whole performance and should make the presumption unavailable. however weak the defense evidence might be. This. Thus. as in this case. we return to the conclusion that we should acquit the accused for failure of the prosecution – due the gapinduced weaknesses of its case – to prove the appellant’s guilt beyond reasonable doubt. and decided on this basis that he was a credible witness. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption of innocence. WHEREFORE. Thus. Cañete. has been viewed with disfavor for it can easily be concocted and is a common defense ploy in most prosecutions for violation of the Dangerous Drugs Act. A court must always decide on the basis of the evidence presented. the defense of denial or frame-up. This gap renders the case for the prosecution less than complete in terms of proving the guilt of the accused beyond reasonable doubt. Thus. Appellant Salvador Sanchez y Espiritu is ACQUITTED on reasonable doubt and is ordered immediately RELEASED from detention. 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. Quezon City is hereby REVERSED and SET ASIDE. as we held in Lopez v.44 Likewise. These weaknesses." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. unless he is confined for any other lawful cause. the defense did not adduce any evidence showing that SPO2 Sevilla had any motive to falsify. Second. The court apparently banked also on the presumption of regularity in the performance that a police officer like SPO2 Sevilla enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. by itself. the presumption is precisely just that – a mere presumption. To hark back to the well-entrenched dictum in criminal and constitution law: the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. is a major error – a violation of due process – on the part of the lower court that the appellate court apparently did not fully appreciate. In this jurisdiction. To reiterate. Without the presumption of regularity. however.43 we also said: While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties. In short. do not add any strength nor can they help the prosecution’s cause. the evidentiary gap in identifying the seized evidence from its turnover by the poseur-buyer. in light of all the foregoing. by itself constitute proof of guilt beyond reasonable doubt. the need for the defense to adduce evidence in its behalf in fact never arises.Conclusion The evidentiary gap in identifying the specimen that the forensic laboratory analyzed brings us back to where we started in analyzing the case – to the presumption of innocence that the Constitution accords the appellant. like alibi. stands out in bold relief. the lower court simply considered his person and past performance. CR-H. To do this. 01095 affirming the judgment of conviction of the Regional Trial Court.C. rather than look at the merits of his testimony. the prosecution must proceed to establish the guilt of the accused by proof beyond reasonable doubt. Once challenged by evidence. starting from this point. not on the basis of any other extraneous consideration not before the court. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellant’s conviction because "First. however. the appellant merely denied that a buy-bust operation took place and claimed that the evidence against him was a planted evidence. SPO2 Sevilla. 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. Santos41 instructively tells us that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. the prosecution presented its lone witness. No. An effect of this lapse.

appellant.R.A. allegedly committed as follows:2 That on or about the 29th day of January 2004. J.SO ORDERED. feloniously and knowingly sell to poseur buyer 0. PEOPLE OF THE PHILIPPINES. Jr. 9165 (R. No. Article II of Republic Act No. No. in the City of Marikina. paragraph 2(3). unlawfully. DECISION CARPIO MORALES. y Burac (appellant) was charged before the Regional Trial Court (RTC) of Marikina City1 for violation of Section 5. SECOND DIVISION G. Philippines and within the jurisdiction of this Honorable Court. appellee. JR. vs. 2008 ELPIDIO BONDAD. without being authorized by law.02 gram of Methamphetamine ..: Elpidio Bondad. Y BURAC. 9165) or the Comprehensive Dangerous Drugs Act of 2002. did then and there willfully.. 173804 December 10. the above-named accused.

when opened. and apprised appellant of his constitutional rights. It was agreed that PO2 Dano’s removal of his cap would signal that the buy-bust was consummated. Insp. 20046 was prepared by P/Sr." Appellant at once took out a "Vicks" container from his right front pocket5 which. a dangerous drug. and PO1 Roberto Muega were at the Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF). Philippines.Hydrochloride (shabu) contained in one (1) heat-sealed transparent plastic sachet. Q487945 to be used as buy-bust money. proceeded to 3 C’s billiard hall at the corner of M. Upon PO2 Dano’s order. and Bonifacio Avenue in Barangka. allegedly committed as follows: That on or about the 29th day of January 2004. in the City of Marikina. Chief Haveria. The buy-bust team thereupon brought appellant and the seized items to the Marikina City Police Station where a memorandum dated January 29. From the evidence for the prosecution. yielded heat-sealed plastic sachets containing substances suspected to be shabu. 2004. Jr. and within the jurisdiction of this Honorable Court. At that instant. D-0094-04E8. in Physical Science Report No. and gave his name as Elpidio Burac Bondad. a laboratory examination was conducted thereon by Police Senior Inspector Annalee R. appellant approached PO2 Dano and asked him if he wanted to buy shabu.. among other things. her findings and conclusion as follows: SPECIMEN SUBMITTED: Three (3) heat-sealed transparent plastic sachets with markings marked as A through C respectively.7 The following day or on January 30. Forro. Office of the Marikina City Police Station. Cruz St. the above-named accused.4 (Underscoring supplied) The cases were lodged at Branch 272 of the RTC of Marikina. par. particularly the testimony of its principal witness PO2 Edwin Dano and its documentary evidence. appellant drew out one sachet in exchange for which PO2 Dano gave the marked one hundred peso bill. unlawfully and feloniously have in his possession direct custody and control 0. 01/29/04" on the sachets that remained inside the "Vicks" container. requesting for the conduct of laboratory examination on the seized items to determine the presence of dangerous drugs and their weight. to which PO2 Dano answered "piso lang. without being authorized by law to possess or otherwise use any dangerous drugs. Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office. which is a dangerous drug.3 (Underscoring supplied) He was likewise charged for violation of Section 11. among others. Within minutes.m.02 gram "EBB-ED POSS 1 01/29/04" . Barangka. together with the confidential informant. PO2 Dano placed the markings "EBB-ED BUYBUST 01/29/04" on the substance-filled sachet sold to him. The buy-bust team. PO2 Nelson Arribay arrived together with a confidential informant. The Chief of the SAIDSOTF.02 gram "EBB-ED BUYBUST 01/29/04" B = 0. the confidential informant pointed to appellant who was then holding a cue stick beside the billiard table as the alias "Jun. the specimen submitted. recorded. POS 1 and 2. addressed to the Chief of the Eastern Police District Crime Laboratory Office. in violation of the above-cited law. the following version is culled: At around 7:05 p. while PO2 Ferdinand Brubio. of January 29. among other things. PO1 Christopher Anos. As the back-up police officers were closing-in. P/Sr. about the rampant sale of shabu in a billiard hall along Bonifacio Avenue. did then and there willfully. Insp..04 gram of white crystalline substance contained in two (2) heat-sealed plastic sachets which gave positive result to the test for Methamphetamine Hydrochloride (shabu). Article II also of R. Jr. Jr. PO2 Dano also requested that appellant be subjected to a drug test. The confidential informant reported. On entering the hall. at once formed a buy-bust team composed of.. at 3:00 P. The conduct of a buy-bust operation was recorded in the police blotter and was coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number NOC-012904-28. who. identified himself. appellant returned the buybust money. PO2 Ramiel Soriano and PO2 Dano who was designated as the poseur-buyer. Marikina City and named a certain alias "Jun" as the vendor. From the container. 9165.A. Still at the place of arrest. handed the "Vicks" container. upon receipt of three sachets. each containing white crystalline substance with following recorded net weights and markings: A = 0. Ramchrisen Haveria. in violation of the above-cited law. PO2 Dano grabbed appellant’s arm. PO2 Dano was given a one hundred peso bill bearing Serial No.M." The confidential informant approached appellant and talked to him. Marikina City. 2004. PO2 Dano removed his cap. No. 2(3). and "EBBED.

(a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug. claimed that he was framed up and gave the following version: On January 29. II of RA 9165 the methamphetamine hydrochloride (shabu) is ordered confiscated in favor of the government for proper destruction by the proper agency. and Roberto U. a dangerous drug. 9165 and is sentenced to suffer the penalty of imprisonment for a period of TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE HUNDRED THOUSAND PESOS (PhP300. a former police officer. 2 [3] of R.00) as provided for in Sec. Under Section 11. while he was playing inside 3 C’s billiard hall. foregoing premises considered. however. SO ORDERED. 2004. the trial court convicted appellant in both charges.11 (Underscoring supplied) By Decision of February 8. PO2 Brubio. y BURAC guilty beyond reasonable doubt of the crime of Violation of Sec. SO ORDERED." Another person who was at his back pushed him out of the billiard hall in the course of which he felt PO2 Brubio reaching his (appellant’s) right front pocket. 9165. Art.00) pursuant to Sec. 9 (Italics and emphasis in the original) Denying the charges against him. telling him "Huwag ka makialam dito. Bondad. Appellant’s defense was corroborated by his son Christian Jeffrey C. The accused is likewise found guilty of the crime of Violation of Sec. to thirteen (13) years. 2(3). whom he knew was a policeman. 2006. the mere act of possessing any dangerous drug consummates the crime. as maximum and to pay a fine of Three Hundred Thousand Pesos (P300. JR. II of RA 9165 and is sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of FIVE HUNDRED THOUSAND PESOS (PhP500. appellant summoned and handed him his wallet containing P2.13 (Underscoring supplied) Specifically with respect to the charge of possession of shabu. disposing as follows: WHEREFORE. 11 par. a dangerous drug.C = 0. the appeal is DISMISSED for lack of merit. the appellate court held: The evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a prohibited drug. he continued playing but PO2 Brubio suddenly handcuffed him and asked him "Sumama ka muna.10 drawing him to restrain the hand of PO2 Brubio. (b) such possession is not authorized by law and (c) the accused freely and consciously possessed said drug. 11 par. Mata who was a "spotter" (referee) at the billiard hall at the time appellant was arrested. Par.02 gram "EBB-ED POSS 2 01/29/04" x-x-x x-x-x x-x-x F I N D I N G S: x x x Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine Hydrochloride. x-x-x x-x-x x-x-x C O N C L U S I O N: Specimens A through C contain Methamphetamine Hydrochloride. in the light of the foregoing. namely. The white crystalline granules found in his possession.A. without legal authority at the time he was caught during the buy-bust operation. the Court finds the accused ELPIDIO BONDAD. appellant.12 the Court of Appeals affirmed the trial court’s decision with modification. took the wallet from his son. were positively identified . 5. Art.00. 2(3). After greeting PO2 Brubio in Bicolano. upon laboratory examination. Finding for the prosecution.000. as minimum. 5 Art. PO2 Brubio. Art.00). The assailed decision is AFFIRMED with the MODIFICATION that the accused-appellant is sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1) day. There is no doubt that the charge of illegal possession of shabu was proven beyond reasonable doubt since the accused-appellant knowingly possessed plastic sachets with white crystalline granules. entered the billiard hall. II of R." He was then made to board a car and taken to the Office of the SAIDSOTF at the police station. II of RA 9165.000. telling him "pera ko yan!" Aware that his son was inside the billiard hall.A. disposing as follows: WHEREFORE.000.

21 of R. and/or Surrendered Dangerous Drugs. No 9165 provides: Section 21.A. plant sources or dangerous drugs. viz: Atty. the present Petition for Review on Certiorari. a dangerous drug. . IN ADMITTING THE EVIDENCE OF THE PROSECUTION DESPITE CLEAR VIOLATION OF SECTION 21 (1) OF R. . Court: Witness may answer the question.A. x x x (Emphasis and underscoring supplied) Appellant claims that no physical inventory and photographing of the drugs took place.15 (Emphasis and underscoring supplied) As the resolution of the second assignment of error is determinative of whether there is still necessity of segueing to the first and third assignments of error. is it not? Witness: We did not make inventory because we simply brought the evidence confiscated. 9165. No.14 (Italics in the original. 21 of R. PO2 Dano indeed confirms appellant’s claim. sir. A reading of the testimony of the poseur-buyer. – The PDEA shall take charge and have custody of all dangerous drugs. . Atty. Custody and Disposition of Confiscated. seized and or surrendered. as well as instruments/paraphernalia and/or laboratory equipment so confiscated. Sec. it shall early on be passed upon. xxxx Atty. appellant faulting the appellate court: I. it was there that the items taken from him were inventoried. . . this is a requirement for the apprehending team to do. III. Puentebella: When you brought him to the police. Puentebella: And you know for a fact that under the new drugs law. Controlled Precursors and Essential Chemicals. hence. . immediately after seizure and confiscation. . Gapuzan: Counsel is asking for a conclusion of law. physically inventory and photograph the same in the presence of the accused or the persons/s from whom such items were confiscated and/or seized. I will object. and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. . a representative from the media and the Department of Justice (DOJ). Appellant claims that there was failure to follow the requirements of Sec.asmethamphetamine hydrochloride or shabu. 9165. for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall. it compromised the integrity and evidentiary value of the allegedly seized items. controlled precursors and essential chemicals. Seized. Instruments/Paraphernalia and/or Laboratory Equipment. IN CONVICTING [HIM] OF THE CRIME[S] CHARGED ON THE BASIS OF THE LONE TESTIMONY OF THE POSEUR BUYER AS AGAINST THE CORROBORATED STATEMENTS OF THE ACCUSED AND HIS WITNESSES. is it not? Pros. Puentebella: You also did not take photographs of the items taken from the accused? Witness: Yes. II.A. . . IN COMPLETELY DISREGARDING THE CLEAR EVIDENCE ON THE EXISTENCE OF IRREGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS BY POLICE OFFICER/S IN THE CONDUCT OF THE BUY BUST OPERATIONS. underscoring supplied) Hence. or his/her representative or counsel. Plant Sources of Dangerous Drugs.

unlike in Pringas. Pringas holds. you did not make an inventory in the presence of the accused nor you did not [sic] make a photograph of the items seized in the presence of the accused. And the defense raised it again during the offer of evidence by the prosecution. the apprehending police officers failed to comply with the above-quoted provision of Section 21 of R.Witness: Yes. 21.A. (Emphasis and underscoring supplied) In the present case.A. italics and underscoring supplied) The Court’s pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations18 of R. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items. Witness that at the time you apprehended the accused. during the cross examination of PO2 Dano. he did not conduct an inventory of the items seized.21 his acquittal is in order.17(Citation omitted. and as long as the integrity and the evidentiary value of the confiscated/seized items. Atty. Puentebella: So it is very clear now Mr. No. "B-2" and "B-3" are objected to for being product of irregular functions of police and therefore fruit of poisonous thinking [sic] and they are not admissible and they were not photographed in the presence of the accused as provided for by Sec. sir. or the media. he immediately marked the seized items which were brought to the Crime Laboratory for examination. by PO2 Dano’s claim. despite PO2 Dano’s awareness of such requirements. Puentebella: Since you did not make any inventory. R. xxxx Atty. sir. viz: x x x Provided. There was thus failure to faithfully follow the requirements of the law. that non-compliance with these requirements under justifiable grounds. as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized. as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team. par. By his admission. No. an elective official. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible.1. as the same would be utilized in the determination of the guilt or innocence of the .A. emphasis. which is the corpus delicti of each of the crimes charged against appellant. 9165. the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R. sir. no photograph of the items was taken. Puentebella: xxxx Yes. Clearly then. a representative from the Department of Justice. however. 16 (Emphasis and underscoring supplied) Exhibits "B" which is the brown envelope. it follows that you did not require them to sign your inventory as required by law? Witness: accused. No. "B-1". 9165. Parenthetically. thus: Atty. This leaves it unnecessary to still dwell on the first and third assignments of error. further. 9165. shall not render void and invalid such seizures of and custody over said items. that’s very clear? Witness: Yes. People v.A. Worse.20(emphasis supplied) IN FINE. the defense in the present case questioned early on. 916519. however: Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there isjustifiable ground therefor. are properly preserved by the apprehending officer/team.

and to inform this Court of action taken within ten (10) days from notice hereof. No. vs. 2004 PEOPLE OF THE PHILIPPINES. 150224 May 19.WHEREFORE. The assailed decision is REVERSED and SET ASIDE and appellant. EN BANC G.. appellee. appellant. Elpidio Bondad Jr. y Burac.R. Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause. JOEL YATAR alias "KAWIT". SO ORDERED. . Let a copy of this Decision be furnished the Director of the Bureau of Corrections. is ACQUITED of the crimes charged. the Petition is GRANTED.

she felt a lifeless body that was cold and rigid. They went inside the house through the back door of the kitchen to have a drink of water. unlawfully.2 The facts are: On June 30. While she groped in the dark. Uba. This time. CONTRARY TO LAW. Judilyn’s husband then arrived and appellant immediately left and went towards the back of the house of Isabel. Tabuk. were on the ground floor of the house of their grandmother.6 She later noticed appellant. wilfully. to her husband. accused. and by means of force and violence had carnal knowledge of said Kathlyn D. Anita Wania. She called for help.DECISION PER CURIAM: On automatic review is a Decision of the Regional Trial Court of Bulanao. Kathylyn handed the letter to appellant earlier that morning. and that Isabel could use it. The door to the ground floor was open. Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds. through Kathylyn’s friend. She found that the door was tied with a rope. . she would just stay home and wash her clothes or go to the house of their aunt. pacing back and forth at the back of the house. Together with fellow police officers.m. in Liwan West. with her intestines protruding out of her stomach.00. called the police. Kalinga. A daughter of Isabel.4 Later. and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim. actual damages in the amount of P186. Cion. Kathylyn. and feloniously. but in the event she would not be able to leave.1 Appellant was charged with Rape with Homicide under the following Information: That on or about the afternoon of June 30. while Judilyn was on her way home from Nagbitayan.000. 1998. Appellant told her that he would not be getting the lumber he had stacked. Rizal.00.10 At 9:00 that evening.00. Judilyn and her husband. of the same day. and he replied that he was getting lumber to bring to the house of his mother.3 At 9:00 a. and within the jurisdiction of this Honorable Court.00. Before Judilyn and her husband departed. seventeen year old Kathylyn Uba. UBA. Anita asked appellant what he was doing there.410.8 In the evening of the same day. moral damages in the amount of P200. in order to have carnal knowledge of a certain KATHYLYN D.. Kathylyn told Judilyn that she intended to go to Tuguegarao. Judilyn again saw appellant when he called her near her house. she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house. They were talking about the letter sent by their aunt.000. and ordering him to pay the heirs of the victim. left for their farm in Nagbitayan some two kilometers away. sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide. Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. Luz Yatar. Uba against her will. Isabel Dawang arrived home and found that the lights in her house were off. appellant Joel Yatar. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She focused the beam and saw Kathylyn sprawled on the floor naked. and costs of litigation.00." Appellant asked her where her husband was as he had something important to tell him. She called out for her granddaughter.000.. at 10:00 a. neighbors had arrived to offer assistance. at 8:30 a. unlawfully and feloniously. exemplary damages in the amount of P50. together with Isabel Dawang.m. Judilyn Pas-a and her first cousin. the accused. SP04 Melchor Faniswa received a report that a dead woman was found in Isabel Dawang’s house. Kalinga. Kalinga. Kathylyn D..m. Kathylyn Uba.. did then and there wilfully. Judilyn and her husband arrived. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang.7 At 1:30 p. Rizal. She found out that it was the naked body of her granddaughter. who was wearing a white shirt with collar and black pants.5 At 12:30 p. or total damages amounting to P511.410. so she went down to get a knife. civil indemnity in the amount of P75. Isabel was given a flashlight by Judilyn. Kathylyn was left alone in the house. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs.m. 1998 at Liwan West.9 Isabel moved her hand throughout the entire body. Cecil Casingan. Isabel Dawang. and on the occasion or by reason thereof.m. They saw appellant at the back of the house. The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p. Branch 25. Meanwhile.m. She noticed that appellant’s eyes were "reddish and sharp. he was wearing a black shirt without collar and blue pants.

20 Dr. contusions or hematoma were noted on the victim. According to him.m.The police discovered the victim’s panties.m. 1998. denim pants. conduct and attitude. Bartolo discovered the presence of semen in the vaginal canal of the victim. the DNA in a person’s blood is the same as . although the Postmortem Report by the attending physician.18 Rigor mortisof the vicitm’s body was complete when Dr. DNA is a molecule that encodes the genetic information in all living organisms.13 Well-entrenched is the rule that the findings of the trial court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same. Pej Evan C. Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured him. bag and sandals beside her naked cadaver at the scene of the crime. Bartolo examined the victim at 9:00 a. They suddenly heard someone shout in the Ilocano dialect. 8353.19 In other words. as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime. he was placed under police custody. The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. On July 3. sentenced to Death. causing a portion of her small intestines to spill out of her body. appellant denied any knowledge of Kathylyns’s death. as amended. or misapplied some facts or circumstances of weight which would affect the result of the case. When questioned by the police authorities. their testimonies are entitled to full faith and credit. appellant was convicted of the crime of Rape with Homicide. and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel. and was accordingly. II THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses. defined and penalized under Article 266-A of the Revised Penal Code. In his Brief. on June 30.12 He was charged with Rape with Homicide. indicates that no hymenal lacerations. Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Hence. otherwise known as the Anti-Rape Law of 1997.16 The weight of the prosecution’s evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available. misunderstood. During his testimony. the trial judge’s assessment of credibility deserves the appellate court’s highest respect. 1998.11 however. this automatic review pursuant to Article 47 of the Revised Penal Code. This Court will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted. 1998. When he was arraigned on July 21. were found on the victim’s abdomen and back.23 A person’s DNA is the same in each cell and it does not change throughout a person’s lifetime. the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment. six (6) stab and five (5) incised.22 Significantly. the estimated time of death was sometime between 9:00 a.17 Reference to the records will show that a total of eleven (11) wounds. Appellant’s contentions are unmeritorious. appellant pleaded "not guilty. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station.21 In addition. as amended by R.A. appellant asked the police officers if he could relieve himself. "Nagtaray!" (He’s running away!). It should also be noted that. it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm indicating resistance to the appellant’s assault on her virtue. subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellant’s gene type. Dr. brassiere.14 Absent any showing that the trial judge overlooked." After trial. Bartolo. appellant assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS.15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive. Dr. the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion ofrigor mortis. 1998. on July 1. to 12:00 p.m. Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual intercourse with the victim.

has proven instructive. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques.the DNA found in his saliva. wearing a dirty white shirt. DNA can be compared with known samples to place the suspect at the scene of the crime. sweat. (3) Appellant received from the victim. Merrell Dow.. For purposes of criminal investigation.26 Incidents involving sexual assault would leave biological evidence such as hair. under Daubert.27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. Kathylyn Uba. efficiently facilitating the conviction of the guilty. and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. with her stained pants. this time wearing a black shirt. DHFRP2 9/10 and CSF1PO 10/11. getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method. the prevailing doctrine in the U. it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination. tiny amounts of a specific DNA sequence can be copied exponentially within hours. were allowed greater discretion over which testimony they would allow at trial. we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system. appellant’s wife left the house because of their frequent quarrels. a letter from his estranged wife in the early morning on June 30. 1998.m. skin tissue.m. semen. (10) Laboratory examination revealed sperm in the victim’s vagina (Exhibit "H" and "J"). used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis.S. Judges. Independently of the physical evidence of appellant’s semen found in the victim’s vaginal canal. and vaginal and rectal cells. inter alia. the procedure followed in analyzing the samples. or saliva which can be left on the victim’s body or at the crime scene. Exhibit "J" and "H".P. Fortunately. Under Philippine law. the possibility of contamination of the samples.m. Admittedly. including the introduction of new kinds of scientific techniques. we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. urine. DNA identification is a fertile source of both inculpatory and exculpatory evidence. If properly collected from the victim. lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang. In assessing the probative value of DNA evidence. (12) DNA of slide.33 it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. 1998 near the kitchen of the house of Isabel Dawang. Thus. with the notable exception of identical twins. (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead. Kathylyn Uba. mucus. the root and shaft of hair.. (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.34 Applying the Daubert test to the case at bar. Dr. where biological evidence has been left. Hair and fiber from clothing. crime scene or assailant. so we must be cautious as we traverse these relatively uncharted waters. Specifically. bra. (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope.28 The U. (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p. It can assist immensely in effecting a more accurate account of the crime committed. acting strangely and wearing a dirty white shirt with collar. (2) In June 1998. DNA typing is one such novel procedure. compared with the DNA profile of the appellant . and again at 1:30 p. securing the acquittal of the innocent. (9) The victim. or furniture could also be transferred to the victim’s body during the assault. and the qualification of the analyst who conducted the tests. or to exonerate a wrongly accused suspect. of June 30. earwax. In Daubert v. skin tissue.31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19. the DNA evidence obtained through PCR testing and utilizing STR analysis.25 DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime. because of polymorphisms in human genetic structure. how they were handled. the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim. and ensuring the proper administration of justice in every case. de Ungria’s testimony. evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence. TH01 7/8.32 Verily. bone. no two individuals have the same DNA. the following factors: how the samples were collected. With PCR testing. carpets.30 Based on Dr. which conducted the DNA tests in this case. bedding. a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used. Kathylyn Uba. (6) Appellant hurriedly left when the husband of Judilyn Pas-a was approaching. (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood. blood. National Science Research Institute (NSRI). whether the proper standards and procedures were followed in conducting the tests. courts should consider.24 Most importantly. which are identical with semen taken from the victim’s vaginal canal.29 In the case at bar. underwear and shoes scattered along the periphery.

36 In an attempt to exclude the DNA evidence. the hair samples may be admitted in evidence against him. and (13) Appellant escaped two days after he was detained but was subsequently apprehended. Whereas an ex-post facto law refers primarily to a question of law. Generally. three requisites must concur: (1) there is more than one circumstance. and no one else. undeniably link him to the June 30.35 Circumstantial evidence. to the exclusion of others. The science of DNA typing involves the admissibility. we ruled that there was no violation of the right against self-incrimination.42 This requires that the circumstances. 2000. especially in this case where the two places are located in the same barangay. we rule that the present case passes the test of moral certainty. Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law. No ex-post facto law is involved in the case at bar. courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. It is certainty beyond reasonable doubt. appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. must form an unbroken chain which leads to a fair and reasonable conclusion that the accused. The legal relevancy of evidence denotes "something more than a minimum of probative value. the police authorities took pictures of the accused without the presence of counsel. 12 and 17 of Art. The kernel of the right is not against all compulsion. . 1998 incident. It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. as there is no testimonial compulsion involved. This contention is untenable. This argument is specious. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination. committed the offense charged. is the perpetrator of the crime. Under People v. We ruled in People v. taken together. capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. should be of a conclusive nature and tendency. He alleges that he should be acquitted on reasonable doubt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time. III of the Constitution. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt. To determine whether there is sufficient circumstantial evidence. relevance and reliability of the evidence obtained under the Rules of Court. This fact severely weakens hisalibi. (2) facts on which the inferences are derived are proven. on the whole.43 In view of the totality of evidence appreciated thus far. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. photographing. leading. notwithstanding the eyewitness accounts of his presence at Isabel Dawang’s house during the time when the crime was committed. Hence. Appellant’s twin defense of denial and alibi cannot be sustained. DNA profiling requires a factual determination of the probative weight of the evidence presented. the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against selfincrimination under Secs. Appellant’s assertion cannot be sustained. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction.40 He lives within a one hundred (100) meter radius from the scene of the crime. and requires a mere five minute walk to reach one house from the other. Gallarde. to be sufficient to warrant a conviction. in the presence of counsel. but against testimonial compulsion. a person may be compelled to submit to fingerprinting. As to the second assignment of error.37 The right against selfincrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. such flight being indicative of guilt." suggesting that such evidentiary relevance must contain a "plus value. for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress.are identical. The forensic DNA evidence and bloodied shirt. paraffin. to a satisfactory conclusion that the accused. blood and DNA.39 where immediately after the incident."41 This may be necessary to preclude the trial court from being satisfied by matters of slight value.

threat or intimidation. Kalinga. civil indemnity ex delicto of P100.53 Moral influence or ascendancy takes the place of violence and intimidation.SO ORDERED. 25 of Rep. let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. step-father. Tabuk. Although three (3) Justices of this Court maintain their position that R. the penalty of death is imposed when by reason or on the occasion of the rape. thereby causing her untimely demise. 1998 at the house of Isabel Dawang.52 However. or the common-law spouse of her mother.51 Accordingly. in view of the foregoing. The award of exemplary damages is DELETED. it is not necessary that actual force or intimidation be employed. even without rupture or laceration of the hymen.190. it must be noted that Judilyn Pas-a. and for the purpose of meeting the requirement of proof beyond reasonable doubt. Appellant sexually assaulted Kathylyn Uba.60 WHEREFORE. being a state of mind. "this Joel Yatar threatened to kill our family.48 In addition. appellant is the husband of the victim’s aunt. 7659 is unconstitutional insofar as it prescribes the death penalty. together with the victim and his wife.54 The fact that the victim’s hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ.00.56 In the case at bar.However. Branch 25 in Criminal Case No. and by reason or on the occasion thereof.00. After the separation. appellant’s motive to sexually assault and kill the victim was evident in the instant case.57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93. motive is essential for conviction when there is doubt as to the identity of the culprit. L-14257.44 Pertinently. the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school.58 and moral damages of P75. we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. He is seven years older than the victim Kathylyn Uba. he is deemed in legal contemplation to have moral ascendancy over the victim. it may be so elastic as to stretch without laceration during intercourse. It is a rule in criminal law that motive. testified that she last saw the victim alive in the morning of June 30. approximately one hundred (100) meters from his mother-in-law’s house. who was personally present during an argument between her aunt and the appellant."47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmother’s house on June 25. wife of appellant. suffices for conviction of rape. uncle. in order to conceal his lustful deed.R."50 These statements were not contradicted by appellant. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.55 The strength and dilatability of the hymen are invariable. As to damages. as a matter of procedure. appellant moved to the house of his parents. and (3) by reason or on the occasion of such carnal knowledge by means of force.000.190.] . P93."49 According to Judilyn.45 She witnessed the appellant running down the stairs of Isabel’s house and proceeding to the back of the same house. Judilyn also testified that when her auntie Luz Dawang Yatar. 1998. deeds or words that may express it or from which his motive or reason for committing it may be inferred. the Decision of the RTC of Bulanao.000. Costs de oficio. is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense. threat or intimidation. Before he and his wife separated. and that the death penalty can be lawfully imposed in the case at bar. permanently sealed the victim’s lips by stabbing her repeatedly. Being a relative by affinity within the third civil degree. they nevertheless submit to the ruling of the majority that the law is not unconstitutional. sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100.000. such as the victim’s father. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances. in rape committed by close kin.00 in actual damages and P75. as amended by Sec. appellant lived in the house of his mother-in-law. separated from her husband. 35-98. July 31. Thus. Act No. "If you leave me.A. the exact words uttered by appellant to his wife in the Ilocano dialect was. Under Article 266-B of the Revised Penal Code. Upon the finality of this Decision and in accordance with Art. I will kill all your family and your relatives x x x.0059 should be awarded in the light of prevailing law and jurisprudence. (2) carnal knowledge of a woman was achieved by means of force. homicide is committed. No. The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman.00 in moral damages. 7659.46 She also testified that a few days before the victim was raped and killed. first cousin of the victim. 83 of the Revised Penal Code. EN BANC [G. appellant killed the woman.000.00. 1959.

Witness further explained that in preparing receipts for sales. Said the court: "Triplicates are evidence when it is proven first that the original is lost and cannot be produced. Exhs. containing blue invoices numbered 101301 to 101400 of the Metro Drug Corporation. In order to prove the charge of falsification. 36885 of the Court of First Instance of Manila. so that the triplicate copies remained in the booklet. the special prosecutor claimed that the evidence of the prosecution the originals on account of their loss. vs. After the cross-examination of this last witness. BIENVENIDO A. Br. interrupted the proceeding holding that the triplicates are not admissible unless it is first proven that the originals were lost and can not be produced. the prosecution presented to a witness a booklet of receipts. PAGARAN alias PULA. two carbons were used between the three sheets. the prosecution again went back to the identification of the triplicate invoice. when in fact and in truth. in their capacities as public officials and employees. no such distributions of such relief and supplies as valued and supposedly purchased by said Pacita Madrigal Gonzalez in the public and official documents had ever been made. But as the witness has alleged that the original is in the Manila Office. The booklet contained the triplicate copies. Fernandez for the other respondents. SYLLABUS 1. while only the duplicate or pink copies are submitted to the central office in Manila. Ampil & Suarez for respondent Pacita M. respondents. the duplicate and the triplicate. in such quantities and at such prices and from such business establishments or persons as are made to appear in the said public documents. JULIA CARPIO. The witness giving the testimony was the salesman who issued the triplicates marked as Exh. they are regarded as duplicate originals and may be introduced as such. Cebu City. respondents Pacita Madrigal-Gonzales and others are charged with the crime of falsification of public documents. It was at this stage that the judge below told the prosecution that the law applicable is Section 46. the duplicates to the customers. Hon. by having made it appear that certain relief supplies and/or merchandise were purchased by Pacita Madrigal-Gonzales for distribution to calamity indigents or sufferers. accountant of the Metro Drug Corporation in Manila. DECISION LABRADOR. which was marked Exh. PACITA MADRIGALGONZALES. In view of the above circumstances. why not produce the original?" Another witness. petitioner. "D". even without accounting for the non-production of the other originals. Gonzales and Bausa. CALIXTO HERMOSA. Rule 123 of the Rules of Court. and that the said cash journal sheets contained the sales made in the Cebu branch. was also called by the prosecution to testify. then presiding in the court below. Tan. and CRISPULA R. and according to said witness the original invoices were sent to the Manila office of the company. and that the originals of the sales invoices are transmitted to the main office in support of cash journal sheets. and which thereby produced a facsimile of the originals including the figures and the signatures on the originals. the original. already above referred to. ANGELITA CENTENO. ADMISSIBILITY OF DUPLICATE ORIGINAL WITHOUT THE PRODUCTION OF ORIGINAL. As the witness was explaining the figures or words appearing on the triplicates. which requires the production of the originals. Estanislao A. XIII. "D-1". — If the documents or papers to be introduced in evidence were produced by the use of carbon sheets. Hence this petition. In response to the above ruling. . Magallanes corner Jakosalem. "D-1". the prosecution announced its intention to file a petition for certiorari against the ruling of the court below to which the court below agreed. EVIDENCE. Prosecutors Norberto J. so that the duplicates and the triplicates were filled out by the used of the carbons in the course of the preparation and signing of the originals. Exh. Gonzales. Quisumbing and Antonio Villegas for petitioner. TAN as Judge of the Court of First Instance of Manila. Gonzalo W. to "A-10" he further declared that he received these from the Metro Drug Corporation. Assistant Fiscal Apolinar Tolentino. but that the original practice of keeping the original white copies no longer prevails as the originals are given to the customers. "A". J p: In Criminal Case No. Cebu branch. HON. "A-1".THE PEOPLE OF THE PHILIPPINES. He declared that sales in the provinces were reported to the Manila office of the Metro Drug Corporation. Testifying on certain cash journal sheets. Bienvenido M.

Cert. See also 12 L. 252. 115 So. (2d) 138. and any one of them may be introduced in evidence without accounting for the nonproduction of the other. Bautista Angelo. U. This matter has received consideration from the foremost commentator on the Rules of Court thus: "When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet. Montemayor. is admissible in evidence and possess all the probative value of the original. 616. the best evidence rule is that rule which requires the highest grade of evidence obtainable to prove a disputed fact p. E. 84 L. "SEC.. No." (Underhill's Criminal Evidence. 165 La.) It has also been decided in favor of the petitioner by Us in the case of People vs. 52. 662. 420. . App. such signature being thus reproduced by the same stroke of the pen which made the surface or exposed impression. JJ. p.' (Moran. 661). which were produced by the use of carbon sheets. E. 47. and the same does not require an accounting for the non-production of the original. W. I. 44 Off. 770. . Elfstrom. however. . S. 112 N. 5th ed. 117 Va.S. 1525. being carbon copy of the original and bearing as it does the signature of the appellant. as by placing carbon paper between sheets of writing on the exposed surface at the same time. Taylor vs. 499. Lee. all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others. Manton. Citing International Harvester Co. and these have been held to be as much primary evidence as the originals. State vs. even without accounting for the non-production of the originals.A. Gaz. 58 So. Rule 123. as follows: "SEC. denied 309 U. (2d) 87. ed. — Where letters are produced by mechanical means and. Vol. 1952 ed. 1012. Vol. The court below is hereby ordered to proceed in the trial of the case in accordance with this ruling. (N. 100. S. People of Hauke. and which thereby produced a facsimile of the regarded as duplicate originals and may be introduced as such. The said confession Exhibit B.) 343. 909. 93 F. 648) has been held to be primary evidence.. State vs. Citing U. 363. Endencia and Barrera. 397. . Duplicate originals. 386. (2d). 616.. 107 Fe. 5. O'Shea vs. 101 Minn." (Wharton's Criminal Evidence. 47. vs. A "duplicate sales slip' (People vs. Leonard vs. concur. 85 S. 168. all are duplicate originals. 335 Ill. p. are duplicate originals. without accounting first for the loss of the originals is incorrect and must be reversed. 16 S.. Stone. p. 1520. Two principal authors on the law on evidence have sustained the theory of the admissibility of duplicate originals. (2d) 834. including the signature of the party to be charged thereby. 288. Padilla. Bengzon. No costs. produces facsimile upon the sheets beneath. 138 So.It is alleged that the invoice sought to be introduced. Concepcion. 1.. I. E. vs. Com. S. 263. Rules of Court)". Carbon copies. 444. E. thus: "It is argued in the second assignment of error that the confession Exhibit B is not admissible because it is merely a carbon copy.R. 217. concurrently with the original. 181 N.) We find that the ruling of the court below to the effect that the triplicates formed by the used of carbon papers are not admissible in evidence. State 65 Ga. p. (Sec. 664. Quinones. Newman vs. So ordered. The admissibility of duplicates or triplicates has long been a settled question and we need not elaborate on the reasons for the rule. 169. "SEC. Keife. when made at the same time and on the same machine as the original. 349 Ill. 173 La. duplicate are produced. 36 Ala. The decision of the question is far from difficult. State. App. 167 N.

No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. Philippines. Police Inspector Chief SDEU and. testified that Ruiz' arrest was made pursuant to a legitimate buy-bust operation where Ruiz sold him marijuana. his counsel admitted the following: (1) the identity of Ruiz as the accused in the case. respectively. which substance. 2 Branch 72.the Sinumpaang Salaysay of PO1 Samuel Sonny Garcia. Exhibit "D" . PO1 Samuel Garcia (PO1 Garcia).the corpus delicti. unlawfully. after they entered into stipulations concerning the manner and nature of his testimony. 4 The defense counsel also manifested that admissions could be made in the course of the trial concerning the manner and nature of the testimony of the forensic chemist. accused-appellant. when subjected to chemistry examination gave positive result for Marijuana. EScIAa Ruiz was formally charged and pleaded "not guilty" under an Information that reads: That on or about the 27th day of February 2003. . Jesse Abadilla Dela Rosa. 2003 submitted by Ferdinand Lavadia Balgoa.00 to poseur-buyer one (1) piece of printed paper with markings 'RGR-1' containing the following: one (1) small brick of dried suspected Marijuana fruiting tops with a net weight 11. Malabon City. DECISION BRION. 173480. 3 2009jur In the pre-trial conference that followed. did then and there.the Dispatch Order dated February 27. . plaintiff-appellee. Exhibit "E" . Valenzuela. and (3) Ruiz' lack of authority to possess or sell shabu. Exhibit "G" . 2006 1 for violation of Section 5. J p: We review in this Decision the conviction of accused-appellant Ruiz Garcia y Ruiz (Ruiz) by the Court of Appeals (CA) in its Decision of May 10.the Physical Sciences Report No. being a private person. .SECOND DIVISION [G. The assailed CA decision fully affirmed the decision of the Regional Trial Court (RTC). as poseur-buyer.A. the above-named accused. 2003 prepared by PO2 Geoffrey Huertas.the Pre-Operation Report dated February 27. 5 The prosecution presented a single witness. 2003. Exhibit "F" Exhibit "H" . and without authority of law. 2003 written by Police Senior Superintendent Oscar F.] PEOPLE OF THE PHILIPPINES. The parties dispensed with the testimony of the forensic chemist. who. (2) the jurisdiction of the RTC.) No. 2009. February 25. Metro Manila.R. and within the jurisdiction of this Honorable Court.the photocopy of the recovered Exhibit "C-1" and "C-2" marked money. 6 The prosecution also submitted the following evidence: Exhibit "A" . willfully. RUIZ GARCIA y RUIZ. a dangerous drug. in the Municipality of Navotas. Exhibit "B" .02 gram[s] and Thirteen (13) small white paper[s] with markings 'RGRRPI' through 'RGR-RP13'. Article II of Republic Act (R. vs. D-250-03 prepared by forensic chemist Jesse Abadilla Dela Rosa.the Request for Laboratory Examination dated February 28. and feloniously sell and deliver for consideration in the amount of P200.INFOREP dated February 7.

.00 and costs. 11 He insisted that he knew a certain Balais who arrested suspected pushers/users in their place. is as follows: Accused Ruiz Garcia y Ruiz. Garcia got in touch with the confidential informer whom [sic] he learned could buy marijuana from the accused. The accused in turn gave Garcia the marijuana wrapped in a yellow page of the PLDT directory. 2003. maintained that he was riding on a hopper on his way [home] to his wife at Daang Hari. he was detained and charged in this case which he protested. (d) the informant was not presented in court. Metro Manila. There were prior Informations [sic] from Camp Crame and the NPDO about the selling of marijuana . fully affirmed the RTC's decision. they tested positive for marijuana. He (PO1 Garcia) turned over the seized items to the investigator. and sentenced him to life imprisonment and to pay a fine of P500. Navotas. EHTISC It did not take long after the arrival of Garcia and the others at the area of operation for the accused to arrive on board a red scooter. He observes that: (a) PO1 Garcia's motive was to impress his superiors who had issued a special order against him. which were mainly reiterations of their earlier testimonies. 12 The prosecution and the defense thereafter entered into stipulations on the substance of the rebuttal and sur-rebuttal testimonies of PO1 Garcia and Ruiz.2009jur According to PO1 Garcia. and (f) there was no compliance with Section 21.A. 9 The version of the defense. The accused then heard someone remarked "ito pala si Ruiz". he admitted that he did not know PO1 Garcia and that he saw him for the first when he was arrested. whose serial numbers were listed in the dispatch order . Garcia told the accused that he will buy P200. Garcia verified the contents thereof and thereafter gave the P200.000. and he was told to go along with the policemen.00. For this reason. waiting for the accused with whom the confidential informer arranged for him (Garcia) to buy marijuana. Navotas. As a consequence. as nothing was confiscated from him. they brought Ruiz to the DEU 7 office for investigation. on the other hand. and then to the police headquarters where he was asked to make "tubos" or to "ransom" the hopper. The RTC summarized the prosecution's version of events as follows: On February 27. 9165 or the chain of custody rule on seized drugs. on appeal. 8 The seized items were thereafter sent to the PNP Crime Laboratory for examination. 16 . after the arrest.00 worth of marijuana. No. searched with nothing illegal found inside its compartment [sic]. 10 In making this claim. . Garcia then gave the signal to his companions for them to approach. 15 In the present appeal before us. (b) the police officers arrested him to extort money by asking him to ransom his scooter which the police had confiscated. . 14 The CA. 13 In its Decision of July 27. . consisting of two P100. Metro Manila.The defense relied solely on the testimony of Ruiz who claimed he was the victim of a police frame-up and extortion. R. . 2004. as summarized by the RTC. Ruiz faults the CA for believing the testimony of the lone prosecution witness. who initially brought him to the lying-in clinic. at the same time. who then placed markings on the wrapper.00 bills earlier given for him to use as buy-bust money . . at around 2:45 p. when he saw a jeep with policemen on board. PO1 Samuel Garcia was with a confidential informer and two other policemen at the back of San Roque Church. as agreed upon between the confidential informer and the accused. and for convicting him despite the insufficiency of supporting evidence.m. DEaCSA Ruiz claimed that the case was a trumped-up charge made by the police to extort money from him. A policeman named Balais stopped the accused and asked for the papers of the hopper which he. . He also arrested the accused whom he told of his rights and brought him to a lying-in clinic and then to the police headquarters. (e) his arrest was illegal because it was made without a warrant. the RTC found Ruiz guilty beyond reasonable doubt of the crime charged. Garcia [Ruiz] was not able to do so because he cannot afford what the policemen were demanding. (c) no prior surveillance was conducted before he was arrested.

A. Every criminal case starts with the constitutionally-protected presumption of innocence in favor of the accused that can only be defeated by proof beyond reasonable doubt." Accordingly. In People v. the burden of evidence shifts to the accused to disprove the prosecution's case.A. the prosecution failed to show that the police complied with paragraph 1. 22 this Court itself recognized that "by the very nature of anti-narcotics operations. the ease with which sticks of marijuana or grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks. we resolve to ACQUIT Ruiz. 9165) for the police to strictly follow. 17 As established through the testimony of PO1 Garcia. Section 21. the object. and coordinated with the PDEA. through the Office of the Solicitor General. While this kind of operation has been proven to be an effective way to flush out illegal transactions that are otherwise conducted covertly and in secrecy. Thus. properly documented. Section 21 of Article II of R. The requirements of paragraph 1. A buy-bust operation gave rise to the present case. and (2) the delivery of the thing sold and the payment therefor.. courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses. No. The prosecution starts the trial process by presenting evidence showing the presence of all the elements of the offense charged. In the present case. i. SEIDAC In a prosecution for the illegal sale of a prohibited drug. The first procedural safeguard that the police failed to observe (and which both the RTC and the CA failed to take into account) is that provided under paragraph 1. and the secrecy that inevitably shrouds all drug deals. 9165. the body or substance of the crime that establishes that a crime has actually been committed.A. All these require evidence that the sale transaction transpired. even before the presentation by the defense. It is in this respect that the prosecution failed. physically inventory and photograph the same in the presence of .A. the presumption of innocence prevails. in which case. the burden of evidence does not shift to the accused. and with the chain of evidence requirement of this Act. 21 a buy-bust operation has a significant downside that has not escaped the attention of the framers of the law. who no longer needs to present evidence in his defense. the most notorious of which is its use as a tool for extortion. Article II of R. No. It is susceptible to police abuse.e. Specifically. as the prosecution's evidence failed to prove his guilt beyond reasonable doubt. the possibility of abuse is great. the court must then determine if the guilt of the accused has been proven beyond reasonable doubt. the prosecution must prove the following elements: (1) the identity of the buyer and the seller. specific procedures relating to the seizure and custody of drugs have been laid down in the law (R. Section 21. immediately after seizure and confiscation. No. The prosecution must adduce evidence that these procedures have been followed in proving the elements of the defined offense. If the prosecution proves all the required elements. the use of shady characters as informants. his arrest was effected through a legitimate buy-bust operation that was regularly conducted. coupled with the presentation in court of the corpus delicti. Based on these presentations. already has failed to prove all the elements of the crime charged.The People. 9165. the need for entrapment procedures. No. 18 The Office of the Solicitor General also argued that Ruiz failed to present sufficient evidence to substantiate his claim of frame-up. 19 THE COURT'S RULING After due consideration. 20 as shown by presenting the object of the illegal transaction. and the consideration. his (Ruiz') evidence also failed to overcome the presumption of regularity in the performance of official duties by the public officers in the case. It may happen though that the prosecution. Tan. 9165. the object is marijuana which the prosecution must present and prove in court to be the same item seized from the accused. maintains that the lower courts correctly found Ruiz guilty of the crime charged. Article II of R. This provision states: 1) The apprehending team having initial custody and control of the drugs shall.

xxx xxx xxx Q: After you had arrested the person of the accused. that: (a) The apprehending office/team having initial custody and control of the drugs shall. 23 Thus. or his/her representative or counsel. The procedural lapse is plainly evident from the testimony of PO1 Garcia. sir. a representative from the media and the Department of Justice (DOJ). what happened next? A: After verifying the contents and after convincing myself that the same is marijuana. physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized. 9165 and its implementing rules. [Emphasis supplied. Is this the marking that you placed? A: xxx Yes. We observe that while there was testimony with respect to the marking of the seized items at the police station. immediately after seizure and confiscation.A. 24 There was likewise no mention that any representative from the media . I handed to him the money and raised my hand as a pre-arrange[d] signal.the accused or the person/s from whom such items were confiscated and/or seized. xxx xxx Q: What happened after you have seized the item from the accused or after you have recovered this and placing [sic] markings? A: It was sent to the PNP Crime Laboratory for laboratory examination. shall not render void and invalid such seizures of and custody over said items. further that non-compliance with these requirements under justifiable grounds. ATaDHC xxx xxx xxx Q: So what happened to the pack of marijuana that you were able to buy from the accused? A: I turned it over to our investigator and then he placed markings on the wrapper. ITcCSA Testifying on the handling of the seized marijuana. RP-1. other than the markings made by PO1 Garcia and the police investigator (whose identity was not disclosed). No. under its Section 21 (a). No. what happened next? A: We brought him for medical examination and [thereafter] brought him to our office. 9165 further elaborate on the legal requirement by providing. no mention whatsoever was made on whether the marking had been done in the presence of Ruiz or his representatives. [Emphasis supplied. xxx xxx xxx Q: I am handing to you now the improvise [sic] wrapper.] DHSCEc The Implementing Rules and Regulations of R.A. as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team. and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. a representative from the media and the Department of Justice (DOJ). and no photograph of the seized items was taken under the circumstances required by R.00. no physical inventory was ever made. and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided. he stated that: Q: After he handed to you the one pack and then you handed to him the P200. or his/her representative or counsel.] The records utterly fail to show that the buy-bust team complied with these procedures despite their mandatory nature as indicated by the use of "shall" in the directives of the law and its implementing rules.

in Zarraga v. in the cases of People v. Jr. where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. after the buy-bust team had taken Ruiz to a lying-in clinic for a medical examination. 26 the Court. 37 PO1 Garcia testified that he had marked the seized item (on the wrapper) with the initial "RP-1". where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused. or that any of these people had been required to sign the copies of the inventory. the PNP Crime Laboratory examined the following items with the corresponding markings: a printed paper with the marking "RGR-1" together with one small brick of dried suspected marijuana fruiting tops and thirteen pieces of small white paper with the markings "RGP-RP1" to "RGP-RP13". but only after a significant intervening time had lapsed. ECTAHc We further note. [Emphasis supplied. Ruiz confirmed in his testimony that the buy-bust team first took him to the San Jose Lying-in Center. The Court made a similar ruling in People v. what was submitted to the PNP Crime Laboratory consisted of a single piece telephone directory paper containing suspected dried marijuana leaves fruiting tops with the marking "RGR-1" and thirteen pieces of rolling paper with the markings "RGR-RP1" to "RGR-RP13". Section 21. Santos. 25 In People v. an examination of the two documents showed a different marking: on one hand. We also held that strict compliance is justified under the rule that penal laws shall be construed strictly against the government. 33 In People v. in discussing the implications of the failure to comply with Paragraph 1. Sanchez. before proceeding to the police headquarters. Orteza. De la Cruz 30 where we again stressed the importance of complying with the prescribed procedure. the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. 38 However. Consequently. 2003 issued by the PNP Crime Laboratory with respect to the marking on the seized items.. i. the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. in the present case. we also note that PO1 Garcia testified that he marked the confiscated items when he returned to the police station after the buy-bust operation. 2003 (the request for laboratory examination of the seized items) 36 and Physical Science Report No. Laxa. This admission additionally shows that the marking was not done immediately after seizure of the items. to the police headquarters. Article II of R. Nazareno 27 and People v. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. at the place they were seized. No. CDHSac More recently. 9165. 32 and from there. 34 we held that in case of warrantless seizure (such as a buy-bust operation) under R. SacTCA . 28 and recently. on the other hand.and the Department of Justice. the physical inventory and photograph of the items shall be made by the buybust team. the Court concluded that the prosecution failed to establish the identity of the corpus delicti. if practicable. failed to explain why the required inventory and photographing of the seized items were not practicable and could not have been done at the place of seizure. 9165. 31 In addition. Dela Cruz 29 and People v. or any elected official had been present during this inventory. People. Significantly. that the lower courts overlooked the glaring inconsistency between PO1 Garcia's testimony vis-à-vis the entries in the Memorandum dated February 28. considering that such interpretation is more in keeping with the law's intent of preserving the integrity and evidentiary value of the seized drugs.] We reached the same conclusion in People v. No. declared: In People v. Kimura..A. D-250-03 dated February 28. on the matter of identifying the seized items. 35 The prosecution.A. and liberally in favor of the accused.e.

PO1 Garcia was not asked to explain the discrepancy in the markings." In Sanchez. as the records available to us do not disclose the exact details of the parties' stipulations. the condition in which it was received and the condition in which it was delivered to the next link in the chain. No.. as the prosecution. the procedural lapses in the handling and identification of the seized items. Article II of the IRR offers some flexibility in complying with the express requirements under paragraph 1. Unfortunately.A. These constitute major lapses that. as follows: As a method of authenticating evidence. Section 21 (a). in the first place. In other words. an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable. that in such case. Neither can the stipulated testimony of the forensic chemist now shed light on this point. at the very least. from the moment the item was picked up to the time it is offered into evidence.e. to the forensic chemist. 9165) specifically defines chain of custody. 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. where it was and what happened to it while in the witnesses' possession. 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. to the police. and thereafter explained the cited justifiable grounds. i. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain. the exhibit's level of susceptibility to fungibility. People. Section 21. shall not render void and invalid such seizures of and custody over said items.A. or when a witness has failed to observe its uniqueness.PO1 Garcia's testimony is the only testimonial evidence on record relating to the handling and marking of the seized items since the testimony of the forensic chemist in the case had been dispensed with by agreement between the prosecution and the defense. are fatal to the prosecution's case. [Emphasis supplied. EAICTS The chain of custody requirement In Lopez v. did not even recognize the procedural lapses the police committed in handling the seized items. Series of 2002 44 (which implements R. 9165. 43 It is important enough as a concern that Section 1 (b) of Dangerous Drugs Board Regulation No. 42 we explained the importance of establishing the chain of custody of the confiscated drugs. 39 To be sure. collectively raise doubts on whether the items presented in court were the exact same items that were taken from Ruiz when he was arrested. as well as the unexplained discrepancy in their markings.] cCESTA The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused. submitted an explanation and proof showing that the integrity and evidentiary value of the seized items have been preserved. 40 We also stressed in Sanchez. To our mind. the prosecution must show that the integrity and evidentiary value of the evidence seized have been preserved. standing unexplained. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. Had the prosecution done so. we clarified that this saving clause applies only where the prosecution recognized the procedural lapses. 1. tampering. The same standard likewise obtains in case the evidence is susceptible to alteration. "non-compliance with these requirements under justifiable grounds as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team. or when its condition at the time of testing or trial is critical. in such a way that every person who touched the exhibit would describe how and from whom it was received. . It would include testimony about every link in the chain. Article II of R. 41 These conditions were not met in the present case. and finally to the court. No. contamination and even substitution and exchange. it would not have glossed over the deficiencies and would have.

The evidence does not show who was in possession of the marijuana during the ride from the crime scene to the lying-in center. Given the procedural lapses pointed out above. As we pointed out in the opening statement of our Ruling. as Police Inspector Chief SDEU. (a) The first crucial link in the chain of custody to the PNP Crime Laboratory.b. and from the lying-in center to the police station. 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 prosecution failed to fully prove the elements of the crime charged. serious uncertainty hangs over the identification of the seized marijuana that the prosecution introduced into evidence. The available records in the case fail to show compliance with this regulation. prepared the request for the laboratory examination of the seized marijuana . Although a reading of the Memorandum dated February 28. was also not disclosed. cDIHES In this regard. and the final disposition. Only PO1 Garcia testified to this link. he only marked it at the police station when he turned it over to the investigator.2009jur In the present case. We need not therefore discuss the specific defenses raised. this brings the case to a situation where the defense does not even need to present evidence as it has no viable case to meet. In effect. the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence. The identity of this police investigator to whom the custody of the seized marijuana was turned over was not disclosed. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage. (c) The subsequent links in the chain of custody The evidence on record relating to the subsequent links in the chain of custody — from the police inspector to the PNP Crime Laboratory — did not identify the person who submitted the seized marijuana to the PNP Crime Laboratory for examination. while PO1 Garcia duly testified on the identity of the buyer and seller. 2. In the interim. Sections 3 46 and 6 47 (paragraph 8) of Dangerous Drugs Board Regulation No. the identity of the person who had the custody and safekeeping of the seized marijuana. after it was chemically analyzed pending its presentation in court. The board regulation also requires the identification of the individuals participating in the chain. and on the manner the sale took place. from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Nor do we need to discuss the lower courts' misplaced reliance on the presumption of regularity in the performance of official duties. At the same time. 2003 shows that a certain Ferdinand Lavadia Balgoa. Series of 2003 48 require laboratory personnel to document the chain of custody each time a specimen is handled or transferred until the specimen is disposed. he and the rest of the buy-bust team had taken Ruiz to a lying-in clinic for medical examination. on the consideration that supported the transaction. creating a reasonable doubt on the criminal liability of the accused. this piece of evidence does not establish the latter's identity as the police inspector to whom PO1 Garcia turned over the marijuana. except to state that the presumption only arises in the absence of contrary details in the The first crucial link was from the time the marijuana was seized by PO1 Garcia to its delivery to the police investigator at the police headquarters. 45 the prosecution's evidence failed to establish the chain that would have shown that the marijuana presented in court was the very item seized from Ruiz at the time of his arrest. he did not mark the seized marijuana after it was handed to him by Ruiz. From his own testimony. and who subsequently made the corresponding markings on the seized items. DTEHIA (b) The second link in the chain of custody The second link in the chain of custody of the seized marijuana is from PO1 Garcia to the police investigator. Whether it was the Police Inspector Chief SDEU is not clear from the evidence that only shows that he signed the request for the laboratory examination of the seized marijuana to the PNP Crime Laboratory.

We cannot afford to fail either in combating the drug menace or in protecting the individual rights and liberties we have enshrined in our Constitution. v. unless he is confined for any other lawful cause. 2006 of the Court of Appeals in CA-G.790 led to convictions (most of which were cases of simple possession). Philippine Drugs Enforcement Agency. Appellant. 35383. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this Decision the action he has taken.667 drug cases filed from 2003 to 2007. STATE v. the police officers failed to comply with the standard procedures prescribed by law. Let a copy of this Decision be furnished the Director of the Bureau of Corrections. 1961.2d 73 (1961) 360 P. SO ORDERED. The Supreme Court of Washington. Philippine National Police. premises considered. April 6. No. [ 58 Wn. there is no occasion to apply the presumption. RALPH TATUM. Department Two. Copies shall also be furnished the Director General. the Decision dated May 10. No. Accused-appellant Ruiz Garcia y Ruiz is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. IHDCcT The Regional Trial Court is directed to turn over the seized marijuana to the Dangerous Drugs Board for destruction in accordance with law. only 4. Respondent. we call the attention of the authorities to exert greater efforts in combating the drug menace using the safeguards that our lawmakers have deemed necessary for the greater benefit of our society. as in the present case. for appellant. among others. CR.2d 754 THE STATE OF WASHINGTON. and the Director General. Olson. for respondent. 49 We close with the thought that this Court is not unaware that in the five years that R. Either way.case that raise doubt on the regularity in the performance of official duties.2d 74 ] .-H. 52 The present case is now an added statistic reflecting our dismal police and prosecution records.C. the charges against the rest were dismissed or the accused were acquitted. IcCEDA WHEREFORE.* No. the rate of cases that resulted in acquittals and dismissals was higher than the rate of conviction. 51 A recent international study conducted in 2008 showed that out of 13. the consequences of continued failure are hard to imagine. Roger L. Moore & Rabideau. 50 Under PDEA records. 9165 has been in place. Without casting blame.A. Where. Muntinlupa City for immediate implementation.R. for their information. TATUM 58 Wn. 00954 is REVERSED and SET ASIDE. He is ordered immediately RELEASED from detention. the dismissals and acquittals accounted for 56% because of the failure of the police authorities to observe proper procedure under the law.

from an evidentiary standpoint. Ralph Tatum (hereinafter called appellant) was convicted of the crime of first-degree forgery and was sentenced to life imprisonment as an habitual criminal. and under what circumstances the photograph was taken. 54 Utah.E. When it was discovered that the endorsement of the payee was a forgery. In February.2d 483 (1932). Cady v. 380. Little. 27 P. This court has many times held that the question of whether or not a witness is qualified to express an expert opinion lies within the sound discretion of the trial court.2d 75 ] [1] At the outset. [2] What quantum of authentication do courts require before a photograph may be admissible in evidence? It is simply this — that some witness (not necessarily the photographer) be able to give some indication as to when. Phillip Dale testified at length concerning the Regiscope process. (2d) 899.L. Upon the trial.. 83 Wn. 133 P. or any other such defense.. Knox. 186 P. [3] Witness Pentecost testified that she recognized the background shown in the picture as that of the food store. both the check and the person facing the machine. 158. Norland v. Peterson. the Regiscope distributor. that appellant was somewhere else at the moment the photograph was taken. received monthly welfare checks from the state of Washington. [4. See Wilson v. did not. The fact that Dale was not a professional photographer and may have not understood all of the technical details of the process. 189 P. Wright.2d 223 (1948). 172 (1919). Kelly v. Tousin. See Kelly v.R. Department of Labor & Industries. Co. But these arguments go to the weight rather than to the admissibility of the exhibits in question. of Pasco. 74 Atl.2d 120 (1961). In our opinion. sufficed to establish a prima facie case of first-degree forgery. The authentication supplied by the testimony summarized above.2d 970(1953). 175 Wn.2d 634 (1947). 197 (1909). 16 Wn.43 Wn. 145 Pac. Porter. The photograph need only be sufficiently accurate to be helpful to the court and the jury. 169 Wn. She also testified that whenever a check was presented to her for payment at the store. 57 (1914). disqualify him from expressing an opinion in his testimony as to the possibility of altering a given Regiscope print. We have also held that the trial court's discretion extends to the sufficiency of identification. through two separate lenses. 55. Spokane. See Quayle v.2d 76 ] attempting to prove that the individual portrayed was someone other than appellant. with respect to the question of the admissibility of the Regiscope films. The judgment of the trial court is affirmed. 29 Wn. where. 82 Vt. Harding. 262 P. 162 P.DONWORTH. This machine is designed to simultaneously photograph. The testimony of these two witnesses taken together amounted to a sufficient authentication to warrant the admission of the photograph (both the print and the negative) into evidence. she also testified as to the store's standard procedure of "regiscoping" each individual who cashed a check at the store. 23 Wn.52 Wn.57 Wn.) The mail was normally left on a window ledge in the hallway of the rooming house. including photographs.2d 461 (1958). we hardly think that the trial court abused its discretion in this regard. 329 P.90 was endorsed and cashed at Sherman's Food Store in Pasco by someone other than the payee. and that the photograph accurately portray the subject or subjects illustrated.2d 851. 13 P. See 9 A. and the cases cited therein.2d 115 (1933). 5] The second question (whether or not witness Dale properly qualified as an expert witness respecting the Regiscope process) presents less difficulty. as mentioned previously. testified that although she could not specifically recall the above-mentioned transaction. the Regiscope exhibits. Blake v. This appeal presents two questions for our consideration: (1) Were the Regiscope films (the negative and the print) authenticated sufficiently to warrant their admission into evidence? (2) Did Phillip Dale. Hardamon. coupled with the other evidence produced by the state. There is equally wellestablished precedent for the proposition that the admission or rejection of photographs as evidence lies within the sound discretion of the trial court. Tousin did not receive his check (the checks were generally mailed to a rooming house in Pasco where Tousin resided. 358 P. J. and. over appellant's objection.2d 813 (1945). it should be noted that this court has for many years encouraged the admission and use of demonstrative evidence. An employee of the store.2d 650. 29 Wn. See Kellerher v. Appellant resided at the same place. J. 182. of course. did not preclude appellant from [ 58 Wn. qualify as an expert witness with respect to the filming process despite the fact that he was not a photographer by profession? [ 58 Wn. 180 Pac. . Caroline Pentecost. the Regiscope film of the transaction was sent to the Regiscope distributor in Portland to be developed. the initials appearing on the face of the check were hers. the store manager had instructed her to initial it and then insert it into a "Regiscope" machine. Valley Constr. Safford Lbr. The essential facts of the case are summarized as follows: One William Tousin. Fenner.2d 226.2d 679. and White v. In view of witness Dale's testimony that he personally had developed "four to five hundred thousand" individual Regiscope films.2d 516. State v. 444.2d 270 (1943). that the photograph was inaccurate in one or more respects. The processed film shows both the check and the person of appellant (from his waist up) with the food store in the background. See Hassam v. Co.2d 805.2d 182. State v. 1960. both the negative and the print therefrom were admitted in evidence. Tousin's February check for $28.

concur.FINLEY.. C.J. JJ. MALLERY. . and HUNTER. OTT..