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conviction provided only that: a) he has been arraigned; b) he has been duly notified of the trial; and c)his failure to appear is unjustified.

The respondent judge was probably still thinking of the old doctrine when he ruled that trial in absentia ofthe escapee could not be held because he could not be duly notified under Section 19. He forgets that thefugitive is now deemed to have waived such notice precisely because he has escaped, and it is also thisescape that makes his failure to appear at his trial unjustified. Escape can never be a legal justification. Inthe past, his escape "rewarded" him by postponing all further proceedings against him and in effectultimately absolving him of the charge he was facing. Under the present rule, his escape will, legally

speaking, operate to Ms disadvantage by preventing him from attending his trial, which will continue evenin his absence and most likely result in his conviction.

The right to be present at one's trial may now be waived except only at that stage where the prosecutionintends to present witnesses who will Identify the accused. 9Under Section 19, the defendant's escape willbe considered a waiver of this right and the inability of the court to notify him of the subsequent hearingswill not prevent it from continuing with his trial. He will be deemed to have received due notice. The samefact of his escape will make his failure to appear unjustified because he has, by escaping, placed himselfbeyond the pale, and protection, of the law.

Trial in absentia was not allowed in Borja v. Mendoza10because it was held notwithstanding that theaccused had not been previously arraigned. His subsequent conviction was properly set aside. But in the

instant case, since all the requisites are present, there is absolutely no reason why the respondent judgeshould refuse to try the accused, who had already been arraigned at the time he was released on theillegal bail bond. Abong should be prepared to bear the consequences of his escape, including forfeiture ofthe right to be notified of the subsequent proceedings and of the right to adduce evidence on his behalfand refute the evidence of the prosecution, not to mention a possible or even probable conviction.

We admonish against a too-literal reading of the law as this is apt to constrict rather than fulfill its purposeand defeat the intention of its authors. That intention is usually found not in "the letter that killeth but inthe spirit that vivifieth," which is not really that evanescent or elusive. As judges, we must look beyondand not be bound by the language of the law, seeking to discover, by our own lights, the reason and therhyme for its enactment. That we may properly apply it according to its ends, we need and must use notonly learning but also vision.

The trial judge is directed to investigate the lawyer who assisted Mario Abong in securing bail from the citycourt of Cebu on the basis of the withdrawn information for homicide and to report to us the result of hisinvestigation within sixty days.

WHEREFORE, the order of the trial court dated December 22, 1983, denying the motion for the trial inabsentia of the accused is set aside. The respondent judge is directed to continue hearing the case againstthe respondent Mario Abong in absentia as long as he has not reappeared, until it is terminated. No costs.

SO ORDERED.

Yap (Chairman), Narvasa, Melencio-Herrera and Paras, JJ., concur.

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Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-37933 April 15, 1988

FISCAL CELSO M. GIMENEZ and FEDERICO B. MERCADO, petitioners,vs.HON. RAMON E. NAZARENO, Presiding Judge, Court of First Instance of Cebu and TEODORO DELA VEGA, JR., respondents.

The Solicitor General for petitioners.

Victor de la Serna for respondents.

GANCAYCO,J.:

Two basic issues are raised for Our resolution in this petition for certiorari and mandamus. The first iswhether or not a court loses jurisdiction over an accused who after being arraigned, escapes from thecustody of the law. The other issue is whether or not under Section 19, Article IV of the 1973 Constitution,an accused who has been duly tried in absentia retains his right to present evidence on his own behalf andto confront and cross-examine witnesses who testified against him.

The following facts are not in dispute:

On August 3, 1973, Samson Suan, Alex Potot, Rogelio Mula, Fernando Cargando, Rogelio Baguio and theherein private respondent Teodoro de la Vega Jr., were charged with the crime of murder.

On August 22, 1973 all the above-named. accused were arraigned and each of them pleaded not guilty tothe crime charged. Following the arraignment, the respondent judge, Hon. Ramon E. Nazareno, set thehearing of the case for September 18, 1973 at 1:00 o'clock in the afternoon. All the acused includingprivate respondent, were duly informed of this.

Before the scheduled date of the first hearing the private respondent escaped from his detention centerand on the said date, failed to appear in court. This prompted the fiscals handling the case (the petitionersherein) to file a motion with the lower court to proceed with the hearing of the case against all theaccused praying that private respondent de la Vega, Jr. be tried in absentia invoking the application ofSection 19, Article IV of the 1973 Constitution which provides:

SEC. 19. In all criminal prosecution, the accused shall be presumed innocent until thecontrary is proved, and shall enjoy the right to be heard by himself and counsel, to be

informed of the nature and cause of the accusation against him, to have a speedy,impartial, and public trial, to meet the witnesses face to face, and to have compulsoryprocess to the attendance of witnesses and the production of evidence in hisbehalf. However, after arraignment trial may proceed notwithstanding the absence of theaccused provided that he has been duly notified and his failure to appear isunjustified. (Emphasis supplied.) *

Pursuant to the above-written provision, the lower court proceeded with the trial of the case butnevertheless gave the private respondent the opportunity to take the witness stand the moment he showsup in court. 1

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After due trial, or on November 6,1973, the lower court rendered a decision dismissing the case againstthe five accused while holding in abeyance the proceedings against the private respondent. The dispositiveportion is as follows:

WHEREFORE, insofar as the accused Samson Suan Alex Potot, Rogelio Mula FernandoCargando and Rogelio Baguio are concerned, this case is hereby dismissed. The City Wardenof Lapu-Lapu City is hereby ordered to release these accused if they are no longer servingsentence of conviction involving other crimes.

The proceedings in this case against the accused Teodoro de la Vega, Jr. who has escapedon August 30,1973 shall remain pending, without prejudice on the part of the said accusedto cross-examine the witnesses for the prosecution and to present his defense whenever thecourt acquires back the jurisdiction over his person. 2

On November 16,1973 the petitioners filed a Motion for Reconsideration questioning the above-quoteddispositive portion on the ground that it will render nugatory the constitutional provision on "trial inabsentia" cited earlier. However, this was denied by the lower court in an Order dated November 22,1973.

Hence, this petition.

The respondent court, in its Order denying the Motion for Reconsideration filed by the herein petitioners,expressed the opinion that under Section 19, Article IV of the 1973 Constitution, the private respondent,who was tried in absentia, did not lose his right to cross-examine the witnesses for the prosecution andpresent his evidence. 3 The reasoning of the said court is that under the same provision, all accusedshould be presumed innocent. 4Furthermore the lower court maintains that jurisdiction over privaterespondent de la Vega, Jr. was lost when he escaped and that his right to cross-examine and presentevidence must not be denied him once jurisdiction over his person is reacquired. 5

We disagree.

First of all, it is not disputed that the lower court acquired jurisdiction over the person of the accused-private respondent when he appeared during the arraignment on August 22,1973 and pleaded not guilty

to the crime charged. In cases criminal, jurisdiction over the person of the accused is acquired either byhis arrest for voluntary appearance in court. Such voluntary appearance is accomplished by appearing forarraignment as what accused-private respondent did in this case.

But the question is this was that jurisdiction lost when the accused escaped from the custody of the lawand failed to appear during the trial? We answer this question in the negative. As We have consistentlyruled in several earlier cases,6 jurisdiction once acquired is not lost upon the instance of parties butcontinues until the case is terminated.

To capsulize the foregoing discussion, suffice it to say that where the accused appears at the arraignmentand pleads not guilty to the crime charged, jurisdiction is acquired by the court over his person and thiscontinues until the termination of the case, notwithstanding his escape from the custody of the law.

Going to the second part of Section 19, Article IV of the 1973 Constitution aforecited a "trial inabsentia"may be had when the following requisites are present: (1) that there has been an arraignment;(2) that the accused has been notified; and (3) that he fails to appear and his failure to do so isunjustified.

In this case, all the above conditions were attendant calling for a trial in absentia. As the facts show, theprivate respondent was arraigned on August 22, 1973 and in the said arraignment he pleaded not guilty.He was also informed of the scheduled hearings set on September 18 and 19, 1973 and this is evidencedby his signature on the notice issued by the lower Court. 7 It was also proved by a certified copy of thePolice Blotter 8 that private respondent escaped from his detention center. No explanation for his failure to

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appear in court in any of the scheduled hearings was given. Even the trial court considered his absenceunjustified.

The lower court in accordance with the aforestated provisions of the 1973 Constitution, correctlyproceeded with the reception of the evidence of the prosecution and the other accused in the absence ofprivate respondent, but it erred when it suspended the proceedings as to the private respondent andrendered a decision as to the other accused only.

Upon the termination of a trial in absentia, the court has the duty to rule upon the evidence presented in

court. The court need not wait for the time until the accused who who escape from custody finally decidesto appear in court to present his evidence and moss e the witnesses against him. To allow the delay ofproceedings for this purpose is to render ineffective the constitutional provision on trial in absentia. As ithas been aptly explained:

. . . The Constitutional Convention felt the need for such a provision as there were quite anumber of reported instances where the proceedings against a defendant had to be stayedindefinitely because of his non- appearance. What the Constitution guarantees him is a fairtrial, not continued enjoyment of his freedom even if his guilt could be proved. With thecategorical statement in the fundamental law that his absence cannot justify a delayprovided that he has been duly notified and his failure to appear is unjustified, such anabuse could be remedied. That is the way it should be, for both society and the offended

party have a legitimate interest in seeing to it that crime should not go unpunished.9

The contention of the respondent judge that the right of the accused to be presumed innocent will beviolated if a judgment is rendered as to him is untenable. He is still presumed innocent. A judgment ofconviction must still be based upon the evidence presented in court. Such evidence must prove him guiltybeyond reasonable doubt. Also, there can be no violation of due process since the accused was given theopportunity to be heard.

Nor can it be said that an escapee who has been tried in absentia retains his rights to cross-examine andto present evidence on his behalf. By his failure to appear during the trial of which he had notice, hevirtually waived these rights. This Court has consistently held that the right of the accused toconfrontation and cross-examination of witnesses is a personal right and may be waived. 10 In the samevein, his right to present evidence on his behalf, a right given to him for his own benefit and protection,may be waived by him.

Finally, at this point, We note that Our pronouncement in this case is buttressed by the provisions of the1985 Rules on Criminal Procedure, particularly Section 1 (c) of Rule 115 which clearly reflects theintention of the framers of our Constitution, to wit:

... The absence of the accused without any justifiable cause at the trial on a particular dateof which he had notice shall be considered a waiver of his right to be present during thattrial. When an accused under custody had been notified of the date of the trail and escapes,he shall be deemed to have waived his right to be present on said date and on allsubsequent trial dates until custody in regained....

Accordingly, it is Our considered opinion, and We so hold, that an escapee who has been duly tried inabsentiawaives his right to present evidence on his own behalf and to confront and cross-examinewitnesses who testified against him. 11

WHEREFORE, in view of the foregoing, the judgment of the trial court in Criminal Case No. 112-L in so faras it suspends the proceedings against the herein private respondent Teodoro de la Vega, Jr. is reversedand set aside. The respondent judge is hereby directed to render judgment upon the innocence or guilt ofthe herein private respondent Teodoro de la Vega, Jr. in accordance with the evidence adduced and theapplicable law.

No pronouncement as to costs.

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SO ORDERED.

Teehankee, C.J., Yap, Fernan, Narvasa, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Padilla,Bidin, Sarmiento, Cortes and Grio- Aquino, JJ., concur.

THIRD DIVISION

[G.R. No. 116511. February 12, 1997]

PEOPLE OF THE PHILIPPINES,plaintiff-appellee, vs. CALOMA TABAG, SARENAS TABAGMARCELINO TABAG, FERNANDO MAGLINTE, JR., ARTEMIO AWOD, LAUREO AWOD,ROMEO AGUIPO, LEOPOLDO LEONCIO and ERNESTO MAWANG, accused. COLOMA TABAGand SERNAS TABAG, accused-appellants.

D E C I S I O N

DAVIDE, JR.,J.:

At about 10:00 p.m. of 11 March 1984 in Sitio Candiis, Barangay Cabidianan, New Corella, Davao, thespouses Welbino Magdasal, Sr., and Wendelyn Repalda Magdasal, together with their children Welbino, Jr.and Melisa, were massacred in their home allegedly by members of the Integrated Civilian Home DefenseForce (ICHDF).

On 14 March 1984, Aniceto Magdasal and Marciana Magdasal, parents of Welbino Magdasal, Sr.reported the incident to the Municipal Mayor of Asuncion, Davao, and to the police authorities of NewCorella. They executed a joint affidavit on that date to request the authorities concerned to follow up said

incident and to conduct proper investigation to the end in view that justice will prevail.

[1]

Later, theytogether with one Lucrecio Dagohoy, executed sworn statements before the police authorities of NewCorella.[2] Yet, the identities of the killers remained unknown.

The first light on the case was shed on 27 February 1985 when Sergio Doctolero, barangay captain ofBuan, Asuncion, Davao, executed a sworn statement[3] declaring that a member of the ICHDF, RomeoGuipo, had confessed to him that it was the team led by Sarenas Tabag that massacred theMagdasals. The real break came three days before the first anniversary of the massacre when ErnestoMawang, a member of that team, gave his sworn statement[4] naming those involved in themassacre. Not long after, another member thereof, one Pablo Oca, likewise gave a swornstatement[5] corroborating Mawangs statements.

On 15 July 1985, an information for murder against accused Coloma Tabag, Sarenas Tabag, MarcelinoTabag, Fernando Maglinte, Jr., Artemio Awod, Romeo Aguipo, Leopoldo Leoncio, and Ernesto Mawang was

filed with the Municipal Trial Court (MTC) of New Corella, Davao.[6] Accompanying the information were theabovementioned joint affidavit, sworn statements, and death certificates of the victims. The informationwas docketed as Criminal Case No. 897.[7]

After examining, through searching questions, witnesses Pablo Oca and Sergio Doctolero, Judge NapyAgayan issued a warrant for the arrest of the accused. No bond was recommended for their temporaryliberty, since they were charged with a capital offense and the evidence of guilt was strong.[8]

On 21 August 1985, accused Sarenas Tabag surrendered to Judge Agayan. [9] The others could not bearrested; hence, an alias warrant for their arrest was issued.[10]
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Sarenas Tabag waived submission of his counter-affidavit and preliminary investigation. Findingprobable cause against him, the MTC ordered on 28 August 1985 the transmittal of the record of the caseto the Office of the Provincial Fiscal and the commitment of Sarenas at the Provincial Jail.[11]

After appropriate proceedings, an information[12] was filed with the Regional Trial Court (RTC) ofTagum, Davao, charging the abovenamed accused with the crime of multiple murder. The accusatoryportion thereof reads as follows:

That on or about March 11, 1984, in the Municipality of New Corella, Province of Davao, Philippines, and

within the jurisdiction of this Honorable Court, the above-mentioned accused, all members of the ICHDF,conspiring, confederating and mutually helping with Coloma Tabag, Marcelino Tabag, Fernando Maglinte,Jr., Artemio Awod, Laureo Awod, Romeo Aguipo, Leopoldo Leoncio and Ernesto Mawang, who are all stillat large, with treachery and evident premeditation and with intent to kill, armed with garand, armalite andcarbine, did then and there wilfully, unlawfully and feloniously attack, assault and shoot WelbinoMagdasal, Sr., Wendelyn Magdasal, Welbino Magdasal, Jr. and Melisa Magdasal, thereby inflicting uponthem injuries which caused their death and further causing actual, moral and compensatory damages tothe heirs of the victims.

The commission of the foregoing offense is attended by the aggravating circumstance of superior strength,nighttime and in band committed with the aid of armed men.

Contrary to law.

The case was docketed as Criminal Case No. 6364 and raffled to Branch 2 of the said court.

Since the other accused had remained at large, the court proceeded with the case against SarenasTabag only. At his arraignment on 11 December 1985, he entered a plea of not guilty.[13]

On 3 March 1987, the prosecution filed a motion to dismiss the case as against Ernesto Mawangbecause it found after a thorough re-assessment of the prosecutions evidence that he does not onlyappear to be less guilty, but he appears not responsible in any way in the commission of the crimecharged.... [He] has not participated in the killing of the victims, he has not fired any shot nor has lungedany bolo to the victims, and his presence in the crime scene was not voluntary on his part.[14] The courtgranted the motion and ordered the immediate release of Mawang from detention.[15]

In the meantime, accused Coloma Tabag, Artemio Awod, Laureo Awod, and Romeo Aguipo werearrested.[16] All of them entered a plea of not guilty at their arraignment.[17]

On 19 October 1989, accused Laureo Awod and Artemio Awod, together with three others, escapedfrom the Provincial Jail. Upon being informed of this incident,[18] the trial court continued the proceedingsas against Sarenas Tabag, Coloma Tabag, and Romeo Aguipo only.[19]

The witnesses presented by the prosecution were Pablo Oca, Sergio Doctolero, Aniceto Magdasal,Pablo Babagonyo (a member of the Philippine National Police [PNP]), Marciana Magdasal, and EnriqueBermejo (Administrative Officer of the PNP of New Corella, Davao), with Doctolero recalled as rebuttalwitness. On its part, the defense presented Sarenas Tabag, Romeo Aguipo, Coloma Tabag, and AlfredoGalocino, with Sarenas Tabag and one Ricardo Agrade called as sur-rebuttal witnesses.

On 7 January 1992, the trial court promulgated its decision,[20] dated 19 December 1991, the

dispositive portion of which reads:

WHEREFORE, finding the accused Sarenas Tabag, Coloma Tabag and Romeo Aguipo or Guipo guiltybeyond reasonable doubt of the crime of four (4) counts of Murder defined and penalized under Article 248of the Revised Penal Code, for the deaths of Welbino Magdasal, Sr., Wendelyn Magdasal, WelbinoMagdasal, Jr. and Melisa Magdasal, each of them is sentenced to suffer four (4) indivisible prison termsofRECLUSION PERPETUA, to suffer all the accessory penalties provided for by law and to pay the costs.

They are further condemned to jointly and severally indemnify the heirs of their victims in the total sum ofFOUR HUNDRED THOUSAND (P400,000.00) PESOS as moral damages; SIX THOUSAND (P6,000.00) asattorneys fees to Marciana Magdasal, mother of the late Welbino Magdasal, Sr., and FOUR THOUSAND(P4,000.00) PESOS as actual and compensatory damages.[21]
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The material operative facts established by the evidence for the prosecution was summarized by theOffice of the Solicitor General in the Brief for the Appellee as follows:

On March 11, 1984, at around 9:00 oclock in the evening, Pablo Oca was in the CHDF detachment inBarangay Buan, Asuncion, Davao. (p. 5, TSN, September 10, 1986) Also present were Marcelino Tabag,appellant Sarenas Tabag, appellant Coloma Tabag, Artemio Awod, Laureo Awod, Ernesto Mawang,Romeo Guipo and Fernando Maglinte, all members of the CHDF. (p. 6, Ibid.) While there, appellantSarenas talked to his son, Marcelino Tabag, and his brother, appellant Coloma Tabag (Ibid.) Thereafter,Sarenas told the group to go on patrol. (pp. 7 and 14, Ibid.) Pablo asked Marcelino where they were

going but the latter kicked him in the buttocks, and told him to just keep quiet and follow. (p. 15, Ibid.)

Marcelino led the group to Barangay Cadi-is, Asuncion,* Davao. (p. 7, Ibid.) The group reached Cadi-is at11:00 oclock in the evening (p. 17, Ibid.). Upon reaching the house of Welbino Magdasal, the groupstood to observe for a while. (p. 12, TSN, January 18, 1988) Pablo Oca was posted as lookout five metersaway from the house. (p. 17, Ibid. and p. 18, TSN, September 10, 1986)

After some time, Fernando Maglinte went up the house and knocked at the door. (p. 17, Ibid.) The doorwas opened and Welbino Magdasal went out of the house. (p. 17, TSN, January 13, 1988) Marcelinoordered his companions to open fire at Welbino. (p. 24, TSN, September 10, 1986) The children whowere inside the house started shouting. (p. 10, Ibid.) Three men from Marcelinos group went up thehouse and stabbed to death Welbinos wife, Wendelyn, and their two children, Welbino, Jr., and Melisa.

(Ibid.)

After the massacre, Marcelinos group went back to their detachment at Barangay Buan. (Ibid.) Uponarrival, appellant Sarenas asked Marcelino, Is it finished to which the latter answered, Yes, it isfinished. (p. 11, Ibid.) Sarenas inquired further, Did you gather the CHDF? (Ibid.) Sarenas warnedeach member of Marcelino's group to keep quiet about the incident and threatened to shoot whoever willsqueal. (p. 11, and 16, Ibid.)

As a result of the massacre, the entire family of Welbino died. Welbinos mouth was shattered and hisintestines protruded out. (p. 9, TSN, April 12, 1989) Wendelyns left leg and left arm were twisted.(Ibid.) Welbino, Jr. sustained wounds on his face and stab wounds in his chest. (Ibid.) Melisa was likewisewounded and died in the hospital. (Ibid.) A total of thirty-two empty shells of M16 spent bullets wererecovered from the scene of the massacre. (p. 4, TSN, January 5, 1990)

This summary is faithfully borne out by the transcripts of the testimonies of the prosecution witnesses;hence, we adopt it as our own.

It was further established through the testimony of Pablo Oca that after talking to his son Marcelinoand brother Coloma, Sarenas called for the other members of the ICHDF and instructed them to go onpatrol. While on the way to New Visayas, Marcelino separated from the others. The latter, neverthelessfollowed him to Sitio Candiis and then to the house of the victims.[22]

Alibi and denial were the defenses interposed by accused Sarenas Tabag, Coloma Tabag, and RomeoAguipo.

Sarenas Tabag was the head of the ICHDF team in question. He was enlisted into it when he was the

barangay captain of Buan, Asuncion, Davao. The team was to serve only in the municipality of Asuncion;its specific area of operation were the barangays of Buan, New Visayas, and Sunlon, all in Asuncion. Althe members of the team took orders from him. [23] On 11 March up to 12 March 1984, he was with CplGafod on a military operation of the 37th Infantry Battalion in New Visayas and Sunlon, AsuncionDavao. Aside from Cpl. Gafod, he was with Laureo Awod, Artemio Awod, Marcelino Tabag, ErnestoMawang, Fernando Maglinte, Jr., Pepito Tabag, and Cortez Tabag. Sarenas asserted that he could nohave conducted a briefing, as some of his men, particularly Coloma Tabag and Pablo Oca, were in Mawab[24] Sarenas likewise denied having asked Marcelino after the killing, Human na? and having threatenedthose who patrolled on that fateful night that anybody who squeals would be shot with a clip obullets. Sarenas also testified that Pablo Oca could not have been at the detachment on the night of 11March 1984, as he was relieved of his post as a member of the ICHDF as early as 24 December 1983 forhaving discharged seven clips from his garand rifle while drunk. [25] This then provided Ocas motive to
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testify against him (Sarenas).[26] Sarenas further declared that members of his family were massacred bysuspected members of the NPA.[27]

Coloma Tabag declared that on 11 March 1984, he was in Mawab, Davao del Norte, panning forgold. He went there on 4 March 1984 with his two children. Mawab is more than twenty kilometers awayfrom Barangay Buan, Asuncion, Davao del Norte.[28]

Romeo Aguipo testified that at 10:00 p.m. of 11 March 1984, he was at the copra drier in BarangayBuan watching the copra. He said he was there from 9 March to 12 March 1984. The copra drier wasonly two kilometers away from the ICHDF detachment.[29]

The trial court gave full faith to the version of the prosecution and disregarded that of the defense. Asto the motive of accused Sarenas Tabag, the trial court stated:

Fourth: Sarenas Tabag also declared that his family, sometime before March 11, 1984, was massacredand his suspects were the members of the New Peoples Army.

The Magdasals, who first resided in Buan, Asuncion, transferred to Sunlon, Asuncion, which was infestedwith members of the New Peoples Army, according to Sarenas Tabag.

Sunlon being infested with members of the New Peoples Army, Welbino Magdasal, Sr. and/or his familycould easily be suspected or he and his family must be members of the New Peoples Army.

Since the family of Sarenas Tabag was a victim of a massacre by the New Peoples Army, the killing ofWelbino Magdasal, Sr. and the members of his family must be the retaliation of Sarenas Tabagperpetrated through his men who were CHDF members.[30]

In support of its conclusion that four counts of murder were committed, the trial court rationalizedthat

the deaths of Welbino Magdasal, Sr., Wendelyn Magdasal, Welbino Magdasal, Jr. and Melisa Magdasalresulted not [from] a single act punishable as complex crime under Article 48 of the Revised PenalCode but [from] a series of acts ... with the qualifying aggravating circumstances of either treachery,evident premeditation, or superior strength having been taken advantage of.[31]

It opted to consider evident premeditation to qualify the killing to multiple murder and consideredtreachery, nighttime, and band as generic aggravating circumstances.[32]

From the judgment of conviction, only accused Sarenas Tabag and Coloma Tabag filed their notice ofappeal.[33]

On 8 August 1995, after filing his Appellants Brief,[34] accused Coloma Tabag died at the Davao Prisonand Penal Farm.[35] Accordingly, in the resolution of 21 February 1996, we ordered the dismissal of thecase against him.

Only the appeal of accused Sarenas Tabag is left for our determination.

In his Appellants Brief, accused Sarenas Tabag contends that the trial court erred in

1. CONVICTING THE ACCUSED-APPELLANT SARENAS TABAG NOT BECAUSE OF THE WEAKNESSOF THE PROSECUTIONS EVIDENCE BUT BECAUSE OF THE WEAKNESS OF THE DEFENSESEVIDENCE;

2. CONVICTING THE ACCUSED-APPELLANT SARENAS TABAG AS CONSPIRATOR ORCONFEDERATE, THE ALLEGATION OF CONSPIRACY NOT HAVING BEEN ESTABLISHED BEYONDREASONABLE DOUBT;

3. NOT ACQUITTING ACCUSED-APPELLANT SARENAS TABAG ON THE GROUND THAT HE ISEXEMPTED FROM CRIMINAL LIABILITY UNDER ARTICLE 11, (5) & (6), OF THE REVISED PENALCODE.
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The first assigned error is without basis. The trial court convicted him primarily on the basis of theevidence for the prosecution. If at all the trial court considered the weakness of the evidence of thedefense, it was merely to show that the massive proof of guilt was not shakened by the brazen andunmitigated lies of the accused and their witnesses.[36]

Regarding Tabags second assigned error, we have held time and again that conspiracy need not beestablished by direct proof. It may be deduced from the mode and manner in which the offense wasperpetrated, or inferred from the acts of the accused themselves when such acts point to a joint purposeand design, concerted action, and community of intent.[37] It must, however, be shown to exist as clearlyand as convincingly as the offense itself.[38]

Indeed, Sarenas was not at the scene of the massacre at the time it was committed. His alibi wasfirmly established not only through his evidence but also by the testimony of prosecution witness PabloOca. That fact, notwithstanding, we are convinced that Sarenas was not just a co-conspirator; he was themastermind of the massacre or the principal by inducement. His role was established with moral certaintyby weighty circumstantial evidence.

Under Section 4, Rule 133 of the Rules of Court, circumstantial evidence is sufficient for conviction if(a) there is more than one circumstance; (b) the facts from which the inferences are derived are proven;and (c) the combination of all the circumstances is such as to produce a conviction beyond reasonabledoubt. As jurisprudentially formulated, a judgment of conviction based on circumstantial evidence can beupheld only if the circumstances proven constitute an unbroken chain which leads to one fair andreasonable conclusion pointing to the accused, to the exclusion of all others, as the guilty person, i.e., the

circumstances proven must be consistent with each other, consistent with the hypothesis that the accusedis guilty, and at the same time, inconsistent with any other hypothesis except that of guilty.[39]

In the instant case, the following circumstances were duly proven:

1. Sarenas was the leader of the ICHDF team in Barangay Buan, Asuncion, Davao.

2. Before the massacre in question, members of Sarenas family were massacred by personswhom he believed were members of the NPA. Sarenas suspected the Magdasals to bemembers of the NPA.[40]

3. Prosecution witness Pablo Oca and the other accused were members of Sarenas team; assuch, they took orders from Sarenas. On his cross-examination, Sarenas proudly admitted ofhis authority to give orders.[41]

4. At about 9:00 p.m. of 11 March 1984, Sarenas team met at the ICHDF Detachment inBarangay Buan where Sarenas gave a briefing to his son Marcelino and brother Coloma.

5. After the briefing, Sarenas instructed the team to go on patrol in New Visayas and somedistance away. Marcelino and Coloma led the team.

6. The area of operation of Sarenas team is comprised of the barangays of Buan, New Visayas,and Sunlon, all of Asuncion, Davao.

7. Somewhere along the way, instead of patrolling their area of operation, Marcelino proceededtoward Sitio Candiis, Barangay Cabidianan, Asuncion, Davao.

8. Pablo asked Marcelino where they were going, but the latter kicked the former on his buttocksand told him just to keep quiet and to follow.

9. Upon reaching Sitio Candiis, the team proceeded to the house of the victims. Marcelino Tabagordered Pablo Oca to serve as look-out, while Marcelino, Coloma Tabag, Fernando Maglinte,Laureo Awod, Artemio Awod, and Romeo Aguipo fired their garands toward the victimshouse. Then Marcelino, Coloma, Laureo, and Artemio went up the house and started stabbingWelbinos wife and children.[42]

10. After the massacre, the team returned to its detachment in Barangay Buan. Upon arrivalthereat, Sarenas asked his son Marcelino whether it was finished, and the latter answered inthe affirmative.[43]
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11. After Marcelino made the report to his father that it [was] finished, the members of theteam were gathered. Sarenas forthwith warned them against squealing, otherwise thesquealer would be shot.[44]

From the foregoing, it is clear that Sarenas had the motive to eliminate Welbino Magdasal, Sr., andhis family. The briefing was on a matter which he could neither openly discuss nor entrust to others whowere not of his confidence. He thus chose for the purpose no less than his son Marcelino and brotherColoma. Then, as the subsequent developments showed, the briefing turned to none other than aninstruction to get rid of the Magdasal family or to finish them off. If it were otherwise, Marcelino wouldnot have led the team to a place outside of its area of operation, or to Sitio Candiis of BarangayCabidianan, in another municipality, where the house of the victims was located. Sarenas knew exactlywhere Marcelino should lead the team and what it was expected to do. He even waited at the detachmenin Barangay Buan for the teams return, and upon its return he asked Marcelino whether itsfinished. When Marcelino assured him that it was, Sarenas warned the other members of the team not totalk about or reveal the massacre, otherwise the squealer would be killed. None did, not until nearly ayear later.

All told, the concordant combination and cumulative effect[45] of the foregoing circumstances morethan satisfy the requirements of Section 4, Rule 133 of the Rules of Court.

In his third assigned error, accused Sarenas Tabag invokes paragraphs 5 and 6, Article 11 of theRevised Penal Code, which provide for justifying circumstances.[46] He contends that being a member ofthe ICHDF involved in the battle against insurgency, he was in the performance of an official duty or

function duly authorized by law[47] and that he is, therefore, exempt from criminal liability.

This assigned error is not predicated on a hypothesis that even granting arguendo that he was a co-conspirator with the other accused in the massacre of the Magdasals he would still be exempt from anycriminal liability because he was in the performance of an official duty or function duly authorized bylaw. Not being so, he thus admits that he was a co-conspirator. The slip may be showing much, or thatthe conscience has unwittingly told the truth. Yet, we shall not put Sarenas on a bind or be too harsh tohim for the imprecise formulation of this assigned error.

In no way can Sarenas claim the privileges under paragraphs 5 and 6, Article 11 of the Revised PenaCode, for the massacre of the Magdasals can by no means be considered as done in the fulfillment of aduty or in the lawful exercise of an office or in obedience to an order issued by a superior for some lawfulpurpose. Other than suspicion, there is no evidence that Welbino Magdasal, Sr., his wife Wendelyn, and

their children were members of the NPA. And even if they were members of the NPA, they were entitledto due process of law. On that fateful night of 11 March 1984, they were peacefully resting in theirhumble home expecting for the dawn of another uncertain day. Clearly, therefore, nothing justified thesudden and unprovoked attack, at nighttime, on the Magdasals. The massacre was nothing but amerciless vigilante-style execution.

As to the crime committed, we agree with the trial court that in killing Welbino Magdasal, Sr., his wifeWendelyn, and their children Welbino, Jr., and Melisa, the accused committed four separate crimes ofmurder, which are charged in the information. There was no challenge thereon on the ground that theinformation charges more than one offense.[48] Accordingly, the accused could be properly convicted ofour counts of murder.

As to the circumstance which qualified the killings to murders, we differ with the view of the triacourt. It should be treachery,[49] not evident premeditation,[50] as ruled by the latter. The evidence for theprosecution failed to satisfy two of the three requisites of evident premeditation, viz., (a) the time whenSarenas determined to commit the crime, (b) a sufficient lapse of time between such determination andexecution to allow him to reflect upon the consequences of his act. [51] On the other hand, treachery wasestablished beyond cavil. Accused Marcelino Tabag, Coloma Tabag, Fernando Maglinte, Laureo AwodArtemio Awod, and Romeo Aguipo suddenly fired their high-powered firearms toward Welbino Magdasal,Sr., and thereafter, they went upstairs and stabbed his wife Wendelyn and his children Welbino, Jr., andMelisa. The victims, all unarmed, were caught by surprise and were in no position to offer anydefense. There can be no doubt in any ones mind that the accused employed means, methods, or formsin the execution of the killings which tended directly and specially to ensure their execution, without riskto themselves arising from the defense which the offended party might make.[52]
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The trial court likewise erred in appreciating nighttime and band as generic aggravatingcircumstances. Under the facts of this case, nighttime or nocturnity was absorbed in treachery, since itwas evidently an integral part of the peculiar treacherous means and manner adopted to ensure theexecution of the crimes, or that it facilitated the treacherous character of the attack.[53] Bandor cuadrilla was likewise absorbed in treachery.[54]

Aside from disregarding nighttime and band as aggravating circumstances, we also give accusedSarenas Tabag the benefit of the mitigating circumstance of voluntary surrender. For, as evidenced by acertification issued by Judge Napy Agayan, Sarenas Tabag voluntarily surrendered himself before thewarrant for his arrest was served on him.

The penalty for murder at the time the accused committed the four separate crimes of murderwas reclusion temporalin its maximum period to death. There being one mitigating circumstance withoutany aggravating circumstance to offset it, and applying the Indeterminate Sentence Law, the penaltyimposable in each case isprision mayorin its maximum period to reclusion temporalin its medium periodas minimum, to reclusion temporalin its maximum period, as maximum.

As to the civil liabilities, the award of P400,000.00 as moral damages is not correct. Current caselaw fixes the indemnity for death at P50,000.00. Moral damages may also be recovered in criminal casesunder Article 2219 of the Civil Code. Marciana Magdasal, mother of Welbino Magdasal, Sr., left to thediscretion of the trial court the quantification of her sufferings caused by the death of her son, daughter-in-law, and two grandchildren. Since Marcianas husband did not testify as to his moral suffering, anyaward for moral damages must be in favor of Marciana only, and an award of P10,000.00 in each of the

four counts of murder is adequate. Hence, the total indemnity to be awarded to the heirs of the victimsshall be P200,000.00, and the aggregate moral damages to be awarded to Marciana Magdasal shalbe P40,000.00.

Finally, the trial court also erred in not proceeding with the case against Laureo Awod and ArtemioAwod after their successful escape on 19 October 1989 while in preventive detention. They had alreadybeen arraigned. Therefore, pursuant to the last sentence of paragraph (2), Section 14, Article III of theConstitution,[55] trial against them should continue and upon its termination, judgment should be renderedagainst them notwithstanding their absence unless, of course, both accused have died and the fact of suchdeath is sufficiently established. Conformably with our decision in People v. Salas,[56] their escape shouldhave been considered a waiver of their right to be present at their trial, and the inability of the court tonotify them of the subsequent hearings did not prevent it from continuing with their trial. They were to bedeemed to have received notice. The same fact of their escape made their failure to appear unjustified

because they have, by escaping, placed themselves beyond the pale and protection of the law. This beingso, then pursuant to Gimenez v. Nazareno,[57] the trial against the fugitives, just like those of the others,should have been brought to its ultimate conclusion. Thereafter, the trial court had the duty to rule on theevidence presented by the prosecution against all the accused and to render its judgment accordingly. Itshould not wait for the fugitives re-appearance or re-arrest. They were deemed to have waived theiright to present evidence on their own behalf and to confront and cross-examine the witnesses whotestified against them.

It is obvious that the trial court forgot our rulings in Salas and Nazareno. We thus take thisopportunity to admonish trial judges to abandon any cavalier stance against accused who escaped afterarraignment, thereby allowing the latter to make a mockery of our laws and the judicial process. Judgesmust always keep in mind Salas and Nazareno and apply without hesitation the principles therein laiddown, otherwise they would court disciplinary action.

WHEREFORE, the appealed decision of Branch 2 of the Regional Trial Court of Tagum, Davao, inCriminal Case No. 6364 is AFFIRMED, with the modification (1) sentencing accused-appellant SARENASTABAG in each of the four crimes to an indeterminate penalty of Twelve (12) years and One (1) dayofreclusion temporal, as minimum, to Seventeen (17) years, Four (4) months, and One (1) dayofreclusion temporal, as maximum; and (2) deleting the award of P400,000.00 as moral damages andawarding, in lieu thereof, (a) P200,000.00 as indemnity for the deaths of Welbino Magdasal, Sr.Wendelyn Repalda Magdasal, Welbino Magdasal, Jr., and Melisa Magdasal, payable to the heirs of thevictims; and (b) P40,000.00 as moral damages, payable to Marciana Magdasal.

The Resolution of 21 February 1996 dismissing the case as against accused Coloma Tabag because ofhis death is hereby reiterated.
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The trial court is ordered to continue with the proceedings in Criminal Case No. 6364 as againstaccused Laureo Awod and Artemio Awod if they are still alive, in accordance with the principles laid downin People v. Salas and Gimenez v. Nazareno.

Costs against accused-appellant Sarenas Tabag.

SO ORDERED.

Narvasa, C.J., (Chairman), Melo, Francisco, and Panganiban, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

G.R. No. 157331 April 12, 2006

ARNOLD ALVA, Petitioner,vs.HON. COURT OF APPEALS, Respondent.

D E C I S I O N

CHICO-NAZARIO,J.:

Before us is a petition for review on certiorariunder Rule 45 of the Rules of Court, as amended, assailingthe twin Resolutions of the Court of Appeals (CA), dated 18 October 20021 and 19 February2003,2 respectively, in CA-G.R. CR No. 24077, entitled People of the Philippines v. Arnold Alva.

The CA, in the assailed resolutions, dismissed petitioners appeal of the trial courts judgment of convictionfor failing to post a new bail bond to secure his provisional liberty on appeal.

The Facts

The present petition stemmed from an Information3 charging petitioner with having committed the crimeof estafa defined under Article 315, Paragraph 2(a) of the Revised Penal Code, alleging as follows:

The undersigned accuses ARNOLD ALVA of the crime of ESTAFA, committed as follows:

That in or about and during the period covered between October 18, 1993 up to December 18, 1993,inclusive, in the City of Manila, Philippines, the said accused, did then and there willfully (sic), unlawfullyand feloniously defraud YUMI VERANGA y HERVERA in the following manner, to wit: the said accused, bymeans of false manifestation and fraudulent representation which he made to said YUMI VERANGA yHERVERA to the effect that he could process the latters application for U.S. Visa provided she would give

the amount of P120,000.00, and by means of other similar deceit, induced and succeeded in inducing saidYUMI VERANGA y HERVERA to give and deliver, as in fact she gave and delivered to said accused theamount of P120,000.00 on the strength of said manifestation and representation said accused wellknowing that the same were false and untrue for the reason that the U.S. Visa is not genuine and weremade solely to obtain, as in fact he did obtain the amount ofP120,000.00 which amount once in hispossession with intent to defraud, he wilfully (sic), unlawfully and feloniously misappropriated, misappliedand converted the said amount to his own personal use and benefit, to the damage and prejudice of thesaid YUMI VERANGA y HERVERA in the aforesaid amount of P120,000.00, Philippine Currency.

CONTRARY TO LAW.
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The resultant criminal case was filed and docketed as Criminal Case No. 95-143803 and raffled to theRegional Trial Court (RTC) of Manila, Branch 54, presided by Judge Manuel T. Muro.

On 5 September 1995, the RTC issued a Recall Order4 of the Warrant of Arrest issued on 18 July 1995against petitioner in view of the approval of his bail bond by Hon. William Bayhon, then Executive Judge ofthe RTC of Manila.

Upon arraignment on 7 December 1995, petitioner, duly assisted by counsel,5 pleaded not guilty to thecrime charged.

After the trial on the merits, in an Order6 dated 6 April 1998, the RTC considered the case submitted fordecision.

On 4 May 1999, petitioners counsel filed an Urgent Motion to Cancel Promulgation7 praying for theresetting of the 5 May 1999 schedule of promulgation of the RTCs decision to 17 June 1999 in view of thefact that said counsel already had a prior commitment on subject date. The RTC granted the motion. Thepromulgation, however, was deferred only until 19 May 1999.

A day before the rescheduled date of promulgation, or on 18 May 1999, petitioners counsel again movedfor the deferment of the promulgation, due to prior "undertakings of similar importance."8

On 19 May 1999, petitioner and counsel both failed to appear in court despite due notice. In his stead,claiming to be petitioners representative, a certainJoey Perezpersonally delivered to the RTC a handwritten medical certificate9 expressing petitioners inability to attend the days hearing due tohypertension.

In response to the aforestated acts of petitioner and counsel, the RTC issued an Order10 directing thepromulgation of its decision in absentia and the issuance of a bench warrant of arrest against petitioner forhis failure to appear before it despite due notice.

In its decision dated 25 March 1999,11 the RTC found petitioner guilty of the crime of estafa under Article315, paragraph 2(a) of the Revised Penal Code, the decretal part of which reads:

WHEREFORE, judgment is hereby rendered: finding the accused guilty beyond reasonable doubt of thecrime of estafa under Article 315, No. 2(a) of the RPC and sentences him to an indeterminate term ofimprisonment of nine (9) years and one (1) day as minimum of prision mayor to seventeen (17) years asmaximum of reclusion temporalin accordance with the provisions of Article 315, first, and theIndeterminate Sentence Law, and further for the accused to return the P120,000.00 to the complainantwith an interest at the rate of twelve percent (12%) compounded annually from January 1, 1994 (theamount has been given to the accused in October and December 1993).

Meanwhile, as appearing in the records of the RTC, immediately following an original duplicate copy of theaforequoted decision, a document entitled Personal Bail Bond12 dated 21 May 1999 issued by Mega PacificInsurance Corporation, seemed to have been filed before and approved by the RTC as evidenced by thesignature of Judge Muro on the face of said bail bond.13 For such reason, petitioner appeared to have been

admitted to bail anew after his conviction.

Incongruous to the above inference, however, in an Order14 dated 25 May 1999, judgment was renderedagainst Eastern Insurance and Surety Corporation, the bonding company that issued petitioners originalbail bond, in the amount of P17,000.00, for failure to produce the person of petitioner within the 10 dayperiod earlier provided and to explain why the amount of its undertaking should not be forfeited.

In the interregnum, Police Superintendent Ramon Flores De Jesus, Chief of Warrant and SubpoenaSection,15manifested to the RTC the return of the unexecuted Warrant of Arrest issued on 19 May 1999"for the reason that the address of the accused (petitioner) is not within our area of responsibility. x x x"Nevertheless, De Jesus reassured the RTC that "the name of the accused will be included in our list of
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wanted persons for our future reference." Examination of the records of the case revealed that petitioneralready moved out of his address on record without informing the RTC.

On 15 July 1999, hand delivered by a certain Remedios Caneda, petitioner wrote16 the RTC requesting fora certified photocopy of his exhibits submitted to it during trial.

On 21 July 1999, a Termination of Legal Services was filed by petitioner before the RTC informing it of hisdecision to terminate the services of his counsel and that he was currently in the process of hiring a newone.

On 26 July 1999,17 petitioner filed a Motion for Reconsideration before the RTC.

In an Order18 dated 30 August 1999, the RTC declined to give due course to said motion for failure to set itfor hearing; thus, treating it as a mere scrap of paper.

On 2 September 1999, petitioner received the above Order. The next day, or on 3 September 1999,petitioner filed a Notice of Appeal19 before the RTC.

In an Order20 dated 20 September 1999, the RTC again declined to give due course to the Notice ofAppeal, ratiocinating thus:

The "Notice of Appeal" filed by accused cannot be given due course as it was filed out of time. Althoughaccused filed a "Motion for Reconsideration" dated 23 July 1999, the Court considered it as a mere scrapof paper and was not acted upon as the same was not set for hearing, hence, it did not stop thereglementary period to file appeal.

On 25 November 1999, petitioner filed anew a motion praying for the RTCscategorical resolution of his23 July 1999 Motion for Reconsideration.

In an Order dated 7 December 1999, the RTC granted the abovestated motion, the full text of whichstates:

The Motion to Resolve the Motion for Reconsideration of the accused, dated November 20, 1999 is granted

in the interest of justice, considering that the one who prepared the Motion for Reconsideration appears tobe the accused himself, who may not appear to be a lawyer and may not be conversant with the rules,among others, governing motions.

Acting on the said Motion for Reconsideration itself, same is denied for lack of merit. The Decision hasexamined and discussed the evidence presented and the merits of the case.

Because of the pendency of the Motion for Reconsideration, the appeal is deemed filed on time, and theappeal is given due course.

Let the records of the case, together with three (3) copies of the transcripts of stenographic notes betransmitted to the Hon. Court of Appeals.

On appeal before the Court of Appeals, in a Resolution21 dated 16 October 2001, the appellate courtrequired petitioner to show cause why his appeal should not be dismissed it appearing that no new bailbond for his provisional liberty on appeal had been posted, to wit:

Considering the arrest warrant issued by the trial court against the accused who failed to appear at thepromulgation of the judgment, and it appearing from the record that no new bond for his provisionalliberty on appeal has been posted, appellant is ORDERED to SHOW CAUSE within ten (10) days fromnotice why his appeal should not be dismissed outright.

On 29 October 2001, petitioner, through new counsel, filed a Compliance22 essentially stating therein that:
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x x x x

3. Upon learning of the course of action taken by the presiding judge, and for purposes of appealing thedecision subject of the instant case, on May 21, 1999, accused immediately posted a new bond for hisprovisional liberty. The presiding judge of the lower court, which issued the questioned decision, dulyapproved the new bond.1avvphil.netCertified true copy of the bond is hereto attached as Annex "3" andmade an integral part hereof;

x x x x.

In a Resolution23 dated 18 October 2002, the Court of Appeals, nonetheless dismissed the appeal filed bypetitioner for "appellants failure to post a new bond for his provisional liberty on appeal despite ourdirective as contained in our Resolution dated October 16, 2001, and in view of the fact that his personalbail bond posted in the lower court had already expired, x x x."

Undaunted, petitioner filed a Motion for Reconsideration24 thereto seeking its reversal. According topetitioners counsel, he was of the understanding that the "Show Cause" Resolution of 16 October 2001merely sought an explanation vis--vis the absence of a bail bond guaranteeing petitioners provisionalliberty while his conviction was on appeal. All the same, petitioners counsel manifested that Mega PacificInsurance Corporation, had already extended the period covered by its 21 May 1999 bail bond. Attachedto said motion was a Bond Endorsement25extending the coverage of the bail bond from 21 May 1999 to 21

May 2003.

Asked to comment on the Motion for Reconsideration, respondent People of the Philippines (People),through the Office of the Solicitor General (OSG), interposed objections. In its Comment,26 respondentPeople raised two arguments: 1) that "an application for bail can only be availed of by a person who is inthe custody of the law or otherwise deprived of his liberty;" and 2) that "bail on appeal is a matter ofdiscretion when the penalty imposed by the trial court is imprisonment exceeding six (6) years."

On 19 February 2003, the Court of Appeals issued the second assailed Resolution,27 disposing ofpetitioners motion as follows:

Finding no merit in appellants motion for reconsideration (citation omitted) filed on November 12, 2002,

the same is hereby DENIED. We agree with the appellee that appellant has failed to submithimself under the jurisdiction of the court or under the custody of the law since his convictionin 1999 and that there was no valid bail bond in place when appellant took his appeal.

WHEREFORE, appellants motion for reconsideration is DENIED. [Emphasis supplied.]

Hence, this petition.

The Issues

Petitioner now comes to this Court via a petition for review on certiorari under Rule 45 of the Rules ofCourt alleging the following errors:28

I.

THE HONORABLE COURT OF APPEALS HAS DECIDED QUESTIONS OF SUBSTANCE IN A WAY NOT INACCORD WITH LAW OR WITH APPLICABLE DECISIONS OF THIS HONORABLE SUPREME COURT;

II.

THE HONORABLE COURT OF APPEALS ACTED WITH GRAVE ABUSE OF DISCRETION AMOUNTING TO LACKOR EXCESS OF JURISDICTION WHEN IT DISMISSED THE PETITION DOCKETED AS CA G.R. CR NO. 24077ON THE GROUND OF ALLEGED FAILURE TO POST A NEW BOND FOR PETITIONERS PROVISIONAL LIBERTY
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AND THAT THE PERSONAL BAIL BOND POSTED IN THE LOWER COURT HAD ALLEGEDLY ALREADYEXPIRED;

III.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE ABUSE OF DISCRETIONWHEN IT DID NOT CONSIDER AS SUBSTANTIAL, THE COMPLAINCE FILED BY THE PETITIONER WHICHSHOWED THE FACT THAT INDEED THERE WAS A BAIL BOND FILED FOR THE PROVISIONAL LIBERTY OFTHE ACCUSED DURING THE PENDENCY OF THE APPEAL;

IV.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE ABUSE OF DISCRETIONWHEN IT IGNORED THE RECENT BAIL BOND EXTENSION ATTACHED TO THE MOTION FORRECONSIDERATION FILED BY THE PETITIONER;

V.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE ABUSE OF DISCRETIONWHEN IT RULED THAT THE PETITIONER FAILED TO SUBMIT TO THE JURISDICTION OF THE COURT OR TOTHE CUSTODY OF LAW DESPITE THE BAIL BOND POSTED ON MAY 21, 1999; and

VI.

THE HONORABLE COURT OF APPEALS GRAVELY ERRED OR ACTED WITH GRAVE ABUSE OF DISCRETIONWHEN IT RULED THAT THERE WAS NO VALID BAIL BOND IN PLACE WHEN THE PETITIONER TOOK HISAPPEAL.

The bombardment of errors notwithstanding, only two issues are raised in this petition: 1) with theexception of the fifth assignment of error, all six can be encapsulated in one solitary question, that is,whether or not the Court of Appeals committed reversible error in dismissing the appeal in view ofpetitioners alleged failure to post a valid bail bond to secure his provisional liberty on appeal; and 2)whether or not petitioner failed to submit himself to the jurisdiction of the court or to the custody of the

law despite the posting of the subject bail bond.

The Courts Ruling

Petitioner faults the appellate court for expressing "x x x in its questioned resolutions that hereinpetitioner did not submit to the jurisdiction of the court or custody of the law, or that there was no validbail bond when the appeal was taken when the records of the case would readily prove the contrary."29 Inissuing said resolution, petitioner concludes that the Court of Appeals made "x x x no careful examinationof the records x x x." Petitioner rationalizes his deduction in the following manner:

x x x [T]he records of the case readily reveals (sic) that several pleadings were filed by the petitionerbefore the lower court even after the promulgation of judgment was made. Right after the promulgation of

the decision in the lower court, herein petitioner went to the court and posted a bail bond. If the posting ofthe bond which was approved by the same Regional Trial Court who rendered the decision subject ofappeal is not yet a submission to the jurisdiction of the court, then the respondent Hon. Court of Appealsmust have been thinking of another matter beyond the comprehension of the petitioner and obviouslyoutside the matters being contemplated by law and the Rules of Court.

Equally, petitioner further posits that:

x x x Although it is respectfully submitted that an accused shall be denied bail or his bail shall be cancelledif sentenced to an imprisonment exceeding six (6) years as provided in Section 5, Rule 114 of the Rules ofCourt, just the same, there must be a showing by the prosecution with notice to the accused of the factthat, the accused is a recidivist, has previously escaped from confinement, evaded sentence, has
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committed an offense while under probation, there are circumstances indicating the probability of flight ifreleased on bail, etc. But there was none of the said instances that may be attributable to hereinpetitioner.30

Respondent People, in contrast, counters that "x x x [a]lthough a personal bail bond dated May 21, 1999was executed in favor of petitioner by Mega Pacific Insurance Corporation two days after the promulgationof the Decision, there is nothing on record which shows that petitioner had surrendered, wasarrested or otherwise deprived of his liberty after the promulgation of the judgment of his conviction in hisabsence. x x x." To illustrate its point, respondent People cites the following facts: 1) the return of the

Warrant of Arrest issued on May 19, 1999 signed by P/Superintendent Ramon Flores De Jesus, Chief ofWarrant and Subpoena Section, which states in full:

Respectfully returned this unexecuted Warrant of Arrest for the reason that the address of the accused isnot within our area of responsibility. Further request that the warrant of Arrest be forwarded to the PoliceStation which has Jurisdiction over the address of the accused.

However, the name of the accused will be included in our list of wanted persons for our future reference.

2) the fact that six days after the decision of the RTC was promulgated, or on 25 May 1999, said courtrendered judgment against the bail bond issued by Eastern Assurance and Surety Corporation executed tosecure petitioners provisional liberty during the trial, for the bondsmans failure to produce petitioner

before the court, to wit:

In view of the failure of Eastern Insurance & Surety Corporation, bondsman of herein accused, to producethe herein accused within the period granted it by this Court, judgment is hereby rendered against saidbond in the amount of Seventeen Thousand (P17,000.00) Pesos.31

Respondent People explains that the first two facts make it improbable to conclude that there existed avalid bail bond securing petitioners provisional liberty even after conviction. Stated in another way,petitioners admission to bail presumes that the latter surrendered, was arrested or he had otherwisesubmitted himself under the custody of the law.

And, 3) "that petitioner belatedly attached a bond endorsement to his motion for reconsideration dated

November 7, 2002 submitted before the Court of Appeals, purportedly to extend the expired personalbond dated May 21, 1999 x x x, did not automatically confer on petitioner the benefits of an effective bailbond,"32 as petitioner made no extension of the previous personal bond before the same expired.

We disagree in petitioners assertions; hence, the petition must fail.

A definitive disposition of the issue relating to the existence and validity of petitioners bail bond on appealpresupposes that the latter was allowed by law to post bail notwithstanding the RTCs judgment ofconviction and the imposition of the penalty of imprisonment for an indeterminate period of nine (9) yearsand one (1) day as minimum of prision mayor to seventeen (17) years as maximum of reclusion temporal.

Section 5 of Rule 114 of the 1994 Rules of Court, as amended, intrinsically addresses the foregoing

prefatory matter viz:

SEC. 5. Bail, when discretionary. Upon conviction by the Regional Trial Court of an offense notpunishable by death, reclusion perpetua or life imprisonment, the court, on application, may admit theaccused to bail.

The court, in its discretion, may allow the accused to continue on provisional liberty under the same bailbond during the period to appeal subject to the consent of the bondsman.

If the court imposed a penalty of imprisonment exceeding six (6) years, but not more than twenty (20)years, the accused shall be denied bail, or his bail previously granted shall be cancelled, upon a showingby the prosecution, with notice to the accused, of the following or other similar circumstances:

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applicable legal principles. As when there is a concurrence of the enumerated circumstances and the rangeof penalty imposed, the prosecution must first be accorded an opportunity to object and present evidence,if necessary, with notice to the accused. It is on this basis that judicial discretion is balanced indetermining whether or not an accused-appellant should be admitted to bail pending appeal of hisconviction vis--vis the increased possibility or likelihood of flight.

Approval of an application for bail on appeal, absent the knowledge of the prosecution of such applicationor, at the very least, failing to allow it to object, is not the product of sound judicial discretion but ofimpulse and arbitrariness, not to mention violative of respondent Peoples right of procedural due process.

This is especially true in this case as a close scrutiny of the original records of the case at bar reveals thatpetitioner violated the conditions of his bail without valid justification his failure to appear before theRTC, despite due notice, on the day of the promulgation of the latters judgment, absent any justifiablereason. His absence was a clear contravention of the conditions of his bail bond to say the least. Asevidenced by the undertaking printed on the face of the bond issued by Eastern Insurance and SuretyCorporation and likewise required under Section 635 of Rule 120 of the Rules of Court, petitioner mustpresent himself before the court for the reading of the judgment of the RTC in order to render himself tothe execution thereof.

While, indeed, a medical certificate was hand delivered and filed by a certain Joey Perez, allegedly arepresentative of petitioner, stating therein the reason for the latters absence, the RTC found

insubstantial the explanation proffered. Appropriately, it ordered the promulgation of its judgment inabsentia. It also issued a bench warrant of arrest against petitioner.

Upon examination, the subject medical certificate36 merely states that petitioner was diagnosed to besuffering from hypertension. It failed to elucidate further any concomitant conditions necessitatingpetitioners physical incapability to present himself before the court even for an hour or two; thus, itconsidered the absence of petitioner unjustified. What's more, though notarized, the subject documentfailed to indicate evidence of affiants37 identity making its due execution doubtful.

Further, it should be recalled as well, that as early as 4 May 1999, petitioner and counsel had alreadybeen notified of the 19 May 1999 schedule of promulgation. The first having been postponed in view of theUrgent Motion to Cancel Promulgation (on 5 May 1999) filed by petitioners counsel.

Another telling evidence of the violation of petitioners original bail bond is revealed by the ProcessServers Return,38 indicated at the dorsal portion of the RTCs Produce Order, indicating petitioners changeof address without prior notice to the RTC, it states:

PROCESS SERVERS RETURN

This certifies that on the 17th day of May, (sic) 1999, undersigned return (sic) again to Fersal Apartellelocated at 130 Kalayaan Ave. (sic) Diliman, Quezon City for confirmation and indeed the addressee, ArnoldAlva, had no (sic) longer been residing nor holding office at the aforementioned address.

By failing to inform the RTC of his change of address, petitioner failed to hold himself amenable to the

orders and processes of the RTC. It was an unmistakable arrant breach of the conditions of his bail bond.

Prescinding from the above discussion, the conviction of petitioner to a period beyond six (6) years butless than twenty (20) years in tandem with attendant circumstances effectively violating his bail withoutvalid justification should have effectively precluded him from being admitted to bail on appeal.

The issue of the validity of petitioners bail bond on appeal having been laid to rest by Section 5 of Rule114 of the 1994 Rules of Court, as amended, petitioners alleged failure to post a bail bond on appeal is,therefore, inconsequential as, under the circumstances, he is disallowed by law to be admitted to bail onappeal. Thus, for all legal intents and purposes, there can be no other conclusion than that at the timepetitioner filed his notice of appeal and during the pendency of his appeal even until now he remainsat large, placing himself beyond the pale, and protection of the law.
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Inexorably, having jumped bail and eluded arrest until the present, the issue of whether or not petitionerhas lost his right to appeal his conviction now ensues.

The manner of review of petitioners conviction is governed by the Rules of Court. Appropriately, Rule 124of the Rules of Court presents the procedural requirements regarding appeals taken to the Court ofAppeals. Section 8 of said Rule finds application to the case at bar, viz:

SEC. 8. Dismissal of appeal for abandonment or failure to prosecute. The appellate court may, uponmotion of the appellee or its own motion and notice to the appellant, dismiss the appeal if the appellant

fails to file his brief within the time prescribed by this Rule, except in case the appellant is represented bya counsel de oficio.

The court may also, upon motion of the appellee or on its own motion, dismiss the appeal if the appellantescapes from prison or confinement or jumps bail or flees to a foreign country during the pendency of theappeal. [Emphasis supplied.]

By virtue of the second paragraph of the abovequoted provision, the act of jumping bail, amongotherthings, will result in the outright dismissal of petitioners appeal. As pointed out by the Court in thecase of People v. Mapalao,39 the reason for said rule is that:

[O]nce an accused escapes from prison or confinement or jumps bail or flees to a foreign country, he

losses his standing in court and unless he surrenders or submits to the jurisdiction of the court he isdeemed to have waived any right to seek relief from the court.

Thus, the Court of Appeals committed no reversible error in dismissing petitioners appeal. Within themeaning of the principles governing the prevailing criminal procedure, petitioner impliedly withdrew hisappeal by jumping bail and thereby made the judgment of the RTC final and executory.40

By putting himself beyond the reach and application of the legal processes of the land, petitioner revealedhis contempt of the law and placed himself in a position to speculate at his pleasure his chances for areversal. This, we cannot condone. Once more, by jumping bail, petitioner has waived his right to appeal.In the case ofPeople v. Ang Gioc,41 we enunciated that:

There are certain fundamental rights which cannot be waived even by the accused himself, but the right ofappeal is not one of them. This right is granted solely for the benefit of the accused. He may avail of it ornot, as he pleases. He may waive it either expressly or by implication. When the accused flees after thecase has been submitted to the court for decision, he will be deemed to have waived his right to appealfrom the judgment rendered against him x x x.

Coming now to the second issue of whether or not petitioner failed to submit himself to the jurisdiction ofthe court or to the custody of the law, despite the posting of the subject bail bond, petitioner argues thathis act of filing several pleadings after the promulgation of the RTCs judgment plus his filing of theapplication for his admission to bail should be considered a submission to the courts jurisdiction. Herationalizes that:

[T]he records of the case readily reveals that several pleadings were filed by the petitioner before thelower court even after the promulgation of judgment was made. Right after the promulgation of thedecision in the lower court, herein petitioner went to the court and posted a bail bond. If the posting of thebond which was approved by the same Regional Trial Court who rendered the decision subject of appeal isnot yet a submission to the jurisdiction of the court, then the respondent Hon. Court of Appeals must havebeen thinking of another matter beyond the comprehension of the petitioner and obviously outside thematters being contemplated by law and the Rules of Court.

For the resolution of the second issue, it should have been sufficient to state that for reasons stated in theforegoing discussion, the question posed has now become academic. However, to diminish the confusionbrought about by ostensibly equating the term "jurisdiction of the court (over the person of the accused)"with that of "custody of the law", it is fundamental to differentiate the two. The term:

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Custody of the law is accomplished either by arrest or voluntary surrender (citation omitted); while (theterm) jurisdiction over the person of the accused is acquired upon his arrest or voluntary appearance(citation omitted). One can be under the custody of the law but not yet subject to the jurisdiction of thecourt over his person, such as when a person arrested by virtue of a warrant files a motion beforearraignment to quash the warrant. On the other hand, one can be subject to the jurisdiction of the courtover his person, and yet not be in the custody of the law, such as when an accused escapes custody afterhis trial has commenced (citation omitted).42

Moreover, jurisdiction, once acquired, is not lost at the instance of parties, as when an accused escapes

from the custody of the law, but continues until the case is terminated.43 Evidently, petitioner is correct inthat there is no doubt that the RTC already acquired jurisdiction over the person of the accused petitioner when he appeared at the arraignment and pleaded not guilty to the crime charged notwithstanding thefact that he jumped bail and is now considered a fugitive.

As to whether or not petitioner has placed himself under the custody of the CA, alas, we cannot say thesame for "[b]eing in the custody of the law signifies restraint on the person, who is thereby deprived of hisown will and liberty, binding him to become obedient to the will of the law (citation omitted). Custody ofthe law is literally custody over the body of the accused. It includes, but is not limited to, detention."44 Inthe case at bar, petitioner, being a fugitive, until and unless he submits himself to the custody of th

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