articles 134-177 crim law 2

8/6/2019 Articles 134-177 Crim Law 2

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Motu propio… In law , sua sponte (Latin : "of their own accord.") describes an act of authority taken without formal prompting from another party . The term is usually applied to actions by a judge taken without a prior motion or requestfrom the parties. The plural form nostra sponte is sometimes used when the action is taken by a multi-member court,such as an appellate court, rather than a single judge. While usually applied to actions of the court, the term reasonablymay be applied to actions by government agencies and individuals acting in official capacity.

One situation in which a party might encourage a judge to move sua sponte occurs when that party is preserving aspecial appearance (usually to challenge jurisdiction

), and therefore cannot make motions on its own behalf withoutmaking a general appearance . Common reasons for an action taken sua sponte are when the judge determines that thecourt does not have subject-matter jurisdiction or that the case should be moved to another judge because of a conflictof interest

, even if all parties disagree.

Art. 134 – Rebellion

FACTS:

They came in the middle of the night. Armed with high-powered ammunitions and explosives, some three hundred junior officers and enlistedmen of the Armed Forces of the Philippines (AFP) stormed into the Oakwood Premiere apartments in Makati City in the wee hours of July27, 2003. Bewailing the corruption in the AFP, the soldiers demanded, among other things, the resignation of the President, the Secretary of Defense and the Chief of the Philippine National Police (PNP). 1

In the wake of the Oakwood occupation, the President issued later in the day Proclamation No. 427 and General Order No. 4, both declaring"a state of rebellion" and calling out the Armed Forces to suppress the rebellion. Proclamation No. 427 reads in full:

In G.R. No. 159085 (Sanlakas and PM v. Executive Secretary, et al .),2 party-list organizations Sanlakas and Partido ng Manggagawa (PM),contend that Section 18, Article VII of the Constitution does not require the declaration of a state of rebellion to call out the armedforces. 3 They further submit that, because of the cessation of the Oakwood occupation, there exists no sufficient factual basis for the

proclamation by the President of a state of rebellion for an indefinite period. 4

Petitioners in G.R. No. 159103 ( SJS Officers/Members v. Hon. Executive Secretary, et al .) are officers/members of the Social Justice Society(SJS), "Filipino citizens, taxpayers, law professors and bar reviewers." 5 Like Sanlakas and PM, they claim that Section 18, Article VII of theConstitution does not authorize the declaration of a state of rebellion. 6 They contend that the declaration is a "constitutional anomaly" that"confuses, confounds and misleads" because "[o]verzealous public officers, acting pursuant to such proclamation or general order, are liableto violate the constitutional right of private citizens." 7 Petitioners also submit that the proclamation is a circumvention of the report

requirement under the same Section 18, Article VII, commanding the President to submit a report to Congress within 48 hours from the proclamation of martial law. 8 Finally, they contend that the presidential issuances cannot be construed as an exercise of emergency powers asCongress has not delegated any such power to the President. 9

In G.R. No. 159185 ( Rep. Suplico et al. v. President Macapagal-Arroyo and Executive Secretary Romulo ), petitioners brought suit as citizensand as Members of the House of Representatives whose rights, powers and functions were allegedly affected by the declaration of a state of rebellion. 10 Petitioners do not challenge the power of the President to call out the Armed Forces. 11 They argue, however, that the declaration of a state of rebellion is a "superfluity ," and is actually an exercise of emergency powers. 12 Such exercise, it is contended, amounts to ausurpation of the power of Congress granted by Section 23 (2), Article VI of the Constitution. 13

In G.R. No. 159196 ( Pimentel v. Romulo, et al .), petitioner Senator assails the subject presidential issuances as " an unwarranted , illegal andabusive exercise of a martial law power that has no basis under the Constitution." 14 In the main, petitioner fears that the declaration of a stateof rebellion "opens the door to the unconstitutional implementation of warrantless arrests" for the crime of rebellion .15

It is true that for the purpose of exercising the calling out power the Constitution does not require the President to make a declaration of astate of rebellion. Section 18, Article VII provides:

Sec. 18. The President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he maycall out such armed forces to prevent or suppress lawless violence, invasion or rebellion. In case of invasion or rebellion, when the publicsafety requires it, he may, for a period not exceeding sixty days , suspend the privilege of the writ of habeas corpus or place the Philippines or any part thereof under martial law . Within forty-eight hours from the proclamation of martial law or the suspension of the writ of habeascorpus, the President shall submit a report in person or in writing to the Congress . The Congress, voting jointly, by a vote of at least amajority of all its Members in regular or special session, may revoke such proclamation or suspension, which revocation shall not be set aside

by the President. Upon the initiative of the President, the Congress may, in the same manner, extend such proclamation or suspension for a period to be determined by the Congress, if the invasion or rebellion shall persist and public safety requires it.

The Congress, if not in session, shall, within twenty-four hours following such proclamation or suspension, convene in accordance with itsrules without need of a call.

The Supreme Court may review, in an appropriate proceeding filed by any citizen, the sufficiency of the factual basis for the proclamation of martial law or the suspension of the privilege of the writ of habeas corpus or the extension thereof, and must promulgate its decision thereonwithin thirty days from its filing.

A state of martial law does not suspend the operation of the Constitution, nor supplant the functioning of the civil courts or legislativeassemblies, nor authorize the conferment of the jurisdiction on military courts and agencies over civilians where civil courts are able tofunction, nor automatically suspend the privilege of the writ.

The suspension of the privilege of the writ shall apply only to persons judicially charged for rebellion or offenses inherent in or directlyconnected with invasion.

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The argument that the declaration of a state of rebellion amounts to a declaration of martial law and, therefore, is a circumvention of thereport requirement, is a leap of logic. There is no indication that military tribunals have replaced civil courts in the "theater of war" or thatmilitary authorities have taken over the functions of civil government. There is no allegation of curtailment of civil or political rights. There isno indication that the President has exercised judicial and legislative powers. In short, there is no illustration that the President has attemptedto exercise or has exercised martial law powers.

Nor by any stretch of the imagination can the declaration constitute an indirect exercise of emergency powers, which exercise depends upon agrant of Congress pursuant to Section 23 (2), Article VI of the Constitution:

Sec. 23. (1) ….

(2) In times of war or other national emergency , the Congress may, by law, authorize the President, for a limited period and subject to suchrestrictions as it may prescribe, to exercise powers necessary and proper to carry out a declared national policy. Unless sooner withdrawn byresolution of the Congress, such powers shall cease upon the next adjournment thereof.

The petitions do not cite a specific instance where the President has attempted to or has exercised powers beyond her powers as Chief Executive or as Commander-in-Chief. The President, in declaring a state of rebellion and in calling out the armed forces, was merelyexercising a wedding of her Chief Executive and Commander-in-Chief powers . These are purely executivepowers, vested on the President

by Sections 1 and 18, Article VII, as opposed to the delegated legislativepowers contemplated by Section 23 (2), Article VI.

WHEREFORE, the petitions are hereby DISMISSED.

2) G.R. No. 147780 May 10, 2001

PANFILO LACSON, MICHAEL RAY B. AQUINO and CESAR O. MANCAO, petitioners,vs.SECRETARY HERNANDO PEREZ, P/DIRECTOR LEANDRO MENDOZA, and P/SR. SUPT. REYNALDOBERROYA, respondents.

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G.R. No. 147781 May 10, 2001

MIRIAM DEFENSOR-SANTIAGO, petitioner,vs.ANGELO REYES, Secretary of National Defense, ET AL.,respondents.

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G.R. No. 147799 May 10, 2001

RONALDO A. LUMBAO, petitioner,vs.SECRETARY HERNANDO PEREZ, GENERAL DIOMEDIO VILLANUEVA, P/DIRECTOR LEANDRO MENDOZA, and P/SR.SUPT. REYNALDO BERROYA,respondents.

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G.R. No. 147810 May 10, 2001

THE LABAN NG DEMOKRATIKONG PILIPINO, petitioner, vs.THE DEPARTMENT OF JUSTICE, SECRETARY HERNANDO PEREZ, THE ARMED FORCES OF THE PHILIPPINES,GENERAL DIOMEDIO VILLANUEVA, THE PHILIPPINE NATIONAL POLICE, and DIRECTOR GENERAL LEANDROMENDOZA,respondents.

R E S O L U T I O N

On May 1, 2001 , President Macapagal-Arroyo, faced by an " angry and violent mob armed with explosives, firearms, bladed weapons, clubs,stones and other deadly weapons" assaulting and attempting to break into Malacañang , issued Proclamation No. 38 declaring that there was a

state of rebellion in the National Capital Region . She likewise issued General Order No. 1 directing the Armed Forces of the Philippines andthe Philippine National Police to suppress the rebellion in the National Capital Region. Warrantless arrests of several alleged leaders and

promoters of the "rebellion" were thereafter effected.

Aggrieved by the warrantless arrests, and the declaration of a "state of rebellion," which allegedly gave a semblance of legality to the arrests,the following four related petitions were filed before the Court –

(1) G. R. No. 147780 for prohibition, injunction, mandamus , and habeas corpus (with an urgent application for the issuance of temporaryrestraining order and/or writ of preliminary injunction) filed by Panfilio M. Lacson, Michael Ray B. Aquino, and Cezar O. Mancao; (2) G. R.

No. 147781 for mandamus and/or review of the factual basis for the suspension of the privilege of the writ of habeas corpus , with prayer for the suspension of the privilege of the writ of habeas corpus , with prayer for a temporary restraining order filed by Miriam Defensor-Santiago;



(3) G. R. No. 147799 for prohibition and injunction with prayer for a writ of preliminary injunction and/or restraining order filed by RonaldoA. Lumbao; and (4) G. R. No. 147810 for certiorari and prohibition filed by the political party Laban ng Demokratikong Pilipino.

All the foregoing petitions assail the declaration of a state of rebellion by President Gloria Macapagal-Arroyo and the warrantless arrestsallegedly effected by virtue thereof , as having no basis both in fact and in law. Significantly, on May 6, 2001 , President Macapagal-Arroyoordered the lifting of the declaration of a "state of rebellion" in Metro Manila. Accordingly, the instant petitions have been rendered moot andacademic. As to petitioners' claim that the proclamation of a "state of rebellion" is being used by the authorities to justify warrantless arrests,the Secretary of Justice denies that it has issued a particular order to arrest specific persons in connection with the "rebellion ." He states thatwhat is extant are general instructions to law enforcement officers and military agencies to implement Proclamation No. 38. Indeed, as statedin respondents' Joint Comments:

[I]t is already the declared intention of the Justice Department and police authorities to obtain regular warrants of arrests from thecourts for all acts committed prior to and until May 1, 2001 which means thatpreliminary investigations will henceforth beconducted.

(Comment, G.R. No. 147780, p. 28; G.R. No. 147781, p. 18; G.R. No. 147799, p. 16; G.R. No. 147810, p. 24)

With this declaration, petitioners' apprehensions as to warrantless arrests should be laid to rest.

In quelling or suppressing the rebellion, the authorities may only resort to warrantless arrests of persons suspected of rebellion, as provided

under Section 5, Rule 113 of the Rules of Court , if the circumstances so warrant. The warrantless arrest feared by petitioners is, thus, not based on the declaration of a "state of rebellion."

Moreover, petitioners' contention in G. R. No. 147780 (Lacson Petition), 147781 (Defensor-Santiago Petition), and 147799 (Lumbao Petition) that they are under imminent danger of being arrested without warrant do not justify their resort to the extraordinary remediesof mandamus and prohibition, since an individual subjected to warrantless arrest is not without adequate remedies in the ordinary course of law. Such an individual may ask for a preliminary investigation under Rule 112 of the Rules of Court, where he may adduce evidence in hisdefense, or he may submit himself to inquest proceedings to determine whether or not he should remain under custody and correspondingly

be charged in court. Further, a person subject of a warrantless arrest must be delivered to the proper judicial authorities within the periods provided in Article 125 of the Revised Penal Code , otherwise the arresting officer could be held liable for delay in the delivery of detained persons. Should the detention be without legal ground, the person arrested can charge the arresting officer with arbitrary detention. All this iswithout prejudice to his filing an action for damages against the arresting officer under Article 32 of the Civil Code. Verily, petitioners have asurfeit of other remedies which they can avail themselves of, thereby making the prayer for prohibition and mandamus improper at this time(Section 2 and 3, Rule 65, Rules of Court). 1âwphi1.nêt

Aside from the foregoing reasons, several considerations likewise inevitably call for the dismissal of the petitions at bar.

G.R. No. 147780

In connection with their alleged impending warrantless arrest, petitioners Lacson, Aquino, and mancao pray that the "appropriate court beforewhom the informations against petitioners are filed be directed to desist from arraigning and proceeding with the trial of the case, until theinstant petition is finally resolved." This relief is clearly premature considering that as of this date, no complaints or charges have been filedagainst any of the petitioners for any crime. And in the event that the same are later filed, this Court cannot enjoin criminal prosecutionconducted in accordance with the Rules of Court, for by that time any arrest would have been in pursuant of a duly issued warrant.

As regards petitioners' prayer that the hold departure orders issued against them be declared null and void ab initio , it is to be noted that petitioners are not directly assailing the validity of the subject hold departure orders in their petition. They are not even expressing intention toleave the country in the near future. The prayer to set aside the same must be made in proper proceedings initiated for that purpose.

Anent petitioners' allegations ex abundante ad cautelam in support of their application for the issuance of a writ of habeas corpus , it ismanifest that the writ is not called for since its purpose is to relieve petitioners from unlawful restraint ( Ngaya-an v. Balweg , 200 SCRA 149[1991]), a matter which remains speculative up to this very day.

G.R. No. 147781

The petition herein is denominated by petitioner Defensor-Santiago as one for mandamus . It is basic in matters relating to petitionsfor mandamus that the legal right of the petitioner to the performance of a particular act which is sought to be compelled must be clear andcomplete. Mandamus will not issue unless the right to relief is clear at the time of the award ( Palileo v. Ruiz Castro , 85 Phil. 272). Up to the

present time, petitioner Defensor Santiago has not shown that she is in imminent danger of being arrested without a warrant. In point of fact,the authorities have categorically stated that petitioner will not be arrested without a warrant.

G.R. No. 147799

Petitioner Lumbao, leader of the People's Movement against Poverty (PMAP), for his part, argues that the declaration of a "state of rebellion"is violative of the doctrine of separation of powers , being an encroachment on the domain of the judiciary which has the constitutional

prerogative to "determine or interpret" what took place on May 1, 2001, and that the declaration of a state of rebellion cannot be an exceptionto the general rule on the allocation of the governmental powers.

We disagree. To be sure, Section 18, Article VII of the Constitution expressly provides that "[t]he President shall be the Commander-in-Chief of all armed forces of the Philippines and whenever it becomes necessary, he may call out such armed forces to prevent or suppress lawlessviolence, invasion or rebellion…" Thus, we held in Integrated Bar of the Philippines v. Hon. Zamora , (G.R. No. 141284, August 15, 2000):

x x x The factual necessity of calling out the armed forces is not easily quantifiable and cannot be objectively established since mattersconsidered for satisfying the same is a combination of several factors which are not always accessible to the courts. Besides the absence of



textual standards that the court may use to judge necessity, information necessary to arrive at such judgment might also prove unmanageablefor the courts. Certain pertinent information might be difficult to verify, or wholly unavailable to the courts. In many instances, the evidenceupon which the President might decide that there is a need to call out the armed forces may be of a nature not constituting technical proof.

On the other hand, the President as Commander-in-Chief has a vast intelligence network to gather information, some of which may beclassified as highly confidential or affecting the security of the state. In the exercise of the power to call, on-the-spot decisions may beimperatively necessary in emergency situations to avert great loss of human lives and mass destruction of property. x x x

(at pp.22-23)

The Court, in a proper case, may look into the sufficiency of the factual basis of the exercise of this power. However, this is no longer feasibleat this time, Proclamation No. 38 having been lifted.

G.R. No. 147810

Petitioner Laban ng Demokratikong Pilipino is not a real party-in-interest . The rule requires that a party must show a personal stake in theoutcome of the case or an injury to himself that can be redressed by a favorable decision so as to warrant an invocation of the court's

jurisdiction and to justify the exercise of the court's remedial powers in his behalf ( KMU Labor Center v. Garcia, Jr. , 239 SCRA 386 [1994]).Here, petitioner has not demonstrated any injury to itself which would justify resort to the Court. Petitioner is a juridical person not subject toarrest. Thus, it cannot claim to be threatened by a warrantless arrest. Nor is it alleged that its leaders, members, and supporters are being

threatened with warrantless arrest and detention for the crime of rebellion. Every action must be brought in the name of the party whose legalright has been invaded or infringed, or whose legal right is under imminent threat of invasion or infringement.

At best, the instant petition may be considered as an action for declaratory relief, petitioner claiming that its right to freedom of expressionand freedom of assembly is affected by the declaration of a "state of rebellion" and that said proclamation is invalid for being contrary to theConstitution.

However, to consider the petition as one for declaratory relief affords little comfort to petitioner, this Court not having jurisdiction in the firstinstance over such a petition. Section 5[1], Article VIII of the Constitution limits the original jurisdiction of the Court to cases affectingambassadors, other public ministers and consuls, and over petitions for certiorari , prohibition, mandamus, quo warranto, and habeas corpus.

WHEREFORE, premises considered, the petitions are hereby DISMISSED. However, in G.R. No. 147780, 147781, and 147799, respondents,consistent and congruent with their undertaking earlier adverted to, together with their agents, representatives, and all persons acting for andin their behalf, are hereby enjoined from arresting petitioners therein without the required judicial warrant for all acts committed in relation to

or in connection with the may 1, 2001 siege of Malacañang.

3) G.R. Nos. 172070-72 June 1, 2007

VICENTE P. LADLAD, NATHANAEL S. SANTIAGO, RANDALL B. ECHANIS, and REY CLARO C. CASAMBRE,Petitioners,vs.SENIOR STATE PROSECUTOR EMMANUEL Y. VELASCO, SENIOR STATE PROSECUTOR JOSELITA C. MENDOZA,SENIOR STATE PROSECUTOR AILEEN MARIE S. GUTIERREZ, STATE PROSECUTOR IRWIN A. MARAYA, and STATEPROSECUTOR MERBA A. WAGA, in their capacity as members of the Department of Justice panel of prosecutors investigatingI.S. Nos. 2006-225, 2006-226 and 2006-234, JUSTICE SECRETARY RAUL M. GONZALEZ, DIRECTOR GENERAL ARTURO C.LOMIBAO, in his capacity as Chief, Philippine National Police, P/CSUPT. RODOLFO B. MENDOZA, JR., and P/SUPT.YOLANDA G. TANIGUE,Respondents.

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G.R. Nos. 172074-76 June 1, 2007

LIZA L. MAZA, JOEL G. VIRADOR, SATURNINO C. OCAMPO, TEODORO A. CASIÑO, CRISPIN B. BELTRAN, andRAFAEL V. MARIANO,Petitioners,vs.RAUL M. GONZALEZ, in his capacity as Secretary of the Department of Justice, JOVENCITO R. ZUÑO, in his capacity as Chief State Prosecutor, the Panel of Investigating Prosecutors composed of EMMANUEL Y. VELASCO, JOSELITA C. MENDOZA,AILEEN MARIE S. GUTIERREZ, IRWIN A. MARAYA and MERBA A. WAGA (Panel), RODOLFO B. MENDOZA, in hiscapacity as Acting Deputy Director, Directorate for Investigation and Detective Management (DIDM), YOLANDA G. TANIGUE, inher capacity as Acting Executive Officer of DIDM, the DEPARTMENT OF JUSTICE (DOJ), and the PHILIPPINE NATIONALPOLICE (PNP), Respondents.

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G.R. No. 175013 June 1, 2007

CRISPIN B. BELTRAN,Petitioner,vs.PEOPLE OF THE PHILIPPINES, SECRETARY RAUL M. GONZALEZ, in his capacity as the Secretary of Justice and overallsuperior of the Public Prosecutors, HONORABLE ENCARNACION JAJA G. MOYA, in her capacity as Presiding Judge of RegionalTrial Court of Makati City, Branch 146, and HONORABLE ELMO M. ALAMEDA, in his capacity as Presiding Judge of RegionalTrial Court of Makati City, Branch 150, Respondents.

D E C I S I O N



The Case

These are consolidated petitions for the writs of prohibition and certiorari to enjoin petitioners’ prosecution for Rebellion and to set aside therulings of the Department of Justice (DOJ) and the Regional Trial Court of Makati City (RTC Makati) on the investigation and prosecution of

petitioners’ cases.

The Facts

Petitioner in G.R. No. 175013, Crispin B. Beltran (Beltran), and petitioners in G.R. Nos. 172074-76, Liza L. Maza (Maza), Joel G. Virador (Virador), Saturnino C. Ocampo (Ocampo), Teodoro A. Casiño (Casiño), and Rafael V. Mariano (Mariano), 1 are members of the House of Representatives representing various party-list groups. 2Petitioners in G.R. Nos. 172070-72 are private individuals. Petitioners all face chargesfor Rebellion under Article 134 in relation to Article 135 of the Revised Penal Code in two criminal cases pending with the RTC Makati.

G.R. No. 175013 (The Beltran Petition)

Following the issuance by President Gloria Macapagal-Arroyo of Presidential Proclamation No. 1017 on 24 February 2006 declaring a "Stateof National Emergency," police officers 3 arrested Beltran on 25 February 2006, while he was en route to Marilao, Bulacan, and detained himin Camp Crame, Quezon City. Beltran was arrested without a warrant and the arresting officers did not inform Beltran of the crime for whichhe was arrested. On that evening, Beltran was subjected to an inquest at the Quezon City Hall of Justice for Inciting to Sedition under Article142 of the Revised Penal Code based on a speech Beltran allegedly gave during a rally in Quezon City on 24 February 2006, on the occasion

of the 20th

anniversary of the EDSA Revolution. The inquest was based on the joint affidavit of Beltran’s arresting officers who claimed tohave been present at the rally. The inquest prosecutor 4indicted Beltran and filed the corresponding Information with the Metropolitan TrialCourt of Quezon City (MeTC) .5

The authorities brought back Beltran to Camp Crame where, on 27 February 2006, he was subjected to a second inquest, with 1 st Lt. LawrenceSan Juan (San Juan), this time for Rebellion. A panel of State prosecutors 6 from the DOJ conducted this second inquest. The inquest was

based on two letters, both dated 27 February 2006, of Yolanda Tanigue (Tanigue) and of Rodolfo Mendoza (Mendoza). Tanigue is the ActingExecutive Officer of the Criminal Investigation and Detection Group (CIDG), Philippine National Police (PNP), while Mendoza is the ActingDeputy Director of the CIDG. The letters referred to the DOJ for appropriate action the results of the CIDG’s investigation implicatingBeltran, the petitioners in G.R. Nos. 172074-76, San Juan, and several others as "leaders and promoters" of an alleged foiled plot to overthrowthe Arroyo government. The plot was supposed to be carried out jointly by members of the Communist Party of the Philippines (CPP) and theMakabayang Kawal ng Pilipinas (MKP), which have formed a "tactical alliance."

On 27 February 2006, the DOJ panel of prosecutors issued a Resolution finding probable cause to indict Beltran and San Juan as

"leaders/promoters" of Rebellion . The panel then filed an Information with the RTC Makati. The Information alleged that Beltran, San Juan,and other individuals " conspiring and confederating with each other, x x x, did then and there willfully, unlawfully, and feloniously form atactical alliance between the CPP/NPA, renamed as Partidong Komunista ng Pilipinas (PKP) and its armed regular members as Katipunan ngAnak ng Bayan (KAB) with the Makabayang Kawal ng Pilipinas (MKP) and thereby rise publicly and take up arms against the dulyconstituted government, x x x." 7 The Information, docketed as Criminal Case No. 06-452, was raffled to Branch 137 under Presiding JudgeJenny Lind R. Aldecoa-Delorino (Judge Delorino).

Beltran moved that Branch 137 make a judicial determination of probable cause against him. 8 Before the motion could be resolved, JudgeDelorino recused herself from the case which was re-raffled to Branch 146 under Judge Encarnacion Jaja-Moya (Judge Moya).

In its Order dated 31 May 2006, Branch 146 sustained the finding of probable cause against Beltran. 9 Beltran sought reconsideration butJudge Moya also inhibited herself from the case without resolving Beltran’s motion. Judge Elmo M. Alameda of Branch 150, to whom thecase was re-raffled, issued an Order on 29 August 2006 denying Beltran’s motion.

Hence, the petition in G.R. No. 175013 to set aside the Orders dated 31 May 2006 and 29 August 2006 and to enjoin Beltran’s prosecution.

In his Comment to the petition, the Solicitor General claims that Beltran’s inquest for Rebellion was valid and that the RTC Makati correctlyfound probable cause to try Beltran for such felony.

G.R. Nos. 172070-72 and 172074-76 (The Maza and Ladlad Petitions)

Based on Tanigue and Mendoza’s letters, the DOJ sent subpoenas to petitioners on 6 March 2006 requiring them to appear at the DOJ Officeon 13 March 2006 "to get copies of the complaint and its attachment." Prior to their receipt of the subpoenas, petitioners had quarteredthemselves inside the House of Representatives building for fear of being subjected to warrantless arrest.

During the preliminary investigation on 13 March 2006, the counsel for the CIDG presented a masked man, later identified as Jaime Fuentes(Fuentes), who claimed to be an eyewitness against petitioners. Fuentes subscribed to his affidavit before respondent prosecutor Emmanuel

Velasco who then gave copies of the affidavit to media members present during the proceedings. The panel of prosecutors10

gave petitioners10 days within which to file their counter-affidavits. Petitioners were furnished the complete copies of documents supporting the CIDG’sletters only on 17 March 2006.

Petitioners moved for the inhibition of the members of the prosecution panel for lack of impartiality and independence, considering the political milieu under which petitioners were investigated, the statements that the President and the Secretary of Justice made to the mediaregarding petitioners’ case, 11 and the manner in which the prosecution panel conducted the preliminary investigation. The DOJ panel of

prosecutors denied petitioners’ motion on 22 March 2006. Petitioners sought reconsideration and additionally prayed for the dismissal of thecases. However, the panel of prosecutors denied petitioners’ motions on 4 April 2006.

Petitioners now seek the nullification of the DOJ Orders of 22 March 2006 and 4 April 2006.

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For the failure of Beltran’s panel of inquest prosecutors to comply with Section 7, Rule 112 in relation to Section 5, Rule 113 and DOJCircular No. 61, we declare Beltran’s inquest void .19 Beltran would have been entitled to a preliminary investigation had he not asked the trialcourt to make a judicial determination of probable cause, which effectively took the place of such proceeding.

There is No Probable Cause to Indict

Beltran for Rebellion.

Probable cause is the "existence of such facts and circumstances as would excite the belief in a reasonable mind, acting on the facts within theknowledge of the prosecutor, that the person charged was guilty of the crime for which he was prosecuted." 20 To accord respect to thediscretion granted to the prosecutor and for reasons of practicality, this Court, as a rule, does not interfere with the prosecutor’s determinationof probable cause for otherwise, courts would be swamped with petitions to review the prosecutor’s findings in suchinvestigations .21However, in the few exceptional cases where the prosecutor abused his discretion by ignoring a clear insufficiency of evidence to support a finding of probable cause , thus denying the accused his right to substantive and procedural due process , we have nothesitated to intervene and exercise our review power under Rule 65 to overturn the prosecutor’s findings. 22 This exception holds true here.

Rebellion under Article 134 of the Revised Penal Code is committed –

[B]y rising publicly and taking arms against the Government for the purpose of removing from the allegiance to said Government or its laws,the territory of the Republic of the Philippines or any part thereof, or any body of land, naval, or other armed forces or depriving the Chief

Executive or the Legislature, wholly or partially, of any of their powers or prerogatives.

The elements of the offense are:

1. That there be a (a) public uprising and (b) taking arms against the Government; and

2. That the purpose of the uprising or movement is either –

(a) to remove from the allegiance to said Government or its laws:

(1) the territory of the Philippines or any part thereof; or

(2) any body of land, naval, or other armed forces; or

(b) to deprive the Chief Executive or Congress, wholly or partially, of any of their powers and prerogatives. 23

Thus, by its nature, rebellion is a crime of the masses or multitudes involving crowd action done in furtherance of a political end .24

The evidence before the panel of prosecutors who conducted the inquest of Beltran for Rebellion consisted of the affidavits and other documents 25 attached to the CIDG letters. We have gone over these documents and find merit in Beltran’s contention that the same areinsufficient to show probable cause to indict him for Rebellion. The bulk of the documents consists of affidavits, some of which were sworn

before a notary public, executed by members of the military and some civilians. Except for two affidavits, executed by a certain Ruel Escala(Escala), dated 20 Febuary 2006 ,26 and Raul Cachuela (Cachuela ), dated 23 February 2006, 27 none of the affidavits mentions Beltran. 28 In hisaffidavit, Escala recounted that in the afternoon of 20 February 2006, he saw Beltran, Ocampo, Casiño, Maza, Mariano, Virador, and other individuals on board a vehicle which entered a chicken farm in Bucal, Padre Garcia, Batangas and that after the passengers alighted, theywere met by another individual who looked like San Juan. For his part, Cachuela stated that he was a former member of the CPP and that (1)he attended the CPP’s "10 th Plenum" in 1992 where he saw Beltran; (2) he took part in criminal activities; and (3) the arms he and the other CPP members used were purchased partly from contributions by Congressional members, like Beltran, who represent party-list groupsaffiliated with the CPP.

The allegations in these affidavits are far from the proof needed to indict Beltran for taking part in an armed public uprising against thegovernment. What these documents prove, at best, is that Beltran was in Bucal, Padre Garcia, Batangas on 20 February 2006 and that 14 yearsearlier, he was present during the 1992 CPP Plenum. None of the affidavits stated that Beltran committed specific acts of promoting,maintaining, or heading a rebellion as found in the DOJ Resolution of 27 February 2006. None of the affidavits alleged that Beltran is a leader of a rebellion. Beltran’s alleged presence during the 1992 CPP Plenum does not automatically make him a leader of a rebellion.

In fact, Cachuela’s affidavit stated that Beltran attended the 1992 CPP Plenum as "Chairman, Kilusang Mayo Uno (KMU)." Assuming thatBeltran is a member of the CPP, which Beltran does not acknowledge, mere membership in the CPP does not constitute rebellion. 29 As for thealleged funding of the CPP’s military equipment from Beltran’s congressional funds, Cachuela’s affidavit merely contained a generalconclusion without any specific act showing such funding. Cachuela merely alleged that "ang mga ibang mga pondo namin ay galing sa mga

party list na naihalal sa Kongreso tulad ng BAYAN MUNA – pimumunuan nila SATUR OCAMPO at CRISPIN BELTRAN, x x x." 30Such ageneral conclusion does not establish probable cause.

In his Comment to Beltran’s petition, the Solicitor General points to Fuentes’ affidavit, dated 25 February 2006, 31as basis for the finding of probable cause against Beltran as Fuentes provided details in his statement regarding meetings Beltran and the other petitioners attended in2005 and 2006 in which plans to overthrow violently the Arroyo government were allegedly discussed, among others.

The claim is untenable. Fuentes’ affidavit was not part of the attachments the CIDG referred to the DOJ on 27 February 2006. Thus, the panelof inquest prosecutors did not have Fuentes’ affidavit in their possession when they conducted the Rebellion inquest against Beltran on thatday. Indeed, although this affidavit is dated 25 February 2006, the CIDG first presented it only during the preliminary investigation of theother petitioners on 13 March 2006 during which Fuentes subscribed to his statement before respondent prosecutor Velasco.






































Respondent prosecutors later tried to remedy this fatal defect by motu proprio submitting to Branch 137 of the RTC Makati Fuentes’ affidavitas part of their Comment to Beltran’s motion for judicial determination of probable cause. Such belated submission, a tacit (implied)admission of the dearth (absence) of evidence against Beltran during the inquest, does not improve the prosecution’s case. Assuming them to

be true, what the allegations in Fuentes’ affidavit make out is a case for Conspiracy to Commit Rebellion, punishable under Article 136 of theRevised Penal Code, not Rebellion under Article 134. Attendance in meetings to discuss, among others, plans to bring down a government isa mere preparatory step to commit the acts constituting Rebellion under Article 134 . Even the prosecution acknowledged this, since the felonycharged in the Information against Beltran and San Juan in Criminal Case No. 06-452 is Conspiracy to Commit Rebellion and not Rebellion .

The Information merely alleged that Beltran, San Juan, and others conspired to form a "tactical alliance" to commit Rebellion. Thus, the RTCMakati erred when it nevertheless found probable cause to try Beltran for Rebellion based on the evidence before it.

The minutes 32 of the 20 February 2006 alleged meeting in Batangas between members of MKP and CPP, including Beltran, also do notdetract from our finding. 1a\^/phi1.net Nowhere in the minutes was Beltran implicated. While the minutes state that a certain "Cris" attendedthe alleged meeting, there is no other evidence on record indicating that "Cris" is Beltran. San Juan, from whom the "flash drive" containingthe so-called minutes was allegedly taken, denies knowing Beltran.

To repeat, none of the affidavits alleges that Beltran is promoting, maintaining, or heading a Rebellion. The Information in Criminal Case No.06-452 itself does not make such allegation. Thus, even assuming that the Information validly charges Beltran for taking part in a Rebellion,he is entitled to bail as a matter of right since there is no allegation in the Information that he is a leader or promoter of theRebellion .33 However, the Information in fact merely charges Beltran for "conspiring and confederating" with others in forming a "tacticalalliance" to commit rebellion. As worded, the Information does not charge Beltran with Rebellion but with Conspiracy to Commit Rebellion,a bailable offense. 34

On the Ladlad and Maza Petitions

The Preliminary Investigation was Tainted With Irregularities.

As in the determination of probable cause, this Court is similarly loath to enjoin the prosecution of offenses, a practice rooted on publicinterest as the speedy closure of criminal investigations fosters public safety. 35 However, such relief in equity may be granted if, amongothers, the same is necessary (a) to prevent the use of the strong arm of the law in an oppressive and vindictive manner 36 or (b) to affordadequate protection to constitutional rights .37 The case of the petitioners in G.R. Nos. 172070-72 and 172074-76 falls under these exceptions.

The procedure for preliminary investigation of offenses punishable by at least four years, two months and one day is outlined in Section 3,Rule 112 of the Revised Rules of Criminal Procedure, thus:

Procedure. —The preliminary investigation shall be conducted in the following manner:

(a) The complaint shall state the address of the respondent and shall be accompanied by the affidavits of the complainant and his witnesses, aswell as other supporting documents to establish probable cause. They shall be in such number of copies as there are respondents, plus two (2)copies for the official file. The affidavits shall be subscribed and sworn to before any prosecutor or government official authorized toadminister oath, or, in their absence or unavailability, before a notary public, each of whom must certify that he personally examined theaffiants and that he is satisfied that they voluntarily executed and understood their affidavits.

(b) Within ten (10) days after the filing of the complaint, the investigating officer shall either dismiss it if he finds no ground to continue withthe investigation, or issue a subpoena to the respondent attaching to it a copy of the complaint and its supporting affidavits and documents.

The respondent shall have the right to examine the evidence submitted by the complainant which he may not have been furnished and to copythem at his expense. If the evidence is voluminous, the complainant may be required to specify those which he intends to present against therespondent, and these shall be made available for examination or copying by the respondent at his expense.

Objects as evidence need not be furnished a party but shall be made available for examination, copying, or photographing at the expense of the requesting party.

(c) Within ten (10) days from receipt of the subpoena with the complaint and supporting affidavits and documents, the respondent shallsubmit his counter-affidavit and that of his witnesses and other supporting documents relied upon for his defense. The counter-affidavits shall

be subscribed and sworn to and certified as provided in paragraph (a) of this section, with copies thereof furnished by him to the complainant.The respondent shall not be allowed to file a motion to dismiss in lieu of a counter-affidavit.

(d) If the respondent cannot be subpoenaed, or if subpoenaed, does not submit counter-affidavits within the ten (10) day period, theinvestigating officer shall resolve the complaint based on the evidence presented by the complainant.

(e) The investigating officer may set a hearing if there are facts and issues to be clarified from a party or a witness. The parties can be present

at the hearing but without the right to examine or cross-examine. They may, however, submit to the investigating officer questions which may be asked to the party or witness concerned.

The hearing shall be held within ten (10) days from submission of the counter-affidavits and other documents or from the expiration of the period for their submission. It shall be terminated within five (5) days.

(f) Within ten (10) days after the investigation, the investigating officer shall determine whether or not there is sufficient ground to hold therespondent for trial. (Emphasis supplied)

Instead of following this procedure scrupulously, as what this Court had mandated in an earlier ruling, "so that the constitutional right toliberty of a potential accused can be protected from any material damage," 38 respondent prosecutors nonchalantly disregarded it. Respondent

prosecutors failed to comply with Section 3(a) of Rule 112 which provides that the complaint (which, with its attachment, must be of suchnumber as there are respondents) be accompanied by the affidavits of the complainant and his witnesses, subscribed and sworn to before any























prosecutor or government official authorized to administer oath, or, in their absence or unavailability, before a notary public. Respondent prosecutors treated the unsubscribed letters of Tanigue and Mendoza of the CIDG, PNP as complaints 39 and accepted the affidavits attached tothe letters even though some of them were notarized by a notary public without any showing that a prosecutor or qualified governmentofficial was unavailable as required by Section 3(a) of Rule 112.

Further, Section 3(b) of Rule 112 mandates that the prosecutor, after receiving the complaint, must determine if there are grounds to continuewith the investigation. If there is none, he shall dismiss the case, otherwise he shall "issue a subpoena to the respondents." Here, after receiving the CIDG letters, respondent prosecutors peremptorily issued subpoenas to petitioners requiring them to appear at the DOJ office on13 March 2006 "to secure copies of the complaints and its attachments." During the investigation, respondent prosecutors allowed the CIDGto present a masked Fuentes who subscribed to an affidavit before respondent prosecutor Velasco. Velasco proceeded to distribute copies of Fuentes’ affidavit not to petitioners or their counsels but to members of the media who covered the proceedings. Respondent prosecutors thenrequired petitioners to submit their counter-affidavits in 10 days. It was only four days later, on 17 March 2006, that petitioners received thecomplete copy of the attachments to the CIDG letters. 1a\^/phi1.net

These uncontroverted facts belie respondent prosecutors’ statement in the Order of 22 March 2006 that the preliminary investigation "wasdone in accordance with the Revised Rules o[f] Criminal Procedure." 40 Indeed, by peremptorily issuing the subpoenas to petitioners, toleratingthe complainant’s antics during the investigation, and distributing copies of a witness’ affidavit to members of the media knowing that

petitioners have not had the opportunity to examine the charges against them, respondent prosecutors not only trivialized the investigation butalso lent credence to petitioners’ claim that the entire proceeding was a sham.

A preliminary investigation is the crucial sieve in the criminal justice system which spells for an individual the difference between months if

not years of agonizing trial and possibly jail term, on the one hand, and peace of mind and liberty, on the other hand. Thus, we havecharacterized the right to a preliminary investigation as not "a mere formal or technical right" but a "substantive" one, forming part of due

process in criminal justice. 41 This especially holds true here where the offense charged is punishable by reclusion perpetua and may be non- bailable for those accused as principals.

Contrary to the submission of the Solicitor General, respondent prosecutors’ filing of the Information against petitioners on 21 April 2006with Branch 57 of the RTC Makati does not moot the petitions in G.R. Nos. 172070-72 and 172074-76. Our power to enjoin prosecutionscannot be frustrated by the simple filing of the Information with the trial court .1a\^/phi1.net

On Respondent Prosecutors’ Lack of Impartiality

We find merit in petitioners’ doubt on respondent prosecutors’ impartiality. Respondent Secretary of Justice, who exercises supervision andcontrol over the panel of prosecutors, stated in an interview on 13 March 2006, the day of the preliminary investigation, that, "We [the DOJ]will just declare probable cause, then it’s up to the [C]ourt to decide x x x." 42 Petitioners raised this issue in their petition, 43 but respondentsnever disputed the veracity of this statement . This clearly shows pre-judgment, a determination to file the Information even in the absence of

probable cause.

A Final Word

The obvious involvement of political considerations in the actuations of respondent Secretary of Justice and respondent prosecutors brings tomind an observation we made in another equally politically charged case. We reiterate what we stated then, if only to emphasize theimportance of maintaining the integrity of criminal prosecutions in general and preliminary investigations in particular, thus:

[W]e cannot emphasize too strongly that prosecutors should not allow, and should avoid, giving the impression that their noble office is beingused or prostituted, wittingly or unwittingly, for political ends, or other purposes alien to, or subversive of, the basic and fundamentalobjective of observing the interest of justice evenhandedly, without fear or favor to any and all litigants alike, whether rich or poor, weak or strong, powerless or mighty. Only by strict adherence to the established procedure may be public’s perception of the impartiality of the

prosecutor be enhanced .44

1a\^/phi1.net

WHEREFORE, we GRANT the petitions. In G.R. No. 175013, we SET ASIDE the Order dated 31 May 2006 of the Regional Trial Court,Makati City, Branch 146 and the Order dated 29 August 2006 of the Regional Trial Court, Makati City, Branch 150. In G.R. Nos. 172070-72and 172074-76, we SET ASIDE the Orders dated 22 March 2006 and 4 April 2006 issued by respondent prosecutors. We ORDER theRegional Trial Court, Makati City, Branch 150 to DISMISS Criminal Case Nos. 06-452 and 06-944.

Art. 136 – Conspiracy and proposal to commit rebellionArt. 148 – Direct Assault

5) GR Nos. 136149-51 September 19, 2000

PEOPLE OF THE PHILIPPINES, appellee,

vs.WALPAN LADJAALAM y MIHAJIL alias “WARPAN”, appellant

Republic Act No. 8294 penalizes simple illegal possession of firearms , provided that the person arrested committed “no other crime.”Furthermore, if the person is held liable for murder or homicide, illegal possession of firearms is an aggravating circumstance, but not aseparate offense. Hence, where an accused was convicted of direct assault with multiple attempted homicide for firing an unlicensed M-14rifle at several policemen who were about to serve a search warrant, he cannot be held guilty of the separate offense of illegal possession of firearms. Neither can such unlawful act be considered to have aggravated the direct assault.

The Case

Walpan Ladjaalam y Mihajil, also known as “Warpan,” appeals before us the September 17, 1998 Decision [1] of the Regional Trial Court(RTC) of Zamboanga City (Branch 16), which found him guilty of three out of the four charges lodged against him.











http://sc.judiciary.gov.ph/jurisprudence/2000/sept2000/136149_51.htm#_edn1










Filed against appellant were four Informations ,[2] all signed by Assistant Regional State Prosecutor Ricardo G. Cabaron and dated September 25, 1997. The first Information [3] was for maintaining a den for the use of regulated drugs. It reads as follows:

“That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, Walpan Ladjaalam being then the owner of a residential house located at Rio Hondo, [4] this City, conspiring andconfederating together, mutually aiding and assisting x x x his co-accused wife Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini, did thenand there wilfully, unlawfully and feloniously, maintain said house as a den, where regulated drug [was] used in any form.” [5]

The second Information [6] charged appellant with illegal possession of firearms and ammunition. We quote it below:

“That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, conspiring and confederating together, mutually aiding and assisting with one another, without any justifiable reason or

purpose other than to use it in the commission of crime, did then and there, wilfully, unlawfully, and feloniously have in their possession andunder their custody and control, the following weapons, to wit: one (1) M14 rifle with SN 1555225 with magazines and seven (7) rounds of live ammunition; two (2) magazines with twenty (20) and twenty[-one] (21) rounds of live [ammunition]; one (1) homemade caliber .38revolver with five (5) live ammunition; one (1) M-79 (single) rifle with pouch and with five (5) empty shell[s]; one (1) home made caliber .38with SN-311092 with five live ammunition and one empty shell of [a] cal. 38 x x x Smith and Wesson; two (2) .38 Caliber paltik revolver with Serial Number 311092 and one defaced M79 grenade launcher paltik, without first having obtained the necessary license and or permittherefor from authorities concerned, in flagrant violation of the aforementioned law.” [7]

The third Information, [8] for multiple attempted murder with direct assault, was worded thus:

“That on or about September 24, 1997, in the City of Zamboanga, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused being then armed with M-14 Armalite Rifles, M-16 Armalite Rifles and other assorted firearms and explosives, conspiringand confederating together, mutually aiding and assisting x x x one another and with intent to kill, did then and there wilfully, unlawfully andfeloniously try and attempt to kill SPO1 WILLIAM B. JONES, JR., PO3 ENRIQUE C. RIVERA[,] SPO1 AMADO A. MIRASOL, JR., andSPO1 RICARDO J. LACASTESANTOS, in the following manner, to wit: by then and there firing their M-14 x x x Armalite Rifles, M-16Armalite Rifles and other assorted firearms and explosives, aimed and directed at the fatal parts of the bodies of the above-named policeofficers, well known to the accused as members of the Philippine National Police, Zamboanga City Police Office, and as such, agents of a

person in authority, who at the time of the attack were engaged in the performance of their duties, that is, on the occasion when said officerswere about to serve the Search Warrant legally issued by the Regional Trial Court, this City, to the person of the accused thus commencingthe commission of crime of multiple murder directly by overt acts, and if the accused did not accomplish their unlawful purpose, that is, tokill the above-named Police Officers, it was not by reason of their own voluntary desistance but rather because of the fact that all the above-named police officers were able to seek cover during the firing and were not hit by the bullets and explosives fired by the accused and also bythe fact said police officers were able to wrestle with two (2) of the accused namely: Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’ and Ahmad

Sailabbi y Hajairani, who were subdued and subsequently placed under arrest; whereas accused PO2 Nurhakim T. Hadjula was able to makegood his escape and has remained at-large.” [9]

In the fourth Information, appellant was charged with illegal possession of drugs. [10]

On December 21, 1997, the cases against Nur-in Ladjaalam and Ahmad Sailabbi y Hajaraini were dismissed upon motion of the Office of theCity Prosecutor, which had conducted a reinvestigation of the cases as ordered by the lower court. The accused were consequently releasedfrom jail.

The arraignment of appellant on all four (4) charges took place on January 6, 1998, during which he entered a plea of not guilty .[11] After pretrial, the assailed Decision was rendered, the dispositive part of which reads:

“WHEREFORE, the Court finds accused WALPAN LADJAALAM y MIHAJILa.k.a. ‘ WARPAN ’ -

“1. in Criminal Case No. 14636, GUILTY BEYOND REASONABLE DOUBTof Violation of Section 15-A, Article III, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and SENTENCES said accused to the penaltyof RECLUSION PERPETUAand to pay a fine of FIVE HUNDRED THOUSAND(P500,000.00) and to pay the costs;

“2. In Criminal Case No. 14637, NOT GUILTY of Violation of Section 16, Article III, in relation to Section 21, Article IV, of Republic Act No. 6425, otherwise known as the Dangerous Drugs Act of 1972, as amended, and ACQUITShim of said crime with costs de oficio;

“3. in Criminal Case No. 14638, GUILTY BEYOND REASONABLE DOUBTof the crime of Illegal Possession of Firearm andAmmunition penalized under Presidential Decree No. 1866, as amended by Republic Act. No. 8294, and SENTENCESsaid accused to suffer an indeterminate penalty of SIX (6) YEARSof prision correccional as minimum to EIGHT (8) YEARSof prision mayor as maximum andto pay a fine [of] THIRTY THOUSAND (P30,000.00)and pay the costs;

“4. in Criminal Case No. 14639, GUILTY BEYOND REASONABLE DOUBTof the crime of Direct Assault with Multiple AttemptedHomicide and SENTENCESsaid accused to an indeterminate penalty of TWO (2) YEARS and FOUR (4) MONTHSof prision

correccional as minimum to SIX (6) YEARSof prision correccional as maximum and to pay a fine of ONE THOUSAND (P1,000.00)and to pay the costs.” (emphasis in the original)

Hence, this appeal .[12]

The Facts

Prosecution’s Version

In its Brief ,[13] the Office of the Solicitor General presents the facts in this wise:

































“At 1:45 p.m. of September 24, 1997, PO3 Allan Marcos Obut filed an application for the issuance of a search warrant against appellant, hiswife and some John Does (Exh. C). After the search warrant was issued about 2:30 p.m. of the same day, a briefing was conducted inside theoffice of the Anti-Vice/Narcotics Unit of the Zamboanga City Police Office in connection with the service of the search warrant. The briefingwas conducted by SPO2 Felipe Gaganting, Chief of the Anti-Vice/Narcotics Unit. During the briefing, PO3 Renato Dela Peña was assignedas presentor of the warrant. SPO1 Ricardo Lacastesantos and PO3 Enrique Rivera were designated to conduct the search. Other policemenwere assigned as perimeter guards (TSN, March 3, 1998, pp. 33-36).

“After the briefing, more than thirty (30) policemen headed by Police Superintendent Edwin Soledad proceeded to the house of appellant andhis wife at Rio Hondo on board several police vehicles (TSN, March 4, 1998, p. 32; April 22, 1998, p. 54). Before they could reachappellant’s house, three (3) persons sitting at a nearby store ran towards the house shouting, ‘[P]olice, raid, raid’ (Ibid., March 3, 1998, pp. 41,43-44; April 23, 1998, p. 4). When the policemen were about ten (10) meters from the main gate of the house, they were met by a rapid burstof gunfire coming from the second floor of the house. There was also gunfire at the back of the house (Ibid., March 5, 1998, pp. 14-16).

“SPO1 Mirasol, SPO2 Lacastesantos, PO3 Rivera, and PO3 Dela Peña who were with the first group of policemen saw appellant fire an M14rifle towards them.They all knew appellant. When they were fired upon, the group, together with SPO2 Gaganting, PO3 Obut andSuperintendent Soledad, sought cover at the concrete fence to observe the movements at the second floor of the house while other policemensurrounded the house (Ibid., March 4, 1998, pp. 50-51).

“In front of the house was an extension building connected to the concrete fence (Ibid., pp. 45-46, 57-59, 73-76). Gaganting, Mirasol,Lacastesantos, Gregorio, and Obut entered the door of the extension building. Gaganting opened the main (steel) gate of the house. The other members of the team then entered. Lacastesantos and Mirasol entered the house through the main door and went inside the sala of the ground

floor while other policemen surrounded the house. Two (2) old women were in the sala together with a young girl and three (3) children. Oneof the old women took the children to the second floor while the young girl remained seated at the corner (Ibid., pp. 19-21).

“Lacastesantos and Mirasol proceeded to the second floor where they earlier saw appellant firing an M14 rifle at them through thewindow. While they were going upstairs, appellant noticed their presence. He went inside the bedroom and, after breaking and removing the

jalousies, jumped from the window to the roof of a neighboring house. Seeing this, Mirasol rushed downstairs and asked help from the other members of the raiding team to arrest appellant. Lacastesantos went to the second floor and shouted to the policemen outside not to fire in thedirection of the second floor because there were children. Mirasol and SPO1 Cesar Rabuya arrested appellant at the back of his house after a

brief chase (Ibid., pp. 21-23).

“At the second floor, Lacastesantos saw an M14 rifle (Exh. B-3) with magazine on top of the sofa at the sala on the second floor (Ibid., P.27). The rifle bore Serial No. 1555225. He removed the magazine from the rifle and the bullet inside the chamber of the rifle. He countedseventeen (17) live ammunition inside the magazine.He saw two (2) more M14 rifle magazines on the sofa, one with twenty (20) liveammunition (Exh. G-3) and another with twenty-one (21) live ammunition (Exh. G-4). He likewise saw three (3) M16 rifle magazines (Exh.

G-2) in a corner at the second floor (TSN, March 5, 1998, pp. 23-32, 53-57).

“After Lacastesantos and Mirasol entered appellant’s house, Rivera, Dela Peña, Gregorio and Obut followed and entered the house. After identifying themselves as members of the PNP Anti-Vice/Narcotics Unit, Obut presented to the old women a copy of the search warrant. DelaPeña and Rivera then searched appellant’s room on the ground floor in the presence of Punong Barangay Elhano (TSN, March 3, 1998, pp.41-43). On top of a table was a pencil case (Exh. J) with fifty (50) folded aluminum foils inside (Exhs. J-1 to J-50), each containingmethamphetamine hydrochloride or ‘shabu’.

“Other items were found during the search, namely, assorted coins in different denominations (Exh. W; TSN, April 28, 1998, pp. 23-25), one(1) homemade .38 caliber revolver (Exh. B-2) with five (5) live [ammunition], one (1) M79 single rifle with [a] pouch containing five (5)empty shells of an M79 rifle (Exh. B-4), and one (1) empty shell of an M14 rifle (TSN, April 23, 1998, pp. 30-32).

“Rino Bartolome Locson was an informer of the Anti-Vice/Narcotics Unit of the Zamboanga Police. [O]n the morning of September 24,1997, he was instructed by SPO2 Gaganting to go to appellant’s house to buy ‘shabu.’ Locson knew appellant as a seller of ‘shabu’ (TSN,April 22, 1998, p. 5) and had been to appellant’s house about fifteen (15) times before. He went to Rio Hondo and arrived at appellant’s houseat 3:20 p.m. He bought P300.00 worth of ‘shabu’ from appellant. The latter got three (3) decks of shabu from his waist bag. Appellantinstructed Locson to go behind the curtain where there was a table. There were six (6) persons already smoking. There was a lighted kerosenelamp made of a medicine bottle placed on the table. They asked Locson to smoke ‘shabu’ and Locson obliged. He placed the three (3) decksof ‘shabu’ he bought on the table (Ibid., pp. 8-15).

“While they were smoking ‘shabu,’ Locson heard gunfire coming from appellant’s house. They all stood and entered appellant’s compound but were instructed to pass [through] the other side. They met appellant at the back of his house. Appellant told them to escape ‘because the police are already here.’ They scampered and ‘ran away because there were already shots.’ Locson jumped over the fence and ran towards theseashore. Upon reaching a place near the Fisheries School, he took a tricycle and went home (Ibid., pp. 17-19).

“The following day, September 25, 1997, he went to the police station and executed an affidavit (Exh. M) narrating what transpired atappellant’s house [o]n the afternoon of September 24, 1997.

“After the search and before returning to the police station, P03 Dela Peña prepared a ‘Receipt for Property Seized’ (Exh. P & 3) listing the properties seized during the search. The receipt was signed by Dela Peña as the seizure officer, and by Punong Barangay Hadji Hussin Elhanoand radio reporter Jun Cayona as witnesses. A copy of the receipt was given to appellant but he refused to acknowledge the properties seized(TSN, April 23, 1998, pp. 11-12).

“An examination conducted by Police Inspector Mercedes D. Diestro, Forensic Chemist of the PNP Crime Laboratory Service Office 9, onthe paraffin casts taken from both hands of appellant yielded positive for gunpowder nitrates (Exh. A-3), giving rise to the possibility thatappellant had fired a gun before the examination (TSN, March 3, 1998, p. 11). Gunpowder residue examinations conducted on September 26,1997 showed that the following firearms ‘were fired’ (Exh. B-5): a .38 caliber revolver (homemade) with Serial No. 311092 (Exh. B-1),another .38 caliber revolver (homemade) without a serial number (Exh. B-2), a Cal. 7.62 mm M14 U.S. rifle with Serial No. 1555225 (Exh.B-3), and an M79 rifle without a serial number (Exh. B-4). They were fired within five (5) days prior to the examination (TSN, March 3,1998, pp. 16-21).



“With respect to the crystalline substances, an examination conducted by Police Inspector Susan M. Cayabyab, likewise a Forensic Chemistof the PNP Crime Laboratory Service Office 9, on the fifty (50) pieces of folded aluminum foils each containing white crystalline granuleswith a total weight of 1.7426 grams (Exh. J-1 to J-50) yielded positive results for the presence of methamphetamine hydrochloride (shabu)(Exh. L). However, the examination of one (1) crystalline stone weighing 83.2674 grams (Exh. K) yielded negative results for the presence of methamphetamine hydrochloride (Exh. L).

“The records of the Regional Operation and Plans Division of the PNP Firearm and Explosive Section show that appellant ‘had notapplied/filed any application for license to possess firearm and ammunition or x x x been given authority to carry [a] firearm outside of hisresidence’ (Exh. X)” [14]

Defense’s Version

Appellant Ladjaalam agrees with the narration of facts given by the lower court. [15] Hence, we quote the pertinent parts of the assailedDecision:

“Accused Walpan Ladjaalam y Mihajil a.k.a. ‘Warpan’, 30 years old, married, gave his occupation as ‘smuggling’ (tsn, p. 2, May 4,1998). He used to go to Labuan in Malaysia and bring cigarettes to the Philippines without paying taxes (tsn, pp. 40-41, id). He said that histrue name [was] Abdul Nasser Abdurakman and that Warpan or Walpan Ladjaalam [was] only his ‘alias’. However, he admitted that more

people kn[e]w him as Walpan Ladjaalam rather than Abdul Nasser Abdurakman (tsn. pp. 39-40; 46-47, id). He testified that [o]n theafternoon of September 24, 1997, when he was arrested by the police, he was sleeping in the house of Dandao, a relative of his wife. He wasalone. He slept in Dandao’s house and not in his house because they ha[d] ‘a sort of a conference’ as Dandao’s daughter was leaving for Saudi Arabia. He noticed the presence of policemen in his neighborhood at Aplaya, Rio Hondo when he heard shots. He woke up and wentout of the house and that was the time that he was arrested. He said he was arrested ‘ xxx [at] the other side of my house; at the other side of the fence where I was sleeping. xxx. At the back of my house ’ (tsn, p. 7, id.). He does not know who arrested him ‘ considering that the onewho arrested me does not have nameplate .’ He was arrested by four (4) persons. Not one of those who arrested him testified in Court. He washandcuffed and placed inside a jeep parked at Rio Hondo Elementary School. According to him, he did not fire a gun at the policemen from[t]he second floor of his house. He said the ‘ policemen ’ [were] ‘ the one[s] who fire[d] at us ’ (tsn, p. 5, id.). If he fired a gun at the policemenfor sure they [would] die ‘ [b]ecause the door is very near x x x the vicinity of my house ’. He does not own the M14 rifle (Exh. ‘B-3’) whichaccording to policemen, he used in firing at them. The gun does not belong to him. He does not have a gun like that (tsn, p. 15, id.). A

policeman also owns an M14 rifle but he does not know the policeman (tsn, pp. 16-17, id). He said that the M79 rifle (Exh. ‘B-4’), the three(3) empty M16 rifle magazines (Exh. ‘G’; ‘G-1’ to ‘G-2’), the two (2) M14 magazines with live ammunition (Exh. ‘G-3’; ‘G-4’); the two (2)caliber .38 revolvers (Exhs. ‘B-1’; ‘B-2’), the fifty (50) aluminum foils each containing shabu (Exhs. ‘J-1’ to ‘J-50’) placed inside a pencilcase (Exh. ‘J’, the assorted coins placed inside a blue bag (Exh. ‘W’) and the white crystalline stone (Exh. ‘K’) all do not belong to him. He

said that the policemen just produced those things as their evidence. The firearms do not belong to him. They were brought by the policemen(tsn, p. 43, May 4, 1998). Regarding the blue bag containing assorted coins, he said: ‘ that is not ours, I think this (is) theirs, xxx they just brought that as their evidence ’ (tsn, pp. 15-24, id.)

“Walpan Ladjaalam declared there were occupants who were renting his extension house. He affirmed that he owns that house. Four (4) persons were staying in the extension house. He could only recognize the husband whose name is Momoy. They are from Jolo. They left the place already because they were afraid when the police raided the place. (tsn, pp. 8-10, May 4, 1998). He does not know prosecution witnessRino Locson y Bartolome. Although Locson recognized him, in his case he does not know Locson and he does not recognize him (tsn, p.11,id). He did not sell anything to Locson and did not entertain him. He is not selling shabu but he knows ‘ for a fact that there are plenty of

person who are engaged in selling shabu in that place ’, in that area known as Aplaya, Rio Hondo. One of them is Hadji Agbi (tsn, pp.11-14,id).

“After his arrest Walpan Ladjaalam was brought to the police station where he stayed for one day and one night before he was transferred tothe City jail. While at the police station, he was not able to take a bath. He smokes two packs of cigarette a day. While he was at the police

station, he smoked [a] cigarette given to him by his younger sister. He lighted the cigarettes with [a] match. From the police station, he was brought to the PNP Regional Office at R.T. Lim Boulevard where he was subject to paraffin examination (tsn, pp. 24-26, May 4, 1998).

“During the raid conducted on his house, his cousin Boy Ladjaalam, Ating Sapadi, and Jecar ( Sikkal ) Usman, the younger brother of his wifewere killed. Walpan Ladjaalam said that he saw that ‘ it was the policeman who shot them[,] only I do not know his name .” They were killed at the back of his house . He said that no charges were filed against the one responsible for their death (tsn, pp. 30-33- May 4, 1998).

“Anilhawa Ahamad, more or less 80 years old, a widow was in the house of Walpan Ladjaalam whom he calls ‘ Hadji Id ’ at the time the police raided the house.She is the mother of Ahma Sailabbi. She was together with Babo Dandan, two small children and a helper when‘ soldiers ’ entered the house. ‘ (W)hen they arrived, they kept on firing (their guns) even inside the house ’ (tsn, p.5, May 5, 1998). They werearmed with short and long firearms. They searched the house and scattered things and got what they wanted. They entered the room of Walpan Ladjaalam. They tried to open a bag containing jewelry. When Anilhawa tried to bring the bag outside the room, they grabbed the

bag from her and poked a gun at her. At that time Walpan Ladjaalam was not in the house. Ahamad Sailabbi was also not in the house. ASearch Warrant was shown to Anilhawa after the search was conducted and just before the policemen left the place. Anilhawa Ahamad said

that ‘ it was already late in the afternoon[;] before they left that was the time the Search Warrant (was) given to us by xxx Barangay Captain Hussin Elhano ’ (tsn, pp.6-8, May 5, 1998). Barangay Chairman Elhano arrived ‘ already late in the afternoon, almost sundown ’ (tsn, p. 9,id). Anilhaw declared that aside from a bag containing jewelry and a bag full of money, she had not seen anything else that was taken fromWalpan Ladjaalam’s house (tsn, pp. 9-12, id).

“Akmad (Ahmad) Sailabbi, 37 years old, married testified that about 4:00 o’clock [o]n the afternoon of September 24, 1997, ha was standingin front of his house when policemen arrived and immediately arrested him. He was about to go to the City Proper to buy articles he wasintending to bring to Sabah. He had ‘ around P50,000.00 ’ placed inside a waist bag tied around his waist. The policemen told him to lie downin prone position and a policeman searched his back. They pulled his waist bag and took his DiaStar wrist watch. He was shot three times andwas hit on the forehead leaving a scar. His injury was not treated. He was taken to the police station where he was detained for one day andone night. He was detained at the City Jail for three months and five days after which he was released (tsn, pp. 25-29, May 5, 1998).








“Melba Usma, 20 years old, a widow, testified that [o]n the afternoon of September 24, 1997, she was in the house of her parents lyingtogether with her husband Sikkal Usma. There is only one house between her parents’ house and the house of Walpan Ladjaalam. Her husband Sikkal Usman is the brother of Nur-in Ladjaalam, Walpan’s wife. When Melba heard shots, she went downstairs. A policeman waslooking for her husband. The policeman called her husband. When her husband went down, he was instructed by the policeman to lie down in

prone position. Then the policeman shot her husband. The policeman had two other companions who also shot her husband while he waslying down in prone position (tsn, pp.2-7, May 5, 1998).

“Murkisa Usman, 30 years old, married, declared that [o]n the afternoon of September 24, 1997, she was sitting at the door of her housewatching her children playing when a motorcyle, driven by a person, stopped near her house. The driver was Gaganting whom she called asoldier. He went down from his motorcycle, pulled a gun and poked it at Murkisa. Murkisa stood up and raised her hands. She got her children and when she was about to enter the room of her house, Gaganting again poked a gun at her and ‘ there was a shot .’ As a result of firing, three persons died, namely, Sikkal Usman, Boy Ladjaalam and Atip Sapali Sali (tsn, pp. 8-10, May 5, 1998).

“Barangay Captain Hadji Hussin Elhano, 51 years old, testified that about 4:00 o ‘clock [o]n the afternoon of September 24, 1997, he wasfetched by two policemen at Catabangan where he was attending a seminar. Because of traffic along the way, they arrived at the Rio Hondoalready late in the afternoon. He saw policemen were already inside the house. Upon entering the gate, he saw Walpan at the gate alreadyhandcuffed. Walpan called him but the police advised him not to approach Walpan. The search was already over and things were alreadytaken inside the house. When he went inside the house, he saw ‘ the things that they (policemen) searched, the firearms and the shabu ‘ (tsn, p.17. May 8, 1998). He did not see the Search Warrant. What was shown to him were the things recovered during the search which were beinglisted. They were being counted and placed on a table. ‘ Upon seeing the things that were recovered during the search, I just signed thereceipt (Exh. “P”; “P-1”) of the things x x x taken during the search” (tsn, pp. 17-18. May 8, 1998) . He saw three dead bodies at the side of

the fence when he went to the other side of the house. The three persons were killed outside the fence of Walpan Ladjaalam (tsn, p. 18,id).” [16]

The Trial Court’s Ruling

The trial court observed that the house of appellant was raided on September 24, 1997 by virtue of Search Warrant No. 20 issued on the sameday. However, the lower court nullified the said Warrant because it had been issued for more than one specific offense, [17] in violation of Section 3, Rule 126 of the Rules of Court .[18] The court a quo ruled:

“It should be stated at the outset that Search Warrant No. 20 is totally ‘ null and void ’ because it was issued for more than one specific offensex x x contrary to Section 3, Rule 1[2]6 of the Rules of Court which provides that ‘ A search warrant shall not issue but upon probablecause in connection with one specific offense xxx ’ . In Tambasan vs. People, 246 SCRA 184 (1995), the Supreme Court ruled that a searchwarrant for more than one offense - a ‘scatter shot warrant’ - violates Section 3, Rule 126 of the [R]evised Rules of Court and is ‘totally nulland void.’” [19] (emphasis in the original)

Nevertheless, the trial court deemed appellant’s arrest as valid. It emphasized that he had shot at the officers who were trying to serve the voidsearch warrant. This fact was established by the testimonies of several police officers, [20] who were participants in the raid, and confirmed bythe laboratory report on the paraffin tests conducted on the firearms and appellant .[21] Additionally, the judge noted that Appellant Ladjaalam,

based on his statements in his Counter Affidavit, impliedly contradicted his assertions in open court that there had been no exchange of gunfire during the raid .[22] The trial court concluded that the testimonies of these officers must prevail over appellant’s narration that he wasnot in his house when the raid was conducted.

Prescinding from this point, the court a quo validated the arrest of appellant, reasoning thus:

“Under the circumstances, the policemen ‘ had authority to pursue and arrest Walpan Ladjaalam and confiscate the firearm he used in shooting at the policemen and to enter his house to effect said arrest and confiscation of the firearm. ’ Under Rule 113, Section 5 (a), of the

Rules of Court, ‘ A peace officer or a private person may, without a warrant, arrest a person xxx (w)hen in his presence, the person to bearrested has committed, is actually committing, or is attempting to commit an offense. ’ An offense is committed in the presence or within theview of an officer, within the meaning of the rule authorizing an arrest without a warrant, when the officer sees the offense, although at adistance, or hears the disturbances created thereby and proceeds at once to the scene thereof. At the time the policemen entered the house of accused Walpan Ladjaalam after he had fired shots at the policemen who intended to serve the Search Warrant to him, the accused wasengaged in the commission of a crime, and was pursued and arrested after he committed the crime of shooting at the policemen who wereabout to serve the Search Warrant.” [23]

As a consequence of the legal arrest, the seizure of the following was also deemed valid: the M14 rifle (with a magazine containing seventeenlive ammunition) [24] used by appellant against the police elements, two M14 magazines, and three other M16 rifle magazines .[25] The trial courtobserved that these items were in “plain view” of the pursuing police officers. Moreover, it added that these same items were “evidence [of]the commission of a crime and/or contraband and therefore, subject to seizure” [26] since appellant “had not applied for a license to possessfirearm and had not been given authority to carry firearm outside his residence.” [27]

For being incredible and unsupported by evidence, appellant’s claim that the items that were seized by the police officers had been plantedwas disbelieved by the trial court. It ruled that if the police officers wanted to plant evidence to incriminate him, they could have done soduring the previous raids or those conducted after his arrest. To its mind, it was unbelievable that they would choose to plant evidence, whenthey were accompanied by the barangay chairman and a radio reporter who might testify against them. It then dismissed these allegations,saying that frame-up, like alibi, was an inherently weak defense. [28]

The trial court also convicted the accused of the crime of maintaining a drug den. It reasoned as follows:

“The testimony of Rino Bartolome Locson, corroborated by SPO1 Ricardo Lacastesantos and SPO1 Amado Mirasol, Jr. clearly establishedthat Walpan Ladjaalam operated and maintained a drug den in his extension house where shabu or methamphetamine hydrochloride, aregulated drug, was sold, and where persons or customers bought and used shabu or methamphetamine hydrochloride by burning the saidregulated drug and sniffing its smoke with the use of an aluminum foil tooter. A drug den is a lair or hideaway where prohibited or regulateddrugs are used in any form or are found. Its existence [may be] proved not only by direct evidence but may also be established by proof of facts and circumstances, including evidence of the general reputation of the house, or its general reputation among police officers. The





































uncorroborated testimony of accused Walpan Ladjaalam a.k.a. Warpan’ that he did not maintain an extension house or a room where drugusers who allegedly buy shabu from him inhales or smokes shabu cannot prevail over the testimonies of Locson, SPO1 Lacastesantos, andSPO1 Mirasol. He admitted that he is the owner of the extension house but he alleged that there were four (4) occupants who rented thatextension house. He knew the name of only one of the four occupants who are allegedly from Jolo, a certain Momoy, the husband. Asidefrom being uncorroborated, Walpan’s testimony was not elaborated by evidence as to when or for how long was the extension house rented,the amount of rental paid, or by any other document showing that the extension house was in fact rented.The defense of denial put up byaccused Walpan Ladjaalam a.k.a. 'Warpan’ is a weak defense. Denial is the weakest defense and cannot prevail over the positive and

categorical testimonies of the prosecution witnesses. Denials, if unsubstantiated by clear and convincing evidence, are negative and self-serving evidence which deserve no weight in law and cannot be given evidentiary weight over the testimony of credible witnesses who testifyon affirmative matters. As between the positive declaration of the prosecution witnesses and the negative statements of the accused, theformer deserve more credence.” [29]

In conclusion, the trial court explained appellant’s liability in this manner:

“x x x. The act of the accused in firing an M14 rifle to the policemen who were about to enter his house to serve a search warrant constitutesthe crime of direct assault with multiple attempted homicide[,] not multiple attempted murder with direct assault[,] considering that no

policeman was hit and injured by the accused and no circumstance was proved to qualify the attempted killing to attempted murder.

“The accused Walpan Ladjaalam a.k.a. ‘Warpan’ cannot be held liable [for] the crime of Violation of Section 16, Article III, in relation toSection 21, Article IV, of Republic Act 6425 otherwise known as the Dangerous Drugs Act of 1992, as amended, because the fifty (50) piecesof folded aluminum foils having a total weight of 1.7426 grams all containing methamphetamine hydrochloride or shabu allegedly found in

his house are inadmissible as evidence against him considering that they were seized after [a] search conducted by virtue of Search Warrant No. 20 which is totally null and void as it was issued for more than one offense, and were not found in ‘plain view’ of the police officers whoseized them. Neither could the accused be held liable for illegal possession of firearms and ammunition except for the (1) M14 rifle withSerial Number 1555225 and with magazine containing fifteen (15) live ammunition and two more M14 rifle magazines with twenty (20) andtwenty-one (21) live ammunition respectively considering that the policemen who recovered or seized the other firearms and ammunition didnot testify in court. The blue bag containing assorted coins cannot be returned to the accused Walpan Ladjaalam a.k.a. ‘Warpan’ becauseaccording to the accused the blue bag and assorted coins do not belong to him[;] instead the said assorted coins should be turned over to the

National Treasury.” [30]

The Issues

In his Brief, appellant submits the following Assignment of Errors:

I

“The trial court erred when it concluded that appellant Walpan Ladjaalam y Mihajil [had] fired first at the police officers who went to hishouse to serve a search warrant upon him which led to an exchange of fire between Ladjaalam and the police officer.

II

“The trial court erred when it denied the appellant the right and opportunity for an ocular inspection of the scene of the firefight and where thehouse of the appellant [was] located.

III

“The trial court erred when it ruled that the presumption of regularity in the performance of their duties [excluded] the claim of the appellantthat the firearms and methamphetamine hydrochloride (i.e. shabu) were planted by the police.” [31]

In the interest of simplicity, we shall take up these issues seriatim : (a) denial of the request for ocular inspection, (b) credibility of the prosecution witnesses, and (c) the defense of frame-up. In addition, we shall also discuss the proper crimes and penalties to be imposed onappellant.

The Court’s Ruling

The appeal has no merit.

First Issue: Denial of Request for Ocular Inspection

Appellant insists that the trial court erred in denying his request for an ocular inspection of the Ladjaalam residence. He argues that an ocular inspection would have afforded the lower court “a better perspective and an idea with respect to the scene of the crime.” [32] We do not agree.

We fail to see the need for an ocular inspection in this case, especially in the light of the clear testimonies of the prosecution witnesses. [33]Wenote in particular that the defense had even requested SPO1 Amado Mirasol Jr. to sketch the subject premises to give the lower court a fairlygood idea of appellant’s house. [34] Viewing the site of the raid would have only delayed the proceedings .[35] Moreover, the question whether toview the setting of a relevant event has long been recognized to be within the discretion of the trial judge. [36] Here, there is no reason to disturbthe exercise of that discretion .[37]
























Second Issue:Credibility of Prosecution Witnesses

Appellant, in essence, questions the credibility of the prosecution witnesses. [38] Suffice it to state that the trial court’s assessment of their credibility is generally accorded respect, even finality . [39] After carefully examining the records and finding no material inconsistencies tosupport appellant’s claim, we cannot exempt this case from the general rule . [40] Quite the contrary, the testimonies of these witnesses

positively showed that appellant had fired upon the approaching police elements, and that he had subsequently attempted to escape. SPO1

Amado Mirasol Jr.[41]

testified thus:“PROSECUTOR NUVAL:

Q: And, this trail is towards the front of the house of the accused?

A: Yes.

Q: And it’s there where you were met by a volley of fire?

A: Yes, Your Honor.

COURT:

Q: How far were you from the concrete fen[c]e when you were met by a volley of f ire? ... You said you were fired upon?

A: More or less, five (5) meters.

x x x x x x x x x

PROSECUTOR NUVAL:

Q: Now, you said you were able to enter the house after the gate was opened by your colleague Felipe Gaganting ... I will reform thatquestion.

Q: Who opened the gate Mr. Witness?

A: SPO2 Felipe Gaganting, Efren Gregorio and Allan Marcos Obut.

Q: And, at that time you were hiding at the concrete fence?

A: Yes.

Q: Now, when this gate was opened, you said you went inside the house, right?

A: Yes.

Q: What did you see inside the house?

A: I, together with SPO1 Ricardo Lacastesantos, entered the main door of the house of Walfran [sic] Ladjaalam at the ground floor. We wentinside the sala on the ground floor of his house[;] I saw two old woman.

x x x x x x x x x

PROSECUTOR NUVAL:

Q: Now, what did you do with these two old women?

A: I did not mind those two old women because those two women were sitting on the ground floor. I was concentrating on the second floor because Ladjaalam was firing towards our group so, I, together with Ricardo Lacastesantos, went upstairs to the second floor of the house.

Q: Were you able to go to the second floor of the house?

A: Yes.

Q: What happened when you were already on the second floor?

A: While we were proceeding to the second floor, Walfan [sic] Ladjaalam, noticed our presence and immediately went inside the bedroom[o]n the second floor and he went immediately and jumped from the window of his house x x x leading to the roof of the neighbor’s house.

x x x x x x x x x

COURT:

Reform. That is leading

Q: What happened when you entered and he jumped to the roofing of the neighbor’s house?

A: Immediately, I myself, we immediately went downstairs and asked the assistance of the members of the raiding team to arrest Walfan

Ladjaalam.

x x x x x x x x x

PROSECUTOR NUVAL:

Q: Were you able to go down?

A: Yes.

Q: What happened when you were there?

A: We immediately went out and I asked the assistance of the members of the raiding team and the investigator of the unit especially SPO1Cesar Rabuya. I was able to manage to arrest Walfan Ladjaalam.” [42]

















What happened thereafter was narrated by Senior Police Officer Ricardo Lacastesantos, [43] as follows:

“Q: What did you notice [o]n the second floor?

A: I went where the firing came from, so, I saw [an] M14 rifle and I shouted from the outside, ‘do not fire at the second floor because there[are] a lot of children here.’

Q: Now, that rifle you said [was an] M14, where did you find this?

A: At the sala set.

Q: This sala set where is this located?

A: Located [on] the second floor of the house.

Q: Is there a sala [o]n the second floor?

A: Yes.

Q: Can you still identify that M14 rifle which you said you recovered from the sale set?

A: Yes.

Q: Why can you identify that?

A: The Serial No. of M14 is 1555225 and I marked it with my initial.

Q: Now, I have here M14 rifle[;] will you please tell us where is the Serial No. of this?

A: 1555225 and I put my initial, RJL.

FISCAL NUVAL:

This is already marked as our Exhibit ‘B-3’ with magazine, one magazine and seven round [ammunition].

Q: After recovering this, what did you do with this firearm?

A: When I recovered it I removed the bullets inside the chamber[.] I removed the magazine and I turned it over to the investigator.

Q: Where did you turn it over?

A: At the crime scene.

Q: Now, that magazine, can you still identify this?A: Yes.

Q: Why?

A: I put x x x markings.

x x x x x x x x x

COURT:

So, a[si]de from the magazine attached to the M14 rifle you found six more magazines?

A: Yes, so, all in all six magazines, three empty M16 rifle magazines and three M14.

Q: The M16 magazines [were] empty?

A: Empty.

Q: How about the M14?

A: Found with [ammunition].

x x x x x x x x x

Q: So, where are the three M16 magazines?

A: In the corner.

Q: What did you do with [these] three magazines of M16?

A: I turned [them] over to the investigator.

Q: Can you identify them?

A: Yes, because of my initials[.]

Q: Where are your initials?

A: On the magazines.

Q: RJL?

A: RJL.” [44]

These were confirmed by the results of the paraffin tests conducted on appellant and on the weapons seized during the raid. Both of his handsas well as the weapons, particularly the M-14 which he had used, were positive for gunpowder nitrate. Police Inspector Mercedes Delfin-Diestro explained in open court:








“Q: Okay. Now, what was the result of your examination, Madam Witness?

A: The result of the examination [was] that both hands of the subject person, ha[d] presence of gun powder nitrates.

Q: What do you mean Madam Witness, what does that indicate?

A: It indicates there is presence of powder nitrates.

Q: Can we conclude that he fired a gun?

A: I cannot conclude that he fired a gun because there are so many circumstances [why] a person [would be] positive on his hands for gun powder nitrates.

Q: But, most likely, he fired a gun?

A: Yes.

x x x x x x x x x

PROSECUTOR NUVAL:

Q: What about, Madam Witness this Exhibit ‘B-3’, which is the M14 rifle. What did you do with this?

A: SPO3 Abu did the swabbing both in the chamber and the barrel wherein I observed there [were] black and traces of brown residue on the bolt, chamber and in the barrel.

Q: And, that indicates Madam Witness...?

A: It indicates that the gun was fired.

Q: Recently?

A: Because of the traces of brown residue, it could be possible that the gun was fired before the incident x x x.

COURT:

Q: There is also black residue?

A: Yes.

Q: What does it indicate?

A: It indicates that the firearm was recently fired.

Q: And, where is this swab used at the time of the swabbing of this Exhibit?

A: This one.

PROSECUTOR NUVAL:

May we ask that this be marked as Exhibit ‘B-3-A’.

COURT:

Q: The firing there indicates that the gun was recently fired, during the incident?

A: Yes.

Q: And also before the incident it was fired because of the brown residue?

A: Yes, Your Honor.”[45]

(emphasis supplied)Duly proven from the foregoing were the two elements [46] of the crime of illegal possession of firearms. Undoubtedly, the established fact thatappellant had fired an M-14 rifle upon the approaching police officers clearly showed the existence of the firearm or weapon and his

possession thereof. Sufficing to satisfy the second element was the prosecution’s Certification [47] stating that he had not filed any applicationfor license to possess a firearm, and that he had not been given authority to carry any outside his residence. [48] Further, it should be pointed outthat his possession and use of an M-14 rifle were obviously unauthorized because this weapon could not be licensed in favor of, or carried by,a private individual .[49]

Third Issue: Defense of Frame-up

From the convoluted arguments strewn before us by appellant, we gather that the main defense he raises is frame-up. He claims that the itemsseized from his house were “planted,” and that the entire Zamboanga police force was out to get him at all cost.

This Court has invariably held that the defense of frame-up is inherently weak, since it is easy to fabricate, but terribly difficult to disprove.[50]Absent any showing of an improper motive on the part of the police officers ,[51] coupled with the presumption of regularity in the

performance of their duty, such defense cannot be given much credence .[52] Indeed, after examining the records of this case, we conclude thatappellant has failed to substantiate his claim. On the contrary, his statements in his Counter Affidavit are inconsistent with his testimonyduring the trial. [53] He testified thus:

“Q Now, Mr. Witness, do you remember having executed an Affidavit/ a Counter-Affidavit?

A I could not remember.

Q I have here a Counter-Affidavit and it was signed before this representation on the 8th day of December 1997[;] tell us whose signature isthis appearing above the typewritten name




























FISCAL NUVAL:

Q . . . . Walpan Ladjaalam, whose signature is this?

(Showing)

A Yes, Sir. This is mine.

Q Now, in paragraph[s] 1,2,3,4,5,6,7 and 8; you stated in this Counter-Affidavit which I quote: ‘that I was resting and sleeping when I heardthe gunshots and I noticed that the shots were directed towards our house.. and I inspected and x x x we were attacked by armed persons.. andI was apprehended by the persons who attacked x x x our house’; [the] house you are referring to [in] this paragraph, whose house [are you]referring to, is this [what] you are referring to [as] your house or the house of your neighbors [from] which you said you heard gunshots?

A Our house.

Q Now, in paragraph 6 of your Counter-Affidavit you stated and I quote: ‘that [o]n that afternoon of September 24, 1997, I was at home inmy house Aplaya, Riohondo, Bo. Campo Muslim, my companions in my house [were] the two old women and my children, is this correct?

A They were not there.

Q Now, in that statement Mr. Witness, you said that you were at home in [your] house at Aplaya, Riohondo, Bo. Campo Muslim[;] which iswhich now, you were in your house or you were in your neighbors[‘] house at that time when you heard gunshots?

A I was in the house near my house.

Q So, your statement particularly paragraph 6 of your Counter-Affidavit that you were at home in [your] house at Aplaya Riohondo Bo.Campo Muslim, is x x x not correct?

A Yes, Sir. This is not correct.” [54]

Crime and Punishment

The trial court convicted appellant of three crimes: (1) maintenance of a drug den, (2) direct assault with attempted homicide, and (3) illegal possession of firearms. We will discuss each of these.

Maintenance of a Drug Den

We agree with the trial court that appellant was guilty of maintenance of a drug den, an offense for which he was correctly sentencedtoreclusion perpetua . His guilt was clearly established by the testimony of Prosecution Witness Rino Bartolome Locson, who himself hadused the extension house of appellant as a drug den on several occasions, including the time of the raid. The former’s testimony wascorroborated by all the raiding police officers who testified before the court. That appellant did not deny ownership of the house and itsextension lent credence to the prosecution’s story.

Direct Assault with Multiple Attempted Homicide

The trial court was also correct in convicting appellant of direct assault [55] with multiple counts of attempted homicide. It found that “[t]he act

of the accused [of] firing an M14 rifle [at] the policemen[,] who were about to enter his house to serve a search warrant x x x” constitutedsuch complex crime. [56]

We note that direct assault with the use of a weapon carries the penalty of prision correccional in its medium and maximum periods, whileattempted homicide carries the penalty of prision correccional .[57] Hence, for the present complex crime, the penalty for direct assault, whichconstitutes the “most serious crime,” should be imposed and applied in its maximum period .[58]

Illegal Possession of Firearms

Aside from finding appellant guilty of direct assault with multiple attempted homicide, the trial court convicted him also of the separateoffense of illegal possession of firearms under PD 1866, as amended by RA 8294, and sentenced him to 6 years of prision correccional to 8years of prision mayor .

The Office of the Solicitor General (OSG) disagrees, on the ground that the trial court should not have applied the new law. It contends thatunder the facts of the case, the applicable law should have been PD 1866, as worded prior to its amendment by RA 8294.

The trial court’s ruling and the OSG’s submission exemplify the legal community’s difficulty in grappling with the changes brought about byRA 8294. Hence, before us now are opposing views on how to interpret Section 1 of the new law, which provides as follows:

“SECTION 1. Section 1 of Presidential Decree No. 1866, as amended, is hereby further amended to read as follows:

“Section 1. Unlawful Manufacture, Sale, Acquisition, Disposition or Possession of Firearms or Ammunition Instruments Used or Intended tobe Used in the Manufacture of Firearms or Ammunition. -- The penalty of prision correccional in its maximum period and a fine of not lessthan Fifteen thousand pesos (P15,000) shall be imposed upon any person who shall unlawfully manufacture, deal in, acquire, dispose, or

possess any low powered firearm, such as rimfire handgun, .380 or .32 and other firearm of similar firepower, part of firearm, ammunition, or

















machinery, tool or instrument used or intended to be used in the manufacture of any firearm or ammunition: Provided, That no other crimewas committed.

“The penalty of prision mayor in its minimum period and a fine of Thirty thousand pesos (P30,000) shall be imposed if the firearm isclassified as high powered firearm which includes those with bores bigger in diameter than .30 caliber and 9 millimeter such as caliber .40, .41, .44, .45 and also lesser calibered firearms but considered powerful such as caliber .357 and caliber .22 centerfire magnum and other firearms with firing capability of full automatic and by burst of two or three: Provided, however, That no other crime was committed by the

person arrested.

“If homicide or murder is committed with the use of an unlicensed firearm, such use of an unlicensed firearm shall be considered as anaggravating circumstance.

“If the violation of this Section is in furtherance of or incident to, or in connection with the crime of rebellion or insurrection, sedition, or attempted coup d’etat, such violation shall be absorbed as an element of the crime of rebellion or insurrection, sedition, or attempted coupd’etat.

“The same penalty shall be imposed upon the owner, president, manager, director or other responsible officer of any public or private firm,company, corporation or entity, who shall willfully or knowingly allow any of the firearms owned by such firm, company, corporation or entity to be used by any person or persons found guilty of violating the provisions of the preceding paragraphs or willfully or knowinglyallow any of them to use unlicensed firearms or firearms without any legal authority to be carried outside of their residence in the course of their employment.

“The penalty of arresto mayor shall be imposed upon any person who shall carry any licensed firearm outside his residence without legalauthority therefor.”

Citing People v. Jayson, [59] the OSG argues that the foregoing provision does not cover the specific facts of this case. Since another crime --direct assault with multiple unlawful homicide -- was committed, appellant cannot be convicted of simple illegal possession of firearms under the second paragraph of the aforecited provision. Furthermore, since there was no killing in this case, illegal possession cannot be deemed asan aggravating circumstance under the third paragraph of the provision. Based on these premises, the OSG concludes that the applicable lawis not RA 8294, but PD 1866 which, as worded prior the new law, penalizes simple illegal possession of firearms even if another crime iscommitted at the same time. [60]

Applying a different interpretation, the trial court posits that appellant should be convicted of illegal possession of firearms, in addition todirect assault with multiple attempted homicide. It did not explain its ruling, however. Considering that it could not have been ignorant of the proviso [61] in the second paragraph, it seemed to have construed “no other crime” as referring only to homicide and murder, in both of

which illegal possession of firearms is an aggravating circumstance. In other words, if a crime other than murder or homicide is committed, a person may still be convicted of illegal possession of firearms. In this case, the other crime committed was direct assault with multipleattempted homicide; hence, the trial court found appellant guilty of illegal possession of firearms.

We cannot accept either of these interpretations because they ignore the plain language of the statute. A simple reading thereof shows that if an unlicensed firearm is used in the commission of any crime, there can be no separate offense of simple illegal possession of firearms. Hence, if the “other crime” is murder or homicide, illegal possession of firearms becomes merely an aggravating circumstance, not aseparate offense.Since direct assault with multiple attempted homicide was committed in this case, appellant can no longer be held liable for illegal possession of firearms.

Moreover, penal laws are construed liberally in favor of the accused. [62] In this case, the plain meaning of RA 8294’s simple language is mostfavorable to herein appellant. Verily, no other interpretation is justified, for the language of the new law demonstrates the legislative intent tofavor the accused .[63] Accordingly, appellant cannot be convicted of two separate offenses of illegal possession of firearms and direct assaultwith attempted homicide. Moreover, since the crime committed was direct assault and not homicide or murder, illegal possession of firearmscannot be deemed an aggravating circumstance.

We reject the OSG’s contention that PD 1866, as worded prior to its amendment by RA 8294, should be applied in this case. When the crimewas committed on September 24, 1997, the original language of PD 1866 had already been expressly superseded by RA 8294 which took effect on July 6, 1997. [64] In other words, no longer in existence was the earlier provision of PD 1866, which justified a conviction for illegal

possession of firearms separate from any other crime. It was replaced by RA 8294 which, among other amendments to PD 1866, containedthe specific proviso that “no other crime was committed.”

Furthermore, the OSG’s reliance on People v. Jayson [65] is misplaced. True, this Court sustained the conviction of appellant for illegal possession of firearms, although he had also committed homicide. We explained, however, that “the criminal case for homicide [was] not before us for consideration.”

Just as unacceptable is the interpretation of the trial court. We find no justification for limiting the proviso in the second paragraph to murder and homicide. The law is clear: the accused can be convicted of simple illegal possession of firearms, provided that “no other crime wascommitted by the person arrested.” If the intention of the law in the second paragraph were to refer only to homicide and murder, it shouldhave expressly said so, as it did in the third paragraph. Verily, where the law does not distinguish, neither should we.

The Court is aware that this ruling effectively exonerates appellant of illegal possession of an M-14 rifle, an offense which normally carries a penalty heavier than that for direct assault. While the penalty for the first is prision mayor , for the second it is only prisioncorreccional . Indeed, the accused may evade conviction for illegal possession of firearms by using such weapons in committing an evenlighter offense, [66] like alarm and scandal [67] or slight physical injuries, [68] both of which are punishable by arresto menor .[69] This consequence,however, necessarily arises from the language of RA 8294, whose wisdom is not subject to the Court’s review. Any perception that the resultreached here appears unwise should be addressed to Congress. Indeed, the Court has no discretion to give statutes a new meaning detachedfrom the manifest intendment and language of the legislature. Our task is constitutionally confined only to applying the law and

jurisprudence [70] to the proven facts, and we have done so in this case.

WHEREFORE, the appealed Decision is hereby AFFIRMED with the MODIFICATION that appellant is found guilty only of twooffenses: (1) direct assault and multiple attempted homicide with the use of a weapon, for which he is sentenced to 2 years and 4 months to 6years of prision correccional ; and (2) maintaining a drug den, for which he was correctly sentenced by the trial court to reclusion

perpetua . Costs against appellant.






































Let a copy of this Decision be furnished the Congress of the Philippines for a possible review, at its sound discretion, of RA 8294.

6) G.R. No. 129069 October 17, 2001

PEOPLE OF THE PHILIPPINES, appellee,vs.JULIO RECTO y ROBEA,appellant.

Treachery cannot be appreciated to qualify a killing to murder, if the accused has not deliberately sought to attack the vulnerability of thevictim. In the present case, the latter evidently had the opportunity to escape or to defend himself, but chose not to grab the opportunity;instead, he placed himself in a position more open to attack.

The Case

For automatic review by this Court is the Decision 1 dated April 2, 1997, promulgated by the Regional Trial Court (RTC) of Romblon (Branch81), which found Julio Recto y Robea guilty beyond reasonable doubt of (1) two counts of the complex crime of qualified direct assault withfrustrated homicide ( Criminal Case Nos. 1970 and 1971), (2) the complex crime of qualified direct assault with murder (Criminal Case No.1972), and (3) homicide (Criminal Case No. 1973). The decretal portion of the RTC Decision reads follows:

"WHEREFORE, in Criminal Case No. 1970, this Court finds accused JULIO RECTO GUILTY beyond reasonable doubt of the complexcrime of qualified [d]irect [a]ssault [w]ith [f]rustrated [h]omicide and hereby sentences him to suffer the indeterminate penalty of from eight(8) years and one (1) day of prision mayor , as minimum, to ten (10) years and one (1) day of prision mayor , as maximum, with the accessory

penalties of the law, and to pay the costs.

"In Criminal Case No. 1971, this Court finds accused JULIO RECTO GUILTY beyond reasonable doubt of the complex crime of qualified[d]irect [a]ssault [w]ith [f]rustrated [h]omicide and hereby sentences him to suffer the indeterminate penalty of from eight (8) years and one(1) day of prision mayor , as minimum, to ten (10) years and one (1) day of prision mayor , as maximum, with the accessory penalties of thelaw, and to pay the costs.

"In Criminal Case No. 1972, this Court finds co-accused JULIO RECTO GUILTY beyond reasonable doubt of the complex crime of qualified [d]irect [a]ssault [w]ith [m]urder and hereby sentences him to suffer the supreme penalty of DEATH. He is ordered to pay the heirsof the victim ANTONIO MACALIPAY the sum of P50,000.00 as indemnity for his death, without subsidiary imprisonment in case of insolvency, and to pay the costs.

xxx xxx xxx

"In Criminal Case No. 1973, this Court finds co-accused JULIO RECTO GUILTY beyond reasonable doubt of the crime of [h]omicide andhereby sentences him to suffer the indeterminate penalty of from eight (8) years and one (1) day of prision mayor , as minimum, to thirteen(13) years, nine (9) months and ten (10) days of reclusion temporal , as maximum, with the accessory penalties of the law, and he is ordered to

pay the heirs of the victim EMILIANO 'RENATO' SANTOS, alias REY, the sum of P50,000.00 as indemnity for his death. withoutsubsidiary imprisonment in case of insolvency, and to pay the costs.

xxx xxx xxx

"The 'pugakang' or homemade shotgun with one (1) live ammunition (Exh. C); twelve (12) gauge live ammunition (Exh. C-1); the revolver

together with the three (3) live bullets and two (2) empty shells (Exhs. D, D-1 to D-5, respectively) are confiscated in favor of thegovernment.

"After the judgment shall have become final, the [o]fficer-in-[c]harge, Office of the Clerk of Court, this Court, is ordered to deliver anddeposit all the foregoing exhibits to the [p]rovincial [d]irector, PNP, of the Province of Romblon properly receipted. Thereafter, the receiptmust be attached to any of the records of these cases and shall form part of these records.

"The period of preventive imprisonment both accused had undergone shall be credited in their favor to its full extent and the penalties hereinimposed shall be served successively in accordance with Articles 29 and 70, respectively, of the Revised Penal Code, as amended." 2

On September 22, 1994, four (4) Informations, 3 all signed by State Prosecutor II Felix R. Rocero, were filed against appellant. The fifthInformation was dated October 18, 1994.

The Informations in Criminal Case Nos. 1970 and 1971 charged appellant with direct assault with frustrated murder, as follows:

Criminal Case No. 1970

"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, didthen and there, by means of treachery, wilfully, unlawfully and feloniously attack, assault, and shoot with a shotgun locally called 'pugakang'one MELCHOR RECTO, knowing that the latter is a duly appointed [b]arangay [c]hief [t]anod of Ambulong, Magdiwang, Romblon, whilehe was engaged in the performance of his official duties, inflicting upon the latter gunshot wounds in different parts of his body, thus

performing all the acts of execution which should produce the felony of murder as a consequence, but nevertheless, did not produce it byreason of causes independent of the will of the accused and that is by the timely and able medical assistance rendered to the victim which

prevented his death." 4



Criminal Case No. 1971

"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, didthen and there, by means of treachery, wilfully, unlawfully and feloniously attack, assault, and shoot with a shotgun locally called 'pugakang'one Barangay Captain PERCIVAL ORBE, knowing that the latter is a duly elected barangay captain of Ambulong, Magdiwang, Romblon,while he was engaged in the performance of his official duties, inflicting upon the latter gunshot wounds in different parts of his body, thus

performing all the acts of execution which should produce the felony of murder as a consequence, but nevertheless, did not produce it byreason of causes independent of the will of the accused and that is by the timely and able medical assistance rendered to the victim which

prevented his death." 5

The Information 6 in Criminal Case No. 1972, which charged appellant with direct assault with murder, was worded thus:

"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this [H]onorable Court, the said accused with intent to kill,conspiring, confederating and mutually helping each other, did then and there, by means of treachery, wilfully, unlawfully and feloniouslyattack, assault and shoot with a shotgun locally called 'pugakang' and strike with a long bolo, one ANTONIO MACALIPAY, knowing thatthe latter is a duly elected [b]arangay [k]agawad of Ambulong, Magdiwang, Romblon, while he was engaged in the performance of hisofficial duties, inflicting upon the latter mortal wounds in different parts of his body which were the cause of his untimely death." 7

In the Information 8 in Criminal Case No. 1973, appellant was charged with murder, as indicated hereunder:

"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon. Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, didthen and there, by means of treachery, wilfully, unlawfully and feloniously attack, assault and shoot with a shotgun locally called 'pugakang'and strike with a long bolo, one EMILIANO 'RENATO' SANTOS 9 , alias EMY, inflicting upon the latter mortal injuries in different parts of his body which were the direct and immediate cause of his death." 10

Finally, appellant was charged with illegal possession of firearm and ammunition in the Information in Criminal Case No. 1975, which wequote:

"That on or about the 18th day of April 1994, at around 5:00 o'clock in the afternoon, in [B]arangay Ambulong, [M]unicipality of Magdiwang, [P]rovince of Romblon, Philippines, and within the jurisdiction of this Honorable Court, the said accused, with intent to kill, didthen and there wilfully, unlawfully and feloniously have in his possession and under his custody and control, one (1) handgun locally called

'pugakang' with one live ammunition, which he used in killing Barangay Kagawad Antonio Macalipay and Emiliano 'Renato' Santos and[which was] confiscated by the police authorities." 11

When arraigned on all the five charges on November 24, 1994, appellant, with the assistance of his counsel, 12 pleaded "not guilty." 13 In duecourse, he was tried and, thereafter, sentenced.

The FactsVersion of the Prosecution

The Office of Solicitor General summarized the evidence for the prosecution in this wise: 14

"In the early afternoon of April 18, 1994 at Ambulong, Magdiwang, Sibuyan Island, Romblon, Barangay Captain Percival Orbe was in hisresidence together with Barangay Kagawad Antonio Macalipay and Barangay Tanod Melchor Recto, appellant's cousin. They were trying tosettle a land dispute involving Linda Rance and Cornelio Regis, Jr. While the meeting was in progress, Orbe was summoned by SPO4Fortunato Rafol to proceed to the bodega of Rance.

"There, they noticed that the padlock of the bodega was destroyed, and the palay stored therein, stolen. Forthwith, Barangay KagawadMacalipay, who happened to be the chairman of the Barangay Agrarian Reform Committee (BARC), conducted an investigation.

"SPO4 Rafol and SPO1 Male, also made their investigation and reported their findings to Linda Rance. At this point, Barangay TanodMelchor Recto passed by. He saw SPO4 Rafol, Wilfredo Arce, [S]pouses Crestito and Linda Rance at the bodega. He went to BarangayCaptain Orbe and inquired why they were there. Barangay Captain Orbe told him that the padlock of the bodega was destroyed and the palay,stolen. Orbe requested Melchor Recto to stay as he might be needed. Thereupon, Barangay Tanod Melchor Recto began his own ocular investigation.

"While SPO4 Rafol and SPO1 Male were leaving the premises, the group of [A]ppellant Julio Recto, Cornelio Regis, Jr., Dante Regis, Melvar Relox, Teodoro de la Serna, Enrica Regis and Nida Regis arrived. The group stopped at the first ' trampa ' near the bodega. Barangay Captain

Orbe advised them not to create trouble, but, Dante Regis pulled a piece of wood and threw it towards them. Thereafter, [A]ppellant Recto,while holding a balisong or fan knife, approached Barangay Captain Orbe. The latter responded by telling the former to surrender the balisong . Appellant stepped backward, opened his jacket and pulled out a gun, a de sabog. Upon seeing the gun, Barangay Captain Orberetreated, while Barangay Kagawad Antonio Macalipay stepped forward with both arms raised and uttered the words: 'Do not do it. We'll justsettle this. ( Ayoson ta lang ine ).' Julio Recto, however, immediately pulled the trigger, hitting Barangay Kagawad Macalipay, causing him tofall down on the ground. Then Cornelio Regis, Jr. approached the fallen Macalipay and flipped his bolo at the latter who rolled and fell intothe rice paddy.

"Melchor Recto saw the shooting from his hiding place behind a concrete pillar. He then ran inside the old dilapidated bathroom of the bodega. Barangay Captain Orbe also followed. Inside the bathroom, Melchor Recto peeped through the window and saw [A]ppellant Rectofire his gun at Emilio Santos. Santos also fired his revolver at appellant and later, turned around and crawled. While crawling, Santos firedanother shot towards Regis, Jr[.], but, the latter was able to reach and hack the former with a bolo.



"Amidst the din, Percival Orbe and Melchor Recto heard [A]ppellant Julio Recto saying: 'Where is that kapitan ?' When Melchor could nolonger see Julio Recto, he jumped out of the bathroom window and ran. While running, Julio Recto shot him hitting the latter's thigh.Barangay Captain Orbe also got out of the bathroom through the top and landed [o]nto the ricefield. Before he could take a step, he was alsoshot by [A]ppellant Julio Recto at his right elbow, but was still able to continue running and cross the southern portion of the ricefield. Hecaught up with the wounded Melchor Recto and both went their separate ways. On the other hand, both Barangay Kagawad AntonioMacalipay and Emiliano 'Renato' Santos died due to multiple wounds inflicted on them by herein appellant." (citations omitted)

Version of the Defense

On the other hand, the trial court presented appellant's version of the incident, as follows: 15

"x x x Julio Recto interposed self-defense and defense of his co-accused Cornelio Regis, Jr. . . . According to co-accused Julio Recto theywere berated at about 12 meters away from the bodega and it was there that the late Emiliano Santos shot co-accused Cornelio Regis, Jr. andhe was hit and he (Julio) retreated two (2) steps backward. Then, he took two (2) steps forward and said why are you like that. Alberto Rance,the son of Mrs. Linda Rance, shot him, hitting him on his left side. He ran towards Alberto Rance who shot him with the latter behind theconcrete porch holding his gun with his two (2) hands resting on the concrete wall (porch) of the bodega, and with Emiliano Santos alsoholding his gun [which] he used in shooting Regis, Jr. The distance between Alberto Rance and the unarmed Julio Recto was 11½ meterswhen x x x Julio Recto r[a]n towards Alberto Rance[;] the latter ran and he saw Wilfredo Arce [turn] and [pick] up a gun and he grabbed thegun and while pulling it, it fired and he did not know whether it hit somebody. Emiliano Santos incredibly was no longer there to shoot him.However, Julio Recto was able to take possession of this gun from Wilfredo Arce, took cover behind a post and still managed to shoot Santoswho was somewhere else. He threw the gun later on the disputed land and ran to the direction of the banana plantation of Regis, Jr. and he

reached his house. Both of them were outside the house of Regis, Jr. x x x when [M]aritime [P]oliceman Morada and Galin arrived. x x x"(citations omitted, underscoring in original)

Ruling of the Trial Court

The trial court found that appellant had fired at a barangay tanod, Melchor Recto, who was at the crime scene "on the occasion of the performance of his official duties." 16 It added that appellant had shot a barangay captain, Percival Orbe, also "on the occasion of the performance of his official duties." 17

The lower court ruled out treachery in the killing of Emiliano Santos, because there had been a gun duel between him and appellant.However, it convicted and sentenced appellant to death for the murder of Antonio Macalipay.

Because of the trial court's imposition of the death penalty, this review by the Supreme Court is mandatory and automatic, without need of a

notice of appeal.18

Assignment of Errors

In his Brief, appellant faults the court a quo with the following alleged errors: 19

I

"The lower court erred in finding the accused-appellant guilty of direct assault in Criminal Case Nos. 1970 and 1972 which accordinglyresulted in his being convicted of complex crimes in those cases.

II

"The lower court erred in finding the presence of the qualifying circumstance of treachery in Criminal Case No. 1972 which accordinglyresulted in his being convicted of murder in that case."

In the interest of justice and despite appellant's anemic Brief, we deem it wise to review the entire assailed Decision, particularly the crimesimputed and the penalties imposed by the trial court.

The Court's Ruling

The Decision of the trial court should be MODIFIED.

Self-Defense and Defense of a Relative

Appellant contends that he committed the crimes attributed to him in self-defense and in defense of his uncle, Cornelio Regis Jr.

By invoking self-defense and defense of a relative, appellant plainly admits that he killed Antonio Macalipay and Emiliano "Renato" Santosand fired the shots that injured Melchor Recto and Percival Orbe. Thus, appellant has shifted the burden of evidence to himself.Consequently, to escape criminal liability, he must prove, by clear and convincing evidence, the existence of the essential requisites of self-defense; namely, (1) unlawful aggression on the part of the victim, (2) reasonable necessity of the means employed to prevent or repel it, and(3) lack of sufficient provocation on the part of the person resorting to self-defense. 20 For defense of a relative 21 to prosper, appellant must

prove the concurrence of the first and the second requisites of self-defense and "the further requisite, in case the provocation was given by the person attacked, that the one making the defense had no part therein." 22

Appellant miserably failed to discharge this burden. In fact, he was clearly the aggressor. Without unlawful aggression on the part of thevictim, there can be no viable self-defense or defense of a relative. 23



"There is unlawful aggression when the peril to one's life, limb or right is either actual or imminent. There must be actual force or actual useof weapon." 24 In this case, Antonio Macalipay was unarmed and actually trying to pacify appellant when the latter shot him. After shootingAntonio, appellant again cocked his gun, pointed it at Emiliano Santos and shot him. The latter's act of drawing his gun and firing at him wasmerely self-defense.

As for Melchor Recto and Percival Orbe, no aggression ever emanated from them during the entire incident. They were unarmed and in factalready running away from appellant when he shot them. Clearly, there was no unlawful aggression from any of the victims.

For purposes of clarity and simplicity, we deem it wise to discuss separately the crimes attributed to appellant and the proper penaltiesimposed by the trial court.

Crime and Punishment

The trial court convicted appellant of four (4) crimes: two counts of the complex crime of qualified direct assault with frustrated homicide,one count of the complex crime of qualified direct assault with murder , and one count of homicide. We will now discuss each of these crimes.

Qualified Direct Assault with Frustrated Homicide

(Criminal Case Nos. 1970 and 1971 )

In these two cases, appellant claims that he "did not mind" the two victims because they were not his enemies. He, however, testified thatthe de sabog gun had merely misfired and hit them. The court a quo was correct in not giving credence to his attempt to paint the victim'sinjuries as the result of an accident. Evidence to be believed must be credible in itself. 25 His weak and incredible testimony cannot prevailover the positive and categorical testimonies of the prosecution witnesses stating that he deliberately shot them.

However, the trial court erred in convicting appellant of qualified direct assault with frustrated homicide.

Direct assault, a crime against public order, may be committed in two ways: first , by "any person or persons who, without a public uprising,shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;"and second , by any person or persons who, without a public uprising, "shall attack, employ force, or seriously intimidate or resist any personin authority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance." 26 The first mode istantamount to rebellion or sedition, without the element of public uprising. The second mode, on the other hand, is the more common form of assault, and is aggravated when: (a) the assault is committed with a weapon, or (b) when the offender is a public officer or employee, or (c)when the offender lays a hand upon a person in authority. 27

An agent of a person in authority is "any person who, by direct provision of law or by election or by appointment by competent authority, ischarged with the maintenance of public order and the protection and security of life and property, such as barrio councilman, barrio policemanand barangay leader, and any person who comes to the aid of persons in authority." 28 In the case at bar, the victim, Melchor Recto 29 — beingthen the barangay chief tanod of Ambulong, Magdiwang, Romblon — was clearly an agent of a person in authority. However, contrary to thefindings of the trial court, he was not "engaged in the performance of his official duties" at the time he was shot. Neither was he attacked "onthe occasion of such performance," as we will now show.

It must be emphasized that Melchor Recto was on his way home when he happened to pass by the bodega of the Rance couple. He testified asfollows:

"PROSECUTOR MORTEL:

Q: On April 18, 1994 at around 4:00 o'clock in the afternoon, you said you were in the ricefield gathering the harvested palay[;] whattime did you leave that place?

A: Nearing 5:00 o'clock already.

Q: And in going to your house, do you remember if you ha[d] to pass by the bodega of Rance?

ATTY. MONTOJO:

Leading, Your Honor.

COURT:

Leading.

PROSECUTOR MORTEL continuing:

Q: Now, did you go to your house that afternoon?

A: No, sir.

Q: Why?

A: Because when I pass[ed] in the bodega there were plenty of people.



Q: Whose bodega are you referring to?

A: Rance.

Q: Do you know the name of the owner?

A: Yes, sir.

Q: Please give us the name?

A: First owned by Jose Rance now owned by Crestito and Linda Rance.

Q: What relation has this Crestito Rance to Jose Rance?

A: Jose is the father of Crestito Rance.

Q: And this Linda, what relation has she with Crestito Rance?

A: Wife.

Q: You said, that when you passed by the bodega on your way to your house there were people in that bodega, please give us [the]names of the people thereat whom you know?

A: SPO4 Fortunato Rafol, SPO1 Male, Bgy. Captain Percival Orbe, Kag. Antonio Macalipay, Wilfredo Arce and Spouses Crestito andLinda Rance and those who were threshing palay thereat." 30

Melchor explained that when appellant's group arrived, it was Barangay Captain Percival Orbe and Kagawad Antonio Macalipay who talkedto the group. Melchor did not do anything to avert the tension. He only watched what was transpiring and later hid himself when the first shotwas fired. He continued:

"PROSECUTOR MORTEL continuing:

Q: Because of that, what did Orbe tell you as a barangay tanod?

ATTY. MONTOJO:

Leading, Your Honor.

COURT: Leading.


Q: What else did he say?

A: He told me not to leave because he might need me.

Q: And did you remain?

A: Yes, sir.

Q: As you were there, did you observe what [t]he policemen were doing?

A: I observed [them] going there and through around [sic] the bodega.

xxx xxx xxx

Q: Now later on, do you remember what the policemen did?

A: I observed that the policemen were already passing the rice paddies towards the road.

Q: And after they were gone . . . . By the way, who were these policemen whom you observed going towards the road, will you pleasename them?

A: SPO4 Fortunato Rafol and Male.

Q: Do you know the first name of SPO1 Male?

A: No sir.



Q: Now, after they were gone, do you remember if there were persons who arrived?

ATTY. MONTOJO:

Misleading

COURT:

Leading.

PROSECUTOR MORTEL (continuing):

Q: After they were gone, what happened?

A: I saw Cornelio Regis, Jr., Julio Recto, Melver Relox, Dante Regis, Teodoro dela Serna, Nida Regis, Enrica Regis. I saw these seven(7) passing through the rice paddies towards the bodega.

xxx xxx xxx


Q: Were these group of people able to reach the bodega?

A: No, sir.

Q: Why?

A: They stopped on the first trampa that they reached.

Q: And upon reaching that place, what happened?

A: Dante Regis thr[e]w a piece of wood.

Q: Going to what direction?

A: Towards the bodega.

Q: And when Dante Regis thr[e]w that piece of wood towards the direction of the bodega, what happened?

A: The barangay captain, Percival Orbe, approached them and told them not to do it.

Q: And what did you observe . . . . By the way, who was that barangay captain?

A: Orbe.

Q: And what did you observe when [B]arangay [C]aptain Orbe [told] them not to do it?

A: I observed that the group got angry so Percival Orbe retreated.

Q: And when Percival Orbe approached the group, did he have any companion?

A: Yes, sir.

Q: Who?

A: Kagawad Antonio Macalipay.

Q: And when Percival Orbe retreated, what did Antonio Macalipay do?

A: When the barangay captain retreated, Antonio Macalipay proceeded towards the group and stop[ped] at the second trampa comingfrom the bodega.

Q: Now, when you reached that place of the second trampa, what happened?

A: Julio Recto raised his jacket and pulled out a gun and pointed it to Antonio Macalipay.

INTERPRETER:



Witness standing and demonstrating.


Q: And when the gun was pointed to Kagawad Antonio Macalipay, what did Antonio Macalipay do?

A: He raised both hands.

INTERPRETER:

Witness demonstrating by raising his two (2) arms up with open palms as if in surrender, and said ['D]o not do it we will just settle this.[']


Q: And after Macalipay had said that, what happened?

A: Julio Recto shot him.

Q: And what happened to Macalipay after being shot?

A: Antonio Macalipay fell down backward.

INTERPRETER:

Witness demonstrating . . . fall[ing] backward.


Q: And when you saw Antonio Macalipay fall down backward, what did you do?

A: I hid behind a pil[l]ar?

xxx xxx xxx

Q: After hiding behind the pil[l]r, what did you do?

A: I ran towards an old broken down bathroom. . . . " 31

Thinking that appellant had already left the bodega , Melchor, while hiding inside the old bathroom for several minutes, decided to jump outof a broken down window 32 and ran towards the national road. 33

Clearly, from his arrival at the scene of the crime to his departure therefrom, Melchor was not engaged in the performance of his officialduties. Neither was he attacked on the occasion thereof.

This fact was corroborated further by the testimony of Linda Rance, who said that it was Orbe and Macalipay who had pacified appellant andhis six companions. She testified thus:

"PROSECUTOR VICTORIANO continuing:

Q: While they were discussing, what happened?

A: When they were discussing, Dante Regis thr[e]w a piece of wood.

Q: To what direction was that piece of wood thr[own] by Dante Regis?

A: Going towards our group.

Q: And how is this Dante Regis related to Cornelio Regis Jr.?

A: He is the son of Cornelio Regis, Jr.

Q: When that piece of wood was thrown towards your direction, was somebody hit?

A: No, sir.

Q: Where did that piece of wood land?

A: In front of our bodega.



Q: Was there anything hit by that piece of wood?

A: No, sir.

Q: When that piece of wood was thrown, what followed next?

A: They were already agitated.

Q: Now, because of the agitation, what happened?

A: Bgy. Captain Orbe was trying to pacify them.

Q: What about Bgy. Kagawad Antonio Macalipay, what did he do?

A: He was trying to pacify but they would not be pacified.

Q: Now, when they refused to be pacified, what did Julio Recto do?

A: Julio Recto turned his way (witness turning to her left side) and open[ed] his jacket and drew a gun.

Q: When Julio Recto drew his gun, what did Antonio Macalipay do?

A: Antonio Macalipay said, ["L]et us settle this (witness raising . . . both [of her] hands) and do not do it. (at the same time raising . . . both [of her] hands as if in surrender[)"].

INTERPRETER:

Witness demonstrating.

PROSECUTOR VICTORIANO continuing:

Q: Now, [in] spite of what Barangay Kagawad Antonio Macalipay did, what happened?

A: Julio Recto shot him once." 34

Unquestionably, Melchor Recto was a barangay chief tanod ; however, at the crime scene he was a mere bystander. Apparently, he was notacting and had no occasion to act in the performance of his official duties that afternoon. Thus, the attack on him did not amount to directassault. 35

We now determine the criminal liability of appellant with respect to the attack. He shot Melchor only once, but the latter sustained fivegunshot entry wounds 36 all located at his backside, at the vicinity of his buttocks. Because the gun used by the former was a de sabog ,37 each

bullet contained several pellets inside. 38 In other words, a single shot from a de sabog results in the spewing of several pellets. The nature of the weapon used for the attack and the direction at which it was aimed — the victim's back — unmistakably showed appellant's intent to kill.

However, for reasons other than his own desistance, appellant was not able to perform all the acts of execution necessary to consummate thekilling, since the wounds he inflicted were not mortal. In United States v. Eduave ,39this Court has held that if the wounds would not normallycause death, then the last act necessary to produce homicide has not been performed by the offender. Thus, appellant's liability amounted onlyto attempted , not frustrated, homicide.

The penalty that is lower by two degrees 40 than that prescribed by law for consummated homicide shall be imposed upon appellant. After applying the Indeterminate Sentence Law, it shall be taken from the medium period, since there were no aggravating or mitigatingcircumstances proven.

In Criminal Case No. 1971, the trial court was correct in ruling that the attack on Percival Orbe — then a barangay captain, a person inauthority 41 — amounted to qualified direct assault, because he was attacked on the occasion of the performance of his duty. At the time, hewas attempting to pacify appellant and to keep the peace between the two groups.

A felony "is frustrated when the offender performs all the acts of execution which would produce the felony as a consequence but which,nevertheless, do not produce it by reason of causes independent of the will of the perpetrator." In this case, the nature of the weapon used byappellant unmistakably shows that he intended to kill Orbe. However, like the wounds inflicted by the accused on Melchor Recto, those onOrbe were not fatal.

As evidenced by the Medico-Legal Certificate 42 prepared by Dr. Ramon D. Villanueva of the Romblon Provincial Hospital and the testimonygiven by Dr. Giovannie C. Fondevilla of the same hospital, Orbe sustained several gunshot wounds in the vicinity of his right elbow. Thoseinjuries could not have caused his death. Moreover, according to Dr. Fondevilla, no surgical intervention was required; only medication wasgiven to him 43 to prevent any secondary infection from setting in. 44

Evidently, appellant had not yet been able to perform all the acts of execution necessary to bring about the death of Orbe, because the latter was able to run away after being fired at. Although appellant had already directly commenced the commission of a felony by overt acts(shooting Orbe with a de sabog ), he was not able to consummate that felony for some reason other than his spontaneous desistance. Thus, hecommitted attempted homicide.



Given these circumstances, appellant should therefore be convicted of the complex crime of qualified direct assault with attempted homicide.To be imposed therefor should be the penalty for the most serious crime — in this case qualified direct assault — the same to be imposed inits maximum period. 45 The Indeterminate Sentence Law should also be applied in this case.

Qualified Direct Assault with Murder

(Criminal Case No. 1972 )

In Criminal Case No. 1972, appellant does not question the finding of the trial court that he shot Antonio Macalipay. However, he submitsthat it erred in finding the presence of the qualifying circumstance of treachery. We agree.

First , the victim's companions outnumbered those of appellant. As shown by the pleadings and records of the case, his group consisted of seven individuals; the victims, sixteen. 46

Second , the heated confrontation on April 18, 1994 arose as a consequence of an earlier judgment 47 of the trial court in favor of appellant'sgroup. This case strained the relations of the parties who, after all, were related by blood and marriage. In fact, prior to this event, appellant —

believing that his uncle Cornelio Regis Jr. should get the landlord's share of the palay or rice harvest — attempted to harvest the fields thrice:(1) in October 1993; (2) in December 1993; and, (3) in March 1994. 48 All of these attempts failed, because Linda Rance hired a group of

bodyguards headed by the victim, Emiliano "Renato" Santos. 49 In short, the confrontation was not totally unexpected.

Third , both groups were armed. The exchange of gunfire was substantiated by the Medico-legal Certificates presented by both the prosecutionand the defense. 50 Moreover, the deceased Santos carried a gun which Alberto Rance, son of Crestito and Linda, had given him for his

protection. 51

Fourth , appellant's group asked the police station commander to assemble the workers of the disputed rice field on April 15, 1994 at theMunicipal Building of Magdiwang, Romblon, to inform them of the trial court's Decision awarding the land to Cornelio Regis Jr. For thisreason, the members of the group were to start collecting the landlord's share starting April 18, 1994. 52

Fifth , appellant was seen holding a balisong or fan knife during the heated confrontation, before he pulled out the shutgun and pointed it at theother group. 53 Macalipay, in a bold yet foolish attempt, stepped forward in front of appellant and told him: " Ayosan ta lang ini ?54 (No, don't,

because we will just settle this)." 55 And "[s]imultaneously with the last word in the phrase [']don't because we will just settle this,[']" 56 appellant fired his gun, killing the victim.

Evidently, the victim had all the opportunity to escape or defend himself from the aggression that was to ensue, yet chose not to grab theopportunity and instead placed himself in a position more open to attack. 57 Equally important, his vulnerable position had not beendeliberately sought by appellant. It was thrust on the latter by the former himself. In short, appellant did not deliberately choose the mode of attack to kill the victim with impunity and without risk to himself.

Jurisprudence teaches us:

"Treachery does not exist [when] the evidence does not show that appellant deliberately adopted a mode of attack intended to ensure thekilling of [the victim] with impunity, and without giving the victim an opportunity to defend himself. Further, the shooting took place after aheated exchange of words and a series of events that forewarned the victim of aggression from appellant. In this case, it appears to haveoccurred on sudden impulse but preceded by acts of appellant showing hostility and a heated temper that indicated an imminent attack and putthe deceased on guard. 58

"If the decision to kill was sudden, there is no treachery, even if the position of the victim was vulnerable, because it was not deliberately

sought by the accused, but was purely accidental.59

"When there is no evidence that the accused has, prior to the moment of the killing, resolved to commit the crime, or there is no proof that thedeath of the victim was the result of meditation, calculation or reflection, treachery cannot be considered." 60

Section 16 of Article 14 of the Revised Penal Code states that "there is treachery when the offender commits any of crimes against the person,employing means, methods, or forms in the execution thereof which tend directly and specially to insure its execution, without risk to himself arising from the defense which the offended party might make."

In this case, appellant was out in the open during the entire span of time from the heated discussion, to the brewing of the violence, and up tothe shooting of Macalipay. At the time, his every action, which indicated the imminence of more violence, was visible to them — to thevictim and the latter's companions. Appellant was actually vulnerable to any attack that they could have made at the time, had they chosen to.His mode of attack was therefore not without risk to himself. Absent treachery, the killing is homicide, not murder.

Considering that Antonio Macalipay was a kagawad who was in the actual performance of his duties when he was shot, the attack on himconstituted direct assault.

Applying the provisions of Articles 148 (direct assault), 249 (homicide) and 48 (penalty for complex crimes), appellant should be held liablefor the complex crime of qualified direct assault with homicide. The penalty to be imposed on him should be for homicide, which is the moreserious crime, to be imposed in the maximum period. This penalty shall comprise the maximum of his indeterminate sentence, and theminimum shall be within the range of the penalty next lower than that prescribed for homicide.

Homicide (Criminal Case No. 1973 )

We sustain appellant's conviction for homicide in Criminal Case No. 1973 because, in the words of the trial judge: "The late Emiliano Santoswas only beaten to the draw by co-accused Julio Recto). It was a gun duel between the two." 61 In his Brief, appellant hardly disputed this



holding. Neither do we. The maximum of the penalty imposed by the court a quo in this case was, however, taken from the minimum periodof the penalty for homicide. Considering that no mitigating or aggravating circumstances were proven, the maximum of the indeterminatesentence in this case should be taken from the medium period.

WHEREFORE, the Decision dated April 2, 1997, issued by the Regional Trial Court of Romblon, is hereby MODIFIED as follows:

First , in Criminal Case No. 1970, appellant is hereby CONVICTED of attempted homicide and sentenced to suffer imprisonment for anindeterminate penalty of four (4) months of arresto mayor as minimum, to four (4) years and two (2) months of prision correccional asmaximum.

Second , in Criminal Case No. 1971, appellant is hereby CONVICTED of the complex crime of qualified direct assault with attemptedhomicide and is hereby sentenced to suffer an indeterminate penalty, of six (6) months of arresto mayor as minimum, to six (6) yearsof prision correctional as maximum.

Third , in Criminal Case No. 1972, appellant is hereby CONVICTED of qualified direct assault with homicide aggravated by the use of aweapon and is sentenced to suffer an indeterminate penalty of twelve (12) years of prision mayor as minimum, to twenty (20) years of reclusion temporal as maximum. We AFFIRM the award of P50,000 as indemnity ex delicto .

Fourth , in Criminal Case No. 1973, the trial court's judgment convicting appellant of homicide and awarding to the victim's heirs anindemnity ex delicto of P50,000 is AFFIRMED; but the maximum of the penalty imposed is increased to fourteen (14) years, eight (8) months

and one (1) day of reclusion temporal .

All other portions of the trial court's disposition that were not modified in the above pronouncement are deemed AFFIRMED.

No pronouncement as to costs.

7) G.R. No. 138553 June 30, 2005

ENRIQUE "TOTOY" RIVERA Y DE GUZMAN,petitioner,vs.PEOPLE OF THE PHILIPPINES, respondent .

Assailed and sought to be set aside in this petition for review on certiorari are the October 16, 1998 decision 1 and April 5, 1999 resolution 2 of

the Court of Appeals in CA-G.R. CR No. 17284,which respectively affirmed in toto an earlier decision of the Regional Trial Court of LaTrinidad, Benguet convicting herein petitioner Enrique "Totoy" Rivera of the crime of direct assault, and denied petitioner’s motion for reconsideration.

On May 6, 1993, in the Regional Trial Court at La Trinidad, Benguet an information 3 for direct assault was filed against petitioner, allegedlycommitted, as follows:

That on or about the 20th day of March, 1993, at Tomay, Shilan, Municipality of La Trinidad, Province of Benguet, Philippines, and withinthe jurisdiction of this Honorable Court, the above-named accused, did then and there wilfully, unlawfully and feloniously attack, employforce and seriously resist one Lt. EDWARD M. LEYGO, knowing him to be a policeman, by then and there challenging the latter to afistfight and thereafter grappling and hitting the said policeman on his face, thus injuring him in the process while the latter was actuallyengaged in the performance of his official duties.

Contrary to law.

On arraignment, petitioner entered a plea of "Not Guilty." Thereafter, trial ensued.

To prove its case, the prosecution presented in evidence the testimonies of the victim himself, Lt. Edward Leygo, and the two allegedeyewitnesses to the incident, SPO1 Jose Bangcado and Brenda Dup-et. For its part, the defense presented the petitioner himself and oneAlfredo Castro.

As summarized by the trial court and adopted by the Court of Appeals in the decision herein assailed, the People’s version 4 is, as follows:

On March 20, 1993 at around 8:00 o’clock in the evening, Police Inspector Edward M. Leygo, Deputy Chief of Police for Operation andPatrol of the La Trinidad Police Station, La Trinidad, Benguet and SPO1 Joseph Basquial were conducting routinary patrol on board a policecar somewhere in Shilan, La Trinidad, Benguet when they came upon a truck unloading sacks of chicken dung at the stall of accused Enrique"Totoy" Rivera which was located along the Halsema Highway at Shilan, La Trinidad, Benguet. Inspector Leygo advised the driver to stop

unloading the manure as it violates La Trinidad Municipal Ordinance No. I-91 (Exhibit "C") which prohibits, among others, the loading andunloading of chicken manure along the sidewalks or road shoulders or within 15 meters from the center of the Halsema Highway located atLa Trinidad, Benguet. The driver complied with the police directive. The policemen then escorted the truck back to Poblacion, La Trinidad,Benguet and proceeded to the police headquarters.

Not long after, SPOI Jose Bangcado and SPOI Rivera Dayap, members of the La Trinidad Police under Inspector Leygo were conducting patrol aboard a police car somewhere at Km. 6, La Trinidad, Benguet when they observed a truck loaded with chicken dung proceedingtowards Shilan, La Trinidad, Benguet. Having in mind the instructions of La Trinidad Mayor Edna C. Tabanda and their Commanding Officer Inspector Leygo to Implement Ordinance No. I-91, the two policemen followed and stopped the truck at Cruz, La Trinidad, Benguet.Immediately they called Inspector Leygo on the radio and informed him that they stopped a truck carrying chicken dung. Inspector Leygoordered them to restrain the truck, as he would be proceeding to the area.















Knowing that the truck being restrained by the two policemen was the same truck which they had escorted earlier from Shilan, La Trinidad,Benguet, Inspector Leygo felt ignored and insulted. He immediately called SPO4 Justino Tiwtiwa, SPO1 Baldwin Ngolab and SPO1 JosephBasquial and the group sped to Cruz, La Trinidad, Benguet.

Meanwhile, back at Cruz, La Trinidad, Benguet, the accused arrived before the group of Inspector Leygo did and ordered the driver not toobey the policemen but instead obey him, as he (accused) was the boss. The truck driver followed the accused’s order and drove the truck towards Shilan, La Trinidad, Benguet with the accused following closely behind in his vehicle.

Inspector Leygo and his group arrived in time to see the truck pulling away and so they gave chase. The police were able to overtake and stopthe truck at Dengsi, Tomay, La Trinidad, Benguet. Inspector Leygo confronted the truck driver and asked him why he still insisted on

proceeding to Shilan to unload chicken manure despite the fact that he was ordered to go back earlier in the evening. The truck driver statedthat he was just following the orders of the accused. Immediately, Inspector Leygo turned around to see the accused who had at that timealighted from his vehicle behind the truck. Inspector Leygo asked the accused why he insisted on defying the ban on the unloading andloading of chicken manure. Instead of answering however, the accused pointed a finger on the policeman and uttered words like "Babaliankita ng buto" (I’ll break your bones). "Ilalampaso kita" (I’ll scrub you). "Pulis lang kayo" (you are only policemen) and other unsavory andinsulting words. Inspector Leygo who was a little bit angry warned the accused to stop uttering further insulting words and cautioned him totake it easy and then informed him that he was being arrested for violation of the chicken dung ordinance. The accused removed his jacket,

placed it inside the vehicle, assumed a fighting stance and challenged the policeman. Inspector Leygo then approached the accused andwarned him anew that he was being arrested. The accused responded by punching Inspector Leygo on his face, particularly on his lip. Thetwo then grappled as Inspector Leygo tried to hold the accused. Finally, with the help of Policemen Dayap and Bongcado, the accused wassubdued. The accused was then pushed into one of the police cars but he resisted until Alfredo Castro, one of the chicken dung dealers in the

area, boarded the police car to accompany him.

The accused was brought to the police headquarters where Inspector Leygo immediately called Mayor Tabanda who arrived at about 10:00o’clock that same evening. She confronted the two protagonists and at the same time admonished the accused for violating Ordinance No. I-91. Mayor Tabanda then accompanied the accused and Inspector Leygo to the Benguet General Hospital where both were examined by Dr.Antonio T. Carino. In the medico-legal certificate (Exhibit "A") of Inspector Leygo, his injury described as "contusion with 0.5 laceration,upper lip, left side" with healing period from 5 to 7 days. Subsequently, this present case was filed against the accused.

Reproduced from the same decision of the appellate court, the defense’s version 5 runs:

At about 8:00 o’clock in the evening of March 20, 1993, while the accused was at the Trading Post at Km. 5, La Trinidad, Benguet, the driver reported to him that he was prevented by the police from unloading chicken manure at Shilan, La Trinidad, Benguet. The accused remindedthe driver that he should have brought the chicken manure to Acop, Tublay, Benguet where dealers sell it when prevented from unloadingwithin the municipality of La Trinidad, Benguet. As it would be more expensive to return the chicken dung to Batangas where it came from,

the accused told the driver to bring the chicken dung to Acop, Tublay, Benguet. The driver expressed his fear that the police might stop himalong the way and so the accused ordered the driver to proceed and gave him the assurance that he (accused) would follow later.

The truck then proceeded as instructed and the accused following after a short while. Arriving at Cruz, La Trinidad, Benguet, the accusednoticed that the truck was stopped at the side of the road while a police vehicle and three policemen were across the road. Thinking that the

policemen were there trying to extort money from the driver, the accused told the truck driver to proceed. The truck driver complied and theaccused tailed along.

When the truck and the accused reached Dengsi, Tomay, La Trinidad, Benguet, he heard a police siren from behind. Immediately, a policevehicle overtook the truck, another police vehicle was running along side the accused’s vehicle and a third police vehicle was right behindthem. Thus, the truck and the accused had no recourse but to stop.

Inspector Leygo alighted from one of the police vehicles and angrily uttered so many words at the accused. The policeman then held thecollar of accused’s jacket and forced the latter to get out of his vehicle while shouting "Ang tigas ng ulo mo. Sige, bumunot ka." (You arevery stubborn. Go ahead, draw your gun.) The accused explained that he had no gun to draw while removing his jacket and raising his handsto show that there was no gun on his body. Inspector Leygo then held the left hand of the accused and tried to put handcuffs on him. Theaccused tried to resist, pleading that he had no fault and at the same time asking what infraction of law he committed. Inspector Leygoanswered by uttering insulting words and pointing his left forefinger on the accused’s face while his right hand was poking a gun on theaccused. The accused noticed that the policeman smelled of liquor.

A crowd started to gather around the scene. Sensing that the onlookers were on his side, the accused stated that he was going to get his camerainside his vehicle. As he was opening the door, Inspector Leygo suddenly slapped and boxed him in the stomach causing the accused to feeldizzy. This assault weakened him and so he did not resist when the police pushed him inside the police vehicle. Inspector Leygo then orderedhis men to bring the accused to the police headquarters. The accused recognized Alfredo Castro among the onlookers and because he(accused) knew him to be one of the chicken dung dealers, asked him (Castro) to accompany him to the police headquarters for fear thatsomething might happen.

At the police station, the accused suggested that Inspector Leygo should undergo medical examination to determine if the policeman was positive of alcoholic breath. The accused, however, was examined ahead and was issued a medical certificate (Exhibit "4") which describedhis injury as "erythema, lip left side face" and "contusion-midepigastric area". The healing period is from 3 to 5 days. With him sustainingthis injury, the accused now wonders why this charge was filed against him.

After weighing the parties’ respective versions of the incident, the trial court found that of the People more credible. Accordingly, in itsdecision of April 22, 1994, 6 it convicted petitioner of the crime of direct assault and sentenced him, thus:

WHEREFORE, the guilt of the accused having been proven beyond reasonable doubt, the Court hereby renders judgment finding the accusedEnrique "Totoy" Rivera GUILTY and sentences him to suffer an indeterminate penalty of Four (4) Months and One (1) Day of arrestomayor as MINIMUM to One (1) Year, One (1) Month and Eleven (11) Days of prision correccional as MAXIMUM. He is likewise ordered to

pay a fine of FIVE HUNDRED PESOS (P500.00) and to pay the costs.








SO ORDERED.

With his motion for reconsideration having been denied by the trial court, petitioner then went on appeal to the Court of Appeals whereat hisrecourse was docketed as CA-G.R. CR No. 17284.

As stated at the outset hereof, the appellate court, in its decision 7 of October 16, 1998, affirmed in toto that of the trial court, to wit:

WHEREFORE, premises considered the decision appealed from is hereby affirmed in toto .

SO ORDERED,

and denied petitioner’s motion for reconsideration in its resolution of April 5, 1999 .8

Hence, this petition for review on certiorari , submitting for our consideration the principal issue of whether or not the Court of Appeals erredin affirming the judgment of conviction rendered by the trial court.

We AFFIRM.

Direct assault, a crime against public order, may be committed in two ways: first , by any person or persons who, without a public uprising,

shall employ force or intimidation for the attainment of any of the purposes enumerated in defining the crimes of rebellion and sedition;and second , by any person or persons who, without a public uprising, shall attack, employ force, or seriously intimidate or resist any person inauthority or any of his agents, while engaged in the performance of official duties, or on occasion of such performance .9

Unquestionably, petitioner’s case falls under the second mode, which is the more common form of assault and is aggravated when: (a) theassault is committed with a weapon; or (b) when the offender is a public officer or employee; or (c) when the offender lays hand upon a

person in authority .10

In this recourse, petitioner argues that the appellate court, like the trial court, erred in finding the testimony of complainant Lt. Leygo as clear and convincing. In an attempt to impugn the latter’s credibility, petitioner contends that Lt. Leygo was mumbling while giving his testimony,adding that the latter failed to identify which of his (petitioner) hands was used and the precise distance between them when he punched the

police lieutenant.

Admittedly, the record shows that the trial judge had to call Lt. Leygo’s attention for testifying in such a low voice while on the witness box.Evidently, however, this did not prevent the trial court into believing his testimony and from according it full faith and credit. As it is, thewitness was able to narrate and communicate the events that transpired. Both the trial court and the Court of Appeals found the witness tohave clearly and adequately recounted how the incident happened, and we find no valid reason to discredit the truth and veracity of hisnarration. We quote:

Q Now, you said that Mr. Rivera faced you, when he faced you after he removed his jacket what did you do?

A He positioned himself in a fighting stance, sir.

Q What do you mean "in the fighting stance"?

A He raised his fist. (Witness raised his hands with his clenched fist in front of him).

Q How about you, what did you do when Mr. Rivera did that?

A I informed him that I am arresting him.

Q How far were you when he faced you at first?

A At first before I went near him is about 6 feet, sir.

Q Now, you said you approached him, is that correct?

A Yes, sir.

Q What did you do when you approached him?

A I told him that I am arresting him, sir.

Q And what was his response?

A He punched me at my face, sir.

Q You said he punched you, with what hand did Mr. Rivera punch you?

A I think it is his left hand, sir .11


















Nor is Lt. Leygo’s credibility any less diminished by the circumstance that he failed to categorically identify which of petitioner’s hands wasused in punching him, and the exact distance between them at that time. In all likelihood, this police officer was not expecting a physicalattack by the petitioner as he was just confronting the latter about the prohibited unloading of chicken dung when petitioner laid hand on him.Under this scenario, any person, like Lt. Leygo, cannot be expected to remember every single detail of the incident with perfect recall. 12 For sure, far from adversely affecting Lt. Leygo’s credibility, his failure to recall every minute detail of what transpired even fortifies it. We havethus held that the failure of a witness to recall each and every detail of an occurrence may even serve to strengthen rather than weaken hiscredibility because it erases any suspicion of a coached or rehearsed testimony. 13 What is vital in Lt. Leygo’s testimony is the fact that

petitioner punched him on his face, about which he was steadfast and unflinching.

In any event, this Court has said time and again that the assessment of the credibility of witnesses and their testimonies is best undertaken bythe trial court, what with reality that it has the opportunity to observe the witnesses first-hand and to note their demeanor, conduct, andattitude while testifying. Its findings on such matters, absent, as here, of any arbitrariness or oversight of facts or circumstances of weight andsubstance, are final and conclusive upon this Court and will not to be disturbed on appeal .14

Petitioner also asserts that the testimonies of prosecution witnesses SPO1 Jose Bangcado and Brenda Dup-et did not corroborate Lt. Leygo’stestimony. For, while SPO1 Bangcado merely testified during direct examination that petitioner punched Lt. Leygo, this witness failed toreiterate said testimony during cross-examination. As regards prosecution witness Brenda Dup-et, petitioner alleged that this witness never testified that petitioner boxed Lt. Leygo.

The imputed shortcomings in the testimonies of said two (2) prosecution witnesses are not of their own making. A witness is supposed toconfine his answers only to questions propounded of him. Here, the defense counsel focused his line of questioning on what the two

protagonists were doing immediately prior to the punching incident, and the answer correctly received by counsel was that both petitioner andLeygo were pushing each other. There is no showing that counsel asked the witness as to what happened after the pushing incident, as whatthe public prosecutor did of SPO1 Bangcado during the latter’s direct examination, to wit:

PROS. BOTENGAN:

Q And what happened when they faced each other?

A Totoy Rivera was shouting at Lt. Leygo, sir.

Q What was he shouting?

A "Bakit ninyo ako tinutugis, hindi ako criminal. Magbabayad kayo rito. Hindi ninyo ako kaya, pulis lang kayo." And some other words but I

cannot remember them all, sir.

Q What else, if any, did he say?

COURT:

He said he cannot remember the other words.

WITNESS:

There is one thing more, sir. "Ilalampaso kita. Babalian kita ng buto." And others, sir.

PROS. BOTENGAN:

Q To whom was Mr. Rivera saying this?

A To Lt. Leygo, sir.

Q What was Mr. Rivera doing when he said these?

A He was pointing to the face of Lt. Leygo and they are becoming closer and closer with each other, sir.

Q At that time, what was Lt. Leygo doing?

A What I saw was they were pushing to one another and after that Totoy Rivera boxed Lt. Leygo, sir.

Q You said they were pushing one another, what part of their body were they holding?

A At the breast, sir.

Q So each one was holding each other’s breast, is that what you mean?

A Yes, sir.

Q How long did they push each other?











A Seven to ten seconds, sir.

Q And was Lt. Leygo saying anything?

A He was trying to arrest Totoy Rivera, sir.

Q You said that he was trying to arrest Totoy Rivera, did you hear him if he says anything?

A He was convincing Totoy Rivera to go to the Municipal Hall, sir.

Q You said Totoy Rivera boxed Lt. Leygo, what part of the body of Lt. Leygo was hit?

A His face, sir.

Q What part of his face?

A Here, sir. (Witness referring to his lower lip. Witness is holding his lower lip).

Q What happened when Lt. Leygo was hit?

A He ordered us to arrest Totoy Rivera, so were able to subdue Totoy Rivera and placed him in the car, sir. 15

But even assuming, in gratia argumente , that Lt. Leygo’s testimony was not corroborated by the two (2) other prosecution witnesses duringtheir cross-examinations, still the day cannot be saved for the petitioner. Well-settled is the rule in this jurisdiction that the testimony of asingle witness, if straightforward and categorical, is sufficient to convict. After all, witnesses are weighed, not numbered, and evidence areassessed in terms of quality, not quantity. It is not uncommon, then, to reach a conclusion of guilt on the basis of the testimony of a lonewitness. Corroborative evidence is deemed necessary only when there are reasons to warrant the suspicion that the witness falsified the truthor that his observations had been inaccurate. 16 Unfortunately for the petitioner, the trial court found nothing to indicate that Lt. Leygo falsifiedthe truth or that his observations had been inaccurate.

Petitioner theorizes that he could not have hit Lt. Leygo, what with the circumstance that his co-policemen were present at the scene of theincident, and he finds it unusual that none of them retaliated if he really hit Lt. Leygo.

We are not persuaded. The evidence on record clearly bears out that it was Lt. Leygo who was attacked by petitioner, not the other wayaround, as petitioner would want us to believe. Both the witnesses for the prosecution and the defense are one in saying that it was only

petitioner who was in confrontation with Lt. Leygo. Evidently, petitioner’s anger started to burst when the truck driver reported to him that Lt.Leygo prohibited the unloading of the chicken dung and ordered him to return, such that when the same delivery truck was again intercepted

by Lt. Leygo’s group, petitioner’s anger was too much for him to contain. We quote with approval what the trial court has said in its decision:

The accused, however, denies that he ever laid hands on the cop. But the bigger question is, how then did the policeman sustain his injuries?It is highly improbable, if not absurd, for the policeman to inflict it on himself. It is also very unlikely that his co-policemen would punch him

just to make it appear that the accused did it. The accused admits of being at the place. He admits having been confronted by the policeman but he denies that he ever lifted a finger against the policeman. Yet all the witnesses both for the prosecution and the defense are in accord insaying that it was only the accused who was in confrontation with the policeman. The only logical conclusion that can be derived from this isthat it is indeed the accused who punched the policeman. Evidence to be believed must not only proceed from the mouth of the crediblewitness but it must be credible in itself. No better test has yet been found to measure the value of the testimony of a witness than itsconformity to the knowledge and common experience of mankind (People vs. Maspil, Jr., 186 SCRA 751). 1awphi1.zw+

That the other police officers did not retaliate is no basis for us to share petitioner’s submission that Lt. Leygo was the aggressor. In the natureof things, they naturally reacted the way they should, i.e. placed petitioner under arrest when ordered by Lt. Leygo.

Petitioner next contends that Lt. Leygo was not in the performance of his official duties as a police officer and as Deputy Chief of Police for Operation and Patrol at the time he was attacked.

Again, We disagree.

It is a matter of record that at the time of the assault, Lt. Leygo was engaged in the actual performance of his official duties. He was wearingthe designated police uniform and was on board a police car conducting a routinary patrol when he first came upon the truck unloadingchicken manure. Because the unloading of chicken dung was a violation of La Trinidad Municipal Ordinance No. 1-91, the lieutenant orderedthe truck driver to return from where he came, but petitioner, in defiance of such lawful order, commanded the truck driver to return to Shilan,

the place where the truck was first intercepted, and on being informed that the same truck had returned, the lieutenant had every reason toassume it did return for the purpose of unloading its cargo of chicken dung, thus stopped it from doing so.

Under the circumstances, it simply defies reason to argue that Lt. Leygo was not in the performance of his lawful duties as a police officer when the assault upon him was perpetrated by the petitioner.

Nor are we impressed by petitioner’s submission that the prosecution’s failure to present the doctor, who examined Lt. Leygo, proveddisastrous to the People’s case, arguing that the alleged injury of Lt. Leygo cannot be proved without the testimony of the attending physician.

That Dr. Antonio T. Carino did not testify on the medical certificate he issued is of no moment. If ever, the medical certificate is onlycorroborative in character and is not an indispensable element of the crime of direct assault filed against petitioner. The unequivocal piece of evidence against petitioner is no less Lt. Leygo’s credible and consistent testimony that he was punched on his face by the petitioner.








Lastly, petitioner puts the Court of Appeals to task for sustaining the trial court’s observation that he exuded an aura of arrogance anddefiance of authorities.

We have consistently ruled that the trial court judge is in the best of position to see and observe the demeanor, actuation and countenance of awitness, matters which are not normally expressed in the transcripts of his testimony. We see no reason, therefore, to disturb the followingobservations of the trial court in its decision:

The demeanor of the accused on the witness stand also shows that he is the kind who is impatient with authority. His manner of answeringquestions bespeaks of one who has trouble abiding with authority. He portrayed a very aggressive manner and his answers were always on thedefensive as if he had every right in this world to do and say whatever he wanted to. Over all, he exuded an aura of arrogance and defiance of authority.

In closing, let it be noted that the attention of this Court has not been called to of any ulterior or improper motive on the part of the prosecution witnesses to falsely testify against petitioner. Absence such a motive, the presumption is that they were not so moved, and their testimonies are entitled to full faith and credit .17

WHEREFORE, the petition is hereby DENIED, and the assailed decision and resolution of the Court of Appeals AFFIRMED in toto .

Costs against petitioner.

Art 177 – Usurpation of authority or official functions

8) G.R. NO. 154098 July 27, 2005

JOSE C. MIRANDA,Petitioners,vs.HON. SANDIGANBAYAN, OFFICE OF THE OMBUDSMAN, SEC. JOSE D. LINA, in his capacity as Secretary of the DILG,* and FAUSTINO DY, JR. in his capacity as Governor of the Province of Isabela, Respondents.

First, the facts.

The Ombudsman placed petitioner Jose C. Miranda (Mayor Miranda) then the mayor of Santiago City, Isabela, under preventive suspensionfor six months from 25 July 1997 to 25 January 1998 for alleged violations of Republic Act No. 6713, otherwise known as the Code of Conduct and Ethical Standards for Public Officials and Employees. 1 Subsequently, then Vice Mayor Amelita S. Navarro (Vice Mayor

Navarro) filed a Complaint with the Office of the Ombudsman (Ombudsman) on 1 December 1997 which was docketed as OMB-1-97-2312 .2 In the said Complaint, Vice Mayor Navarro alleged that Mayor Miranda committed the following acts on 24 November 1997 despitethe continuing effectivity of the Ombudsman’s preventive suspension order: (a) issued a memorandum addressed to Navarro advising her thathe was assuming his position as City Mayor ;3 (b) gave directives to the heads of offices and other employees; 4 (c) issued Office Order No. 11-021 which authorized certain persons to start work ;5 and (d) insisted on performing the functions and duties of Mayor despite Navarrro’srequests to desist from doing so without a valid court order and in spite of the order of Department of Interior and Local Government (DILG)Undersecretary Manuel Sanchez directing him to cease from reassuming the position. 6Vice Mayor Navarro contended that Mayor Mirandacommitted the felony of usurpation of authority or official functions under Article 177 of the Revised Penal Code (RPC). 7

In his counter-affidavit, Mayor Miranda asserted that he reassumed office on the advice of his lawyer and in good faith. 8 He contended thatunder Section 63(b) of the Local Government Code, local elective officials could not be preventively suspended for a period beyond 60days. 9 He also averred that, on the day he reassumed office, he received a memorandum from DILG Undersecretary Manuel Sanchezinstructing him to vacate his office and he immediately complied with the same. 10 Notably, Mayor Miranda’s counter-affidavit also stated thathe left the mayoralty post after "coercion" by the Philippine National Police .11

On 28 October 1998, the Ombudsman filed with the Sandiganbayan an Information against Mayor Miranda for violation of Article 177 of theRPC, penalizing usurpation of authority. On 20 November 1998, the Sandiganbayan ordered the Office of Special Prosecutor to conduct areinvestigation of the case in light of the manifestations made by prosecution and defense counsel. 12 After reinvestigation, Special ProsecutionOfficer Rodrigo V. Coquia (Coquia) recommended the dismissal of the case in a Resolution dated 14 September 2000 .13 Coquia held thatMiranda reassumed his office in "good faith" and on "mistake of fact" due to the "difficult questions of law" involved .14

Then Ombudsman Aniano A. Desierto (Ombudsman Desierto) referred Coquia’s resolution to the Ombudsman’s Chief Legal Counsel for review. The Chief Legal Counsel disagreed with Coquia’s findings and recommended the filing of the case against Mayor Miranda. 15 He

pointed out that Mayor Miranda’s invocation of good faith was belied by the fact that he received a memorandum from the DILG informinghim that his view of the preventive suspension period was untenable and that he should serve out its remaining period. 16 He further noted thatMiranda violated the orders of both the Ombudsman and the DILG. 17 Ombudsman Desierto adopted the Chief Legal Counsel’srecommendation, 18 and the case was re-raffled to Special Prosecution Officer Evelyn T. Lucero. Subsequently, the prosecution filed anamended Information with the Sandiganbayan,19 to which the petitioner interposed a negative plea.20

On 28 November 2001, the prosecution filed before the Sandiganbayan a motion to suspend Mayor Miranda pendente lite based onSection 13 of Republic Act No. 3019 (R.A. No. 3019), otherwise known as the Anti-Graft and Corrupt Practices Act.21 Mirandaopposed the motion on the ground that the offense of usurpation of authority or official functions under Article 177 of the RPC is notembraced by Section 13 of R.A. No. 3019 which only contemplates offenses enumerated under R.A. No. 3019, Title VII, Book II of the RPCor which involve "fraud upon government or public funds or property." 22

In a Resolution dated 4 February 2002, the Sandiganbayan preventively suspended Mayor Miranda from office for 90 days.23 Theanti-graft court held that a violation of Article 177 of the RPC involves fraud "which in a general sense is deemed to comprise anythingcalculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justlyreposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another." 24 It further ruled thatMiranda’s act fell within the catch-all provision "x x x or for any offense involving fraud upon government." 25 Miranda’s motion for reconsideration was denied in the Sandiganbayan’s Resolution dated 17 June 2002 .26 Hence, the present petition assailing the



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Sandiganbayan’s orders of preventive suspension.The petitioner contends that the Sandiganbayan gravely abused its discretion when it preventively suspended him on a ground not authorized by law and raises the following issues: (1) whether Section 13 of R.A. No. 3019applies only to fraudulent acts involving public funds or property; and (2) whether the crime of usurpation of authority or official functionsinvolves "fraud upon government or public funds or property" found in Section 13 of R.A. No. 3019.

We rule in the negative.

First. Section 13 of R.A. No. 3019, as amended, provides:

Section 13. Suspension and loss of benefits . — Any incumbent public officer against whom any criminal prosecution under a validinformation under this Act or under Title 7, Book II of the Revised Penal Code or for any offense involving fraud upon government or publicfunds or property whether as a simple or as a complex offense and in whatever stage of execution and mode of participation, is pending incourt, shall be suspended from office. Should he be convicted by final judgment, he shall lose all retirement or gratuity benefits under anylaw, but if he is acquitted, he shall be entitled to reinstatement and to the salaries and benefits which he failed to receive during suspension,unless in the meantime administrative proceedings have been filed against him.

In the event that such convicted officer, who may have already been separated from the service, has already received such benefits he shall beliable to restitute the same to the Government.

The Sandiganbayan properly construed Section 13 of R.A. No. 3019 as covering two types of offenses: (1) any offense involving fraud on the

government; and (2) any offense involving public funds or property. Contrary to the submission of the petitioner, nothing in R.A. No. 3019evinces any legislative intent to limit Section 13 only to acts involving fraud on public funds or property. The phrase "any offense involvingfraud upon government or public funds or property" is clear and categorical. To limit the use of "government" as an adjective that qualifies"funds" is baseless. The word "public" precedes "funds" and distinguishes the same from private funds. To qualify further "public funds" as"government" funds, as petitioner claims is the law’s intent, is plainly superfluous. We are bound by the rule that a statute should be construedreasonably with reference to its controlling purpose and its provisions should not be given a meaning that is inconsistent with its scope andobject. R.A. No. 3019, commonly known as the Anti-Graft and Corrupt Practices Act, should be read to protect the State from fraud by itsown officials.

Second. We further hold that the Sandiganbayan did not gravely abuse its discretion when it ruled that petitioner’s act fell within the catch-all provision "x x x or for any offense involving fraud upon government. The term "fraud" is defined, viz.:

An instance or an act of trickery or deceit esp. when involving misrepresentation: an act of deluding 27

It is obvious to the eyes that the phrase "fraud upon government" means "any instance or act of trickery or deceit against the government." Itcannot be read restrictively so as to be equivalent to malversation of funds as this is covered by the preceding phrase "any offense involving . .. public funds or property." It ought to follow that "fraud upon government" was committed when the petitioner allegedly assumed the dutiesand performed acts pertaining to the Office of the Mayor under pretense of official position.

The dissent opines that fraud upon government is not necessarily an essential element of the crime of usurpation of authority. The submissionmay be correct as a general proposition but general propositions hardly decide a case. In the case at bar, the issue is whether the alleged actsof usurpation of authority committed by the petitioner involve "fraud upon government or public funds or property" as the term is understoodunder Section 13 of R.A. No. 3019. In ruling in the affirmative, the Sandiganbayan held:

Let us take a look at the acts complained of as alleged in the Amended Information dated July 27, 2001:

x x x the above-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension didthen and there, willfully, unlawfully and knowingly and under pretense of official position, assume the duties and functions of the Office of the Mayor, issue directives and memoranda, and appoint certain persons to various positions in the City Government and perform acts

pertaining to an office to which he knowingly was deprived of.

Moreover, in private complainant Amelita S. Navarro’s Affidavit of Complaint dated November 26, 1997, she said: "x x x, he proceeded tohis office and started giving directives to the various heads of office and other employees, the unexpected acts of respondents had causedserious disruptions in the day to day affairs of the city government."

Accused’s acts therefore in assuming the duties and function of the Office of the Mayor despite his suspension from said office resulted to aclear disruption of office and worst, a chaotic situation in the affairs of the government as the employees, as well as the public, sufferedconfusion as to who is the head of the Office. This actuation of herein accused constitutes fraud which in general sense is deemed to compriseanything calculated to deceive, including all acts, omissions, and concealment involving a breach of legal or equitable duty, trust or confidence justly reposed, resulting in damage to another or by which an undue and unconscious advantage is taken of another (37 Am. Jur.2d 19 at Sec. 19). Hence, the act complained of against accused herein falls in the catchall provision "x x x or for any offense involving fraudupon government x x x."

Moreover, the firmly entrenched doctrine which was held by the Highest Tribunal in a long line of cases is that "x x x under Section 13 of theAnti-Graft and Corrupt Practices Law, the suspension of a public officer is mandatory after a determination has been made of the validity of the Information x x x." In fact, as early as 1984 in the case of Bayot v. Sandiganbayan, 128 SCRA 383, the Honorable Supreme Courtspeaking thru Justice Relova said:

Once the information is found to be sufficient in form and substance, then the Court must issue the order of suspension as a matter of course.There are no ifs and buts about it. x x x

After a perusal of the amended information herein, it clearly appeared that the same was apparently valid for it conforms to the requirementslaid down under Section 6[,] Rule 110 of the Rules of Court. In fact, accused herein interposed a negative plea thereto thereby tacitlyacquiescing to the validity of the said Information.





There being no valid ground raised by the accused sufficient enough to warrant denial of the prayer of the prosecution in its Motion toSuspend Accused Pende[n]te Lite (sic) and in consonance with the imperious mandate of the law, the said prayer should be accordedaffirmative relief .28 (Citations omitted)

In denying petitioner’s Motion for Reconsideration, the Sandiganbayan further held:

Accused in his motion substantially alleged that Article 177 (Usurpation of Authority and Official Function) of the Revised Penal Code,which is the charge against herein accused, does not fall under the catchall provision of Section 13 of Republic Act No. 3019 "x x x or for anyoffense involving fraud upon government or public funds or property x x x." He said that the acts complained of as alleged in the Informationdo not constitute fraud upon government or public fund or property.

Though the argument by the accused seems plausible, this Court is still inclined to uphold its ruling suspending accused pendente lite. Theaccused argued that the fraud contemplated in the law is one involving (1) government funds or property; and (2) public funds or property.This is precisely availing in the case at bar. The Information in herein case, says: "x x x accused x x x assume the duties and functions of theOffice of the Mayor, issue directives and memoranda and appoint certain persons to various positions in the city government, and performacts pertaining to an office to which he knowingly was deprived of." When accused-mayor appointed persons in various positions, heindirectly dealt with the city’s funds as those persons appointed will be given their respective salaries, benefits and other monetaryconsideration which will be paid wholly or mainly out of the city’s funds. Additionally, when he performed acts pertaining to the Office of the Mayor, i.e.[,] approval of vouchers, and payment of other expenses which is subject to proof, he likewise indirectly dealt with the funds of the city.

Moreover, as the prosecution said, "when accused Miranda, willfully and knowingly, during the effectivity of his suspension barged into theCity Hall, issued orders and directives and performed functions as City Mayor, he was sending the unwritten yet visible message that he wasauthorized to do and function as such. x x x." We hold this as a fraud upon government resulting in the chaos or confusion albeit temporary,as the employees would be in a quandary whom to follow or obey.

Hence, considering that the charge herein evidently falls within the compass of the suspension provision invoked by the prosecution, there isno cogent reason for this Court to depart from its previous ruling. Further, considering the mandatory tenor of Section 13[,] Republic Act No.3019, the motion for reconsideration is hereby denied.

Accordingly, the Motion for Reconsideration is denied for lack of merit .29

This Court finds no reason to disagree with the Sandiganbayan.Its conclusions are amply supported by the record. Additionally, the issueof whether petitioner committed fraud upon the government or public funds or property is essentially factual. In a special civil action

for certiorari , the only question that may be raised is whether or not the respondent acted without or in excess of jurisdiction or with graveabuse of discretion. The Court cannot correct errors of fact or law which do not amount to grave abuse of discretion. 30

The dissenting opinion, however, says there was no fraud. It holds that "it would be fraud of public funds if these public officials justcollected their salaries without rendering service to the government." It further asserts that "fraud upon government" must be read so as torequire that malversation of funds was committed. 31 This is a completevolte face from its claim that Section 13 of R.A. No. 3019 covers twotypes of offenses: (1) any offense involving fraud upon the government; and (2) any offense involving public funds or property.32 Whatis more, adopting the dissenting opinion ’s line of reasoning would render superfluous the phrase "fraud upon government" as malversation issubsumed by "any offense involving public funds or property."

Third. We are not a bit persuaded by the posture of the petitioner that he reassumed office under an honest belief that he was no longer under preventive suspension. Petitioner’s pretense cannot stand scrutiny.Petitioner’s own affidavit states: 33

8. That on November 24, 1997, at that time, (sic) I had already served my single preventive suspension for a total number of ONE

HUNDRED TWENTY (120) days more or less counted from July 24, 1997, which far exceeds the allowable period of 60 days as maximum preventive suspension, for a single suspension for a local elective official like me as provided for under the Local Government Code of 1991(sic) on the same date, November 24, 1997 in good faith and upon the advise (sic) of my lawyers, I notified both the Ombudsman and DILGof my intention to assume my office as the duly elected City Mayor of Santiago City;

9. That earlier on November 24, 1997 I started to reassume my office and functions as City Mayor of Santiago City; surprisingly on the samedate, November 24, 1997 I received a memorandum issued by Undersecretary Manuel R. Sanchez of DILG instructing me to cease and desistfrom my plan to reassume the functions and duties of my office;

10. For less than a week, after November 24, 1997Vice-Mayor AMELITA NAVARRO relentlessly harassed and threatened me and myconstituents with bodily harm using the strong arm of the law thru the brute force of the PNP courteousy (sic) of Undersecretary Manuel R.Sanchez I was constrained to ceased (sic) from performing my duties and functions to avoid any possible unfortunate incident thatmay happen to me and any constituents; x x x .34 ( Emphases supplied )

By petitioner’s own admission, he refused to leave his position despite the memorandum of Undersecretary Sanchez and left only a fewdays after receipt thereof due to the coercion of the Philippine National Police. This contradicts his assertion that he immediatelycompliedwith the memorandum of Undersecretary Sanchez. 35Petitioner cannot escape from his own admission.

To be sure, petitioner’s honest belief defense is old hat.In the 1956 case of People v. Hilvano,36 the facts are:

When Mayor Fidencio Latorre of Villareal, Samar, departed for Manila on official business early in the morning of September 22, 1952, hedesignated the herein defendant Francisco Hilvano, councilor, to discharge the duties of his office. Later, during office hours on that sameday, Vice-Mayor Juan Latorre went to the municipal building; and having found Hilvano acting in the place of the Mayor, he served writtennotices to the corresponding municipal officers, including Hilvano, that he (Juan Latorre) as Vice-Mayor was assuming the duties of theabsent mayor. However, Hilvano refused to yield, arguing that he had been designated by the Mayor. Whereupon the Vice-Mayor sent atelegram to the Executive Secretary informing the latter of the controversy. And the said Secretary replied by letter, that under sec. 2195 of




























the Revised Administrative Code it was the Vice-Mayor who should discharge the duties of the Mayor during the latter’s temporary absence.Shown this official pronouncement, Hilvano still refused to surrender the position. Again the Vice-Mayor sought the opinion of the ProvincialFiscal, who by letter (Exhibit D), replied that the Vice-Mayor had the right to the office. Notwithstanding such opinion which was exhibitedto him – Hilvano declined to vacate the post, which he held for about a month, appointing some policemen, solemnizing marriages andcollecting the corresponding salary for mayor.

Wherefore Francisco Hilvano was prosecuted – and after trial – was convicted of usurpation of public authority under Republic Act No. 10.He appealed in due time.

In rejecting the defense of the accused Hilvano, we ruled :37

There is no excuse for defendant-appellant. In the beginning he might have pleaded good faith, invoking the designation by the Mayor; butafter he had been shown the letter of the Executive Secretary and the opinion of the provincial fiscal, he had no right thereafter stubbornly tostick to the position. He was rightfully convicted.

Petitioner’s excuse for violating the order of preventive suspension is too flimsy to merit even a side-glance. He alleged that he merelyfollowed the advice of his lawyer. If petitioner and his counsel had an iota of respect for the rule of law, they should have assailed thevalidity of the order of suspension in court instead of taking the law into their own hands.

Fourth. It should be stressed that petitioner was suspended by the Sandiganbayan. Under Section 13 of R.A. No. 3019, this suspension is

mandatory if the information is sufficient. Understandably, the dissent argues that the Amended Information is insufficient in form as itshould have "expressly and clearly stated that Miranda re-assumed office to defraud the government or that in re-assuming office Mirandacommitted acts that defrauded the government" 38 and that it is improper to take into account the petitioner’s admissions in his affidavit for this

purpose.

With due respect, the dissent is way off-line. The records will show that petitioner did not file a motion to quash the information or a motionfor bill of particulars before pleading to the information. It is basic that entering a plea waives any objection the petitioner may have to thevalidity of the information except on the following grounds: (1) the information charges no offense; (2) the trial court has no jurisdiction over the offense charged; (3) the penalty or the offense has been extinguished; and (4) double jeopardy has attached. 39 Objections to the sufficiencyof the allegations in the Amended Information do not fall among the exceptions to the rule. They fall under the objection that the information"does not conform substantially to the prescribed form." 40 Needless to state, the petitioner has by his acts acquiesced to the validity andsufficiency of the Amended Information. It is, thus, incorrect for the dissenting opinion to peddle the proposition that the petitioner has beendeprived of his constitutional right to be apprised of the nature and cause of the accusation against him. Worse, it is improper for thedissenting opinion to raise this issue motu proprio . Under our Rules of Court, it is the petitioner who should raise this objection in a motionto quash or motion for bill of particulars before entering his plea .41 The irregular procedure followed by the dissent would encourage the

pernicious practice of "sandbagging" where counsel foregoes raising a pleading defect before trial where it can be easily corrected only toraise the defect later in the hope of obtaining an arrest of judgment or new trial from a sympathetic magistrate. 42 It is precisely this evil that isaddressed by Rule 117, Section 9 of our Revised Rules of Criminal Procedure.

Even assuming for the nonce, that the objection to the sufficiency of the information was raised in a timely fashion by the petitioner, thedissenting opinion’s arguments still do not convince. The validity or sufficiency of allegations in an information is determined according tothe provisions of Section 9 of the Revised Rules of Criminal Procedure, viz :

SECTION 9. Cause of the Accusation . — The acts or omissions complained of as constituting the offense and the qualifying and aggravatingcircumstances must be stated in ordinary and concise language and not necessarily in the language used in the statute but in terms sufficient toenable a person of common understanding to know what offense is being charged as well as its qualifying and aggravating circumstances andfor the court to pronounce judgment .43

The test is whether the crime is described in intelligible terms with such particularity as to apprise the accused, with reasonable certainty, of the offense charged. The raison d’etre of the rule is to enable the accused to suitably prepare his defense. 44 A perusal of the AmendedInformation will bear out that it has hurdled this legal bar. We quote its contents:

That on or about 24 November 1997, in the City of Santiago, Isabela, Philippines, and within the jurisdiction of this Honorable Court, theabove-named accused, a public officer, being then the elected City Mayor of Santiago City, while under preventive suspension, did, then andthere, willfully, unlawfully, and knowingly and under pretense of official position, assume the duties and function of the Office of the Mayor,issue directives and memoranda, and appoint certain persons to various positions in the city government, and perform acts pertaining to anoffice to which he knowingly was deprived of. 45

Using this test, it cannot be said that the Amended Information failed to properly apprise the petitioner of the charge against him. Theinformation charged the petitioner with assuming the duties and performing acts pertaining to the office of Mayor willfully, unlawfully andknowingly under the pretense of official position. Moreover, it states some of the specific acts which constitute usurpation of officialfunctions, namely, issuing directives and memoranda and appointing certain persons to various positions in the city government. These

allegations are clear enough for a layman to understand. Indeed, even the petitioner does not complain about their ambiguity. Only the dissentdoes.

Fifth. The dissenting opinion also contends that the Ombudsman’s authority to preventively suspend local elective officials for 6 months islimited by Section 63(b) of the Local Government Code. Under the latter law, petitioner can only be suspended for a maximum period of 60days. It then jumps to the conclusion that petitioner could not have usurped authority because he reassumed office after 60 days .46

With due respect, the dissent fails to focus on the proper issue. The issue before this Court is whether the Sandiganbayan committed a graveabuse of discretion in suspending the petitioner for 90 days. The validity of the Ombudsman’s order of preventive suspension of the

petitioner for 6 months is not the one assailed in the case at bar. The irrelevance of the suspension order of the Ombudsman notwithstanding,the reliance of the dissenting opinion on Garcia v. Mojica is inapropos . In Garcia, we held:































Given these findings, we cannot say now that there is no evidence sufficiently strong to justify the imposition of preventive suspensionagainst petitioner. But considering its purpose and the circumstances in the case brought before us, it does appear to us that theimposition of the maximum period of six months is unwarranted.

On behalf of respondents, the Solicitor General stated during his oral argument at the hearing that the documents mentioned in respondents'comment (such as purchase orders, purchase requests, and disbursement vouchers), documents that show petitioner's guilt, were obtained after

petitioner had been suspended. Even if an afterthought, he claimed they strengthen the evidence of respondents against petitioner. If thepurpose of the preventive suspension was to enable the investigating authority to gather documents without intervention frompetitioner, then, from respondents' submission, we can only conclude that this purpose was already achieved, during the nearlymonth-long suspension of petitioner from June 25 to July 19, 1999. Granting that now the evidence against petitioner is alreadystrong, even without conceding that initially it was weak, it is clear to us that the maximum six-month period is excessive anddefinitely longer than necessary for the Ombudsman to make its legitimate case against petitioner.We must conclude that the periodduring which petitioner was already preventively suspended, has been sufficient for the lawful purpose of preventing petitioner from hidingand destroying needed documents, or harassing and preventing witnesses who wish to appear against him.

We reach the foregoing conclusion, however, without necessarily subscribing to petitioner's claim that the Local Government Code,which he averred should apply to this case of an elective local official, has been violated.True, under said Code, preventive suspensionmay only be imposed after the issues are joined, and only for a maximum period of sixty days. Here, petitioner was suspended without havinghad the chance to refute first the charges against him, and for the maximum period of six months provided by the Ombudsman Law. But asrespondents argue, administrative complaints commenced under the Ombudsman Law are distinct from those initiated under theLocal Government Code. Respondents point out that the shorter period of suspension under the Local Government Code is intended to limit

the period of suspension that may be imposed by a mayor, a governor, or the President, who may be motivated by partisan politicalconsiderations. In contrast the Ombudsman, who can impose a longer period of preventive suspension, is not likely to be similarlymotivated because it is a constitutional body. The distinction is valid but not decisive, in our view, of whether there has been grave abuseof discretion in a specific case of preventive suspension. 47 ( Emphases supplied )

Nowhere in Garcia is it stated that the limits provided in the Local Government Code apply to the Ombudsman. In fact, theCourt expresslystated that its decision was rendered without subscribing to the petitioner’s claim that the Local Government Code had beenviolated. In fine, the Court only ruled that the Ombudsman acted with grave abuse of discretion in imposing a 6-month preventive suspensionsince it was admitted that the documents required were already obtained by 19 July 1999 or 24 days after the imposition of the preventivesuspension. Therefore, the purpose for which the suspension was imposed was already served.

The dissenting opinion also cites the case of Rios v. Sandiganbayan48 as basis for assailing the Ombudsman’s order of preventivesuspension. Rios is neither here nor there since the powers of the Sandiganbayan were at issue in that case, not those of the Ombudsman. Itis also worth noting that Rios cited Section 63 of the Local Government Code as its legal basis. This provision provides:

SECTION 63. Preventive Suspension . -

(a) Preventive suspension may be imposed:

(1) By the President, if the respondent is an elective official of a province, a highly urbanized or an independent component city;

(2) By the governor, if the respondent is an elective official of a component city or municipality; or

(3) By the mayor, if the respondent is an elective official of the barangay.

(b) Preventive suspension may be imposed at any time after the issues are joined, when the evidence of guilt is strong, and given the gravityof the offense, there is great probability that the continuance in office of the respondent could influence the witnesses or pose a threat to the

safety and integrity of the records and other evidence: Provided, That, any single preventive suspension of local elective officials shall notextend beyond sixty (60) days: Provided, further, That in the event that several administrative cases are filed against an elective official, hecannot be preventively suspended for more than ninety (90) days within a single year on the same ground or grounds existing and known atthe time of the first suspension.

(c) Upon expiration of the preventive suspension, the suspended elective official shall be deemed reinstated in office without prejudice to thecontinuation of the proceedings against him, which shall be terminated within one hundred twenty (120) days from the time he was formallynotified of the case against him. However, if the delay in the proceedings of the case is due to his fault, neglect, or request, other than theappeal duly filed, the duration of such delay shall not be counted in computing the time of termination of the case.

It is plain that the provision was only meant as a cap on the discretionary power of the President, governor and mayor to impose excessivelylong preventive suspensions. The Ombudsman is not mentioned in the said provision and was not meant to be governed thereby. Indeed, thereason is not hard to distill. The President, governor and mayor are political personages. As such, the possibility of extraneous factorsinfluencing their decision to impose preventive suspensions is not remote. The Ombudsman, on the other hand, is not subject to political

pressure given the independence of the office which is protected by no less than the Constitution. This view was embraced by the Courtin Hagad v. Gozo-Dadole49 and Garcia v. Mojica.50 In Hagad, we held:

Respondent local officials contend that the 6-month preventive suspension without pay under Section 24 of the Ombudsman Act ismuch too repugnant to the 60-day preventive suspension provided by Section 63 of the Local Government Code to even now maintainits application. The two provisions govern differently.In order to justify the preventive suspension of a public official under Section 24 of R.A. No. 6770, the evidence of guilt should be strong, and (a) the charge against the officer or employee should involve dishonestly,oppression or grave misconduct or neglect in the performance of duty; (b) that the charges should warrant removal from the service; or (c) therespondent's continued stay in office would prejudice the case filed against him. The Ombudsman can impose the 6-month preventivesuspension to all public officials, whether elective or appointive, who are under investigation. Upon the other hand, in imposing the shorter

period of sixty (60) days of preventive suspension prescribed in the Local Government Code of 1991 on an elective local official (at any timeafter the issues are joined), it would be enough that (a) there is reasonable ground to believe that the respondent has committed the act or acts













complained of, (b) the evidence of culpability is strong,(c) the gravity of the offense so warrants, or (d) the continuance in office of therespondent could influence the witnesses or pose a threat to the safety and integrity of the records and other evidence .51

In the same vein, we made the following observations in Garcia, viz.:

Respondents may be correct in pointing out the reason for the shorter period of preventive suspension imposable under the Local GovernmentCode. Political color could taint the exercise of the power to suspend local officials by the mayor, governor, or President's office. In contrastthe Ombudsman, considering the constitutional origin of his Office, always ought to be insulated from the vagaries of politics, asrespondents would have us believe.x x x

It was also argued in Hagad, that the six-month preventive suspension under the Ombudsman Law is "much too repugnant" to the60-day period that may be imposed under the Local Government Code. But per J. Vitug, "the two provisions governdifferently." 52 ( Emphases supplied )

There is no reason to reverse this ruling. Our above ruling is in accord with the intent of the law. It bears emphasis that Senator Pimentel 53 explained during the Senate deliberations that the purpose of Section 63 of the Code is to prevent the abuse of the power of preventive suspension by members of the executive branch, to wit:

The President.54 I recall that in the case of Iloilo City Mayor Ganzon, he challenged the right of the President, acting through the Secretary of Local Government, I think, Luis Santos, to suspend him - -

Senator Pimentel. That is true, Mr. President.

The President. - - contending that under the new Constitution, even the President does not have that right.

Senator Pimentel. Now, as far as we are concerned, the Senate Committee is ready to adopt a more stringent rule regarding thepower of removal and suspension by the Office of the President over local government officials, Mr. President. We would only wish to

point out that in a subsequent section, we have provided for the power of suspension of local government officials to be limited only to 60days and not more than 90 days in any one year, regardless of the number of administrative charges that may be filed against a localgovernment official. We, in fact, had in mind the case of Mayor Ganzon of Iloilo where the Secretary of Local Government sort of serialized the filing of charges against him so that he can be continuously suspended when one case is filed right after the other, Mr.President.

The President. Can that be done under this new Code?

Senator Pimentel. Under our proposal, that can no longer be done, Mr. President .55

Verily, Section 63 of the Local Government Code does not govern preventive suspensions imposed by the Ombudsman, which is aconstitutionally created office and independent from the Executive branch of government. 56 The Ombudsman’s power of preventivesuspension is governed by Republic Act No. 6770, 57otherwise known as "The Ombudsman Act of 1989," which provides:

SECTION 24. Preventive Suspension . — The Ombudsman or his Deputy may preventively suspend any officer or employee under hisauthority pending an investigation, if in his judgment the evidence of guilt is strong, and (a) the charge against such officer or employeeinvolves dishonesty, oppression or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from theservice; or (c) the respondent's continued stay in office may prejudice the case filed against him.

The preventive suspension shall continue until the case is terminated by the Office of the Ombudsman but not more than six months,

without pay, except when the delay in the disposition of the case by the Office of the Ombudsman is due to the fault, negligence or petition of the respondent, in which case the period of such delay shall not be counted in computing the period of suspension herein

provided .58 (Emphasis supplied)

The six-month period of preventive suspension imposed by the Ombudsman 59 was indubitably within the limit provided by its enabling law.This enabling law has not been modified by the legislature.

The dissenting opinion submits that providing for a six-month limit for the Ombudsman while keeping the limit for executive officials at sixtydays violates the constitutional proscription against equal protection of the law. In essence, it avers that there is no substantial distinction

between preventive suspensions handed down by the Ombudsman and those imposed by executive officials. On the contrary, there is a worldof difference between them. The Constitution has endowed the Ombudsman with unique safeguards to ensure immunity from political

pressure. Among these statutory protections are fiscal autonomy, 60 fixed term of office 61 and classification as an impeachable officer .62 Thismuch was recognized by this Court in the earlier cited case of Garcia v. Mojica.63Moreover, there are stricter safeguards for imposition of

preventive suspension by the Ombudsman. The Ombudsman Act of 1989 requires that the Ombudsman determine: (1) that the evidence of

guilt is strong; and (2) that any of the following circumstances are present: (a) the charge against such officer or employee involvesdishonesty, oppression, or grave misconduct or neglect in the performance of duty; (b) the charges would warrant removal from the service;or (c) the respondent's continued stay in office may prejudice the case filed against him .64

The dissenting opinion finally points out the possibility of abuse by the Ombudsman in imposing preventive suspensions. The short reply isthat all powers are susceptible of abuse but that is no reason to strike down the grant of power. Suffice it to say that the proper remediesagainst abuse in the exercise of power are a petition for certiorari under Rule 65 of the 1997 Rules of Civil Procedure or amendment of theOmbudsman’s enabling law by the legislature, not a contortionist statutory interpretation by this Court.

IN VIEW WHEREOF, the instant petition is DISMISSEDthere being no showing that the Sandiganbayan gravely abused its discretion inissuing its Resolution of 4 February 2002, preventively suspending the petitioner for 90 days.













































articles 134-177 crim law 2

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