Rule 111

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 145391            August 26, 2002

AVELINO CASUPANAN and ROBERTO CAPITULO, petitioners, vs.MARIO LLAVORE LAROYA, respondent.

CARPIO, J.:

The Case

This is a petition for review on certiorari to set aside the Resolution1 dated December 28, 1999 dismissing the petition for certiorari and the Resolution2 dated August 24, 2000 denying the motion for reconsideration, both issued by the Regional Trial Court of Capas, Tarlac, Branch 66, in Special Civil Action No. 17-C (99).

The Facts

Two vehicles, one driven by respondent Mario Llavore Laroya ("Laroya" for brevity) and the other owned by petitioner Roberto Capitulo ("Capitulo" for brevity) and driven by petitioner Avelino Casupanan ("Casupanan" for brevity), figured in an accident. As a result, two cases were filed with the Municipal Circuit Trial Court ("MCTC" for brevity) of Capas, Tarlac. Laroya filed a criminal case against Casupanan for reckless imprudence resulting in damage to property, docketed as Criminal Case No. 002-99. On the other hand, Casupanan and Capitulo filed a civil case against Laroya for quasi-delict, docketed as Civil Case No. 2089.

When the civil case was filed, the criminal case was then at its preliminary investigation stage. Laroya, defendant in the civil case, filed a motion to dismiss the civil case on the ground of forum-shopping considering the pendency of the criminal case. The MCTC granted the motion in the Order of March 26, 1999 and dismissed the civil case.

On Motion for Reconsideration, Casupanan and Capitulo insisted that the civil case is a separate civil action which can proceed independently of the criminal case. The MCTC denied the motion for reconsideration in the Order of May 7, 1999. Casupanan and Capitulo filed a petition for certiorari under Rule 65 before the Regional Trial Court ("Capas RTC" for brevity) of Capas, Tarlac, Branch 66,3 assailing the MCTC’s Order of dismissal.

The Trial Court’s Ruling

The Capas RTC rendered judgment on December 28, 1999 dismissing the petition for certiorari for lack of merit. The Capas RTC ruled that the order of dismissal issued by the MCTC is a final order which disposes of the case and therefore the proper remedy should have been an appeal. The Capas RTC further held that a special civil action for certiorari is not a substitute for a lost appeal. Finally, the Capas RTC declared that even on the premise that the MCTC erred in dismissing the civil case, such error is a pure error of judgment and not an abuse of discretion.

Casupanan and Capitulo filed a Motion for Reconsideration but the Capas RTC denied the same in the Resolution of August 24, 2000.

Hence, this petition.

The Issue

The petition premises the legal issue in this wise:

"In a certain vehicular accident involving two parties, each one of them may think and believe that the accident was caused by the fault of the other. x x x [T]he first party, believing himself to be the aggrieved party, opted to file a criminal case for reckless imprudence against the second party. On the other hand, the second party, together with his operator, believing themselves to be the real aggrieved parties, opted in turn to file a civil case for quasi-delict against the first party who is the very private complainant in the criminal case."4

Thus, the issue raised is whether an accused in a pending criminal case for reckless imprudence can validly file, simultaneously and independently, a separate civil action for quasi-delict against the private complainant in the criminal case.

The Court’s Ruling

Casupanan and Capitulo assert that Civil Case No. 2089, which the MCTC dismissed on the ground of forum-shopping, constitutes a counterclaim in the criminal case. Casupanan and Capitulo argue that if the accused in a criminal case has a counterclaim against the private complainant, he may file the counterclaim in a separate civil action at the proper time. They contend that an action on quasi-delict is different from an action resulting from the crime of reckless imprudence, and an accused in a criminal case can be an aggrieved party in a civil case arising from the same incident. They maintain that under Articles 31 and 2176 of the Civil Code, the civil case can proceed independently of the criminal action. Finally, they point out that Casupanan was not the only one who filed the independent civil action based on quasi-delict but also Capitulo, the owner-operator of the vehicle, who was not a party in the criminal case.

In his Comment, Laroya claims that the petition is fatally defective as it does not state the real antecedents. Laroya further alleges that Casupanan and Capitulo forfeited their right to question the order of dismissal when they failed to avail of the proper remedy of appeal. Laroya argues that there is no question of law to be resolved as the order of dismissal is already final and a petition for certiorari is not a substitute for a lapsed appeal.

In their Reply, Casupanan and Capitulo contend that the petition raises the legal question of whether there is forum-shopping since they filed only one action - the independent civil action for quasi-delict against Laroya.

Nature of the Order of Dismissal

The MCTC dismissed the civil action for quasi-delict on the ground of forum-shopping under Supreme Court Administrative Circular No. 04-94. The MCTC did not state in its order of dismissal5 that the dismissal was with prejudice. Under the Administrative Circular, the order of dismissal is without prejudice to refiling the complaint, unless the order of dismissal expressly states it is with prejudice.6 Absent a declaration that the dismissal is with prejudice, the same is deemed without prejudice. Thus, the MCTC’s dismissal, being silent on the matter, is a dismissal without prejudice.

Section 1 of Rule 417 provides that an order dismissing an action without prejudice is not appealable. The remedy of the aggrieved party is to file a special civil action under Rule 65. Section 1 of Rule 41 expressly states that "where the judgment or final order is not appealable, the aggrieved party may file an appropriate special civil action under Rule 65." Clearly, the Capas RTC’s order dismissing the petition for certiorari, on the ground that the proper remedy is an ordinary appeal, is erroneous.

Forum-Shopping

The essence of forum-shopping is the filing of multiple suits involving the same parties for the same cause of action, either simultaneously or successively, to secure a favorable judgment.8 Forum-shopping is present when in the two or more cases pending, there is identity of parties, rights of action and reliefs sought.9 However, there is no forum-shopping in the instant case because the law and the rules expressly allow the filing of a separate civil action which can proceed independently of the criminal action.

Laroya filed the criminal case for reckless imprudence resulting in damage to property based on the Revised Penal Code while Casupanan and Capitulo filed the civil action for damages based on Article 2176 of the Civil Code. Although these two actions arose from the same act or omission, they have different causes of action. The criminal case is based on culpa criminal punishable under the Revised Penal Code while the civil case is based on culpa aquiliana actionable under Articles 2176 and 2177 of the Civil Code. These articles on culpa aquiliana read:

"Art. 2176. Whoever by act or omission causes damage to another, there being fault or negligence, is obliged to pay for the damage done. Such fault or negligence, if there is no pre-existing contractual relation between the parties, is called a quasi-delict and is governed by the provisions of this Chapter.

Art. 2177. Responsibility for fault or negligence under the preceding article is entirely separate and distinct from the civil liability arising from negligence under the Penal Code. But the plaintiff cannot recover damages twice for the same act or omission of the defendant."

Any aggrieved person can invoke these articles provided he proves, by preponderance of evidence, that he has suffered damage because of the fault or negligence of another. Either the private complainant or the accused can file a separate civil action under these articles. There is nothing in the law or rules that state only the private complainant in a criminal case may invoke these articles.

Moreover, paragraph 6, Section 1, Rule 111 of the 2000 Rules on Criminal Procedure ("2000 Rules" for brevity) expressly requires the accused to litigate his counterclaim in a separate civil action, to wit:

"SECTION 1. Institution of criminal and civil actions. – (a) x x x.

No counterclaim, cross-claim or third-party complaint may be filed by the accused in the criminal case, but any cause of action which could have been the subject thereof may be litigated in a separate civil action." (Emphasis supplied)

Since the present Rules require the accused in a criminal action to file his counterclaim in a separate civil action, there can be no forum-shopping if the accused files such separate civil action.

Filing of a separate civil action

Section 1, Rule 111 of the 1985 Rules on Criminal Procedure ("1985 Rules" for brevity), as amended in 1988, allowed the filing of a separate civil action independently of the criminal action provided the offended party reserved the right to file such civil action. Unless the offended party reserved the civil action before the presentation of the evidence for the prosecution, all civil actions arising from the same

act or omission were deemed "impliedly instituted" in the criminal case. These civil actions referred to the recovery of civil liability ex-delicto, the recovery of damages for quasi-delict, and the recovery of damages for violation of Articles 32, 33 and 34 of the Civil Code on Human Relations.

Thus, to file a separate and independent civil action for quasi-delict under the 1985 Rules, the offended party had to reserve in the criminal action the right to bring such action. Otherwise, such civil action was deemed "impliedly instituted" in the criminal action. Section 1, Rule 111 of the 1985 Rules provided as follows:

"Section 1. – Institution of criminal and civil actions. – When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

A waiver of any of the civil actions extinguishes the others. The institution of, or the reservation of the right to file, any of said civil actions separately waives the others.

The reservation of the right to institute the separate civil actions shall be made before the prosecution starts to present its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

In no case may the offended party recover damages twice for the same act or omission of the accused.

x x x." (Emphasis supplied)

Section 1, Rule 111 of the 1985 Rules was amended on December 1, 2000 and now provides as follows:

"SECTION 1. Institution of criminal and civil actions. – (a) When a criminal action is instituted, the civil action for the recovery of civil liability arising from the offense charged shall be deemed instituted with the criminal action unless the offended party waives the civil action, reserves the right to institute it separately or institutes the civil action prior to the criminal action.

The reservation of the right to institute separately the civil action shall be made before the prosecution starts presenting its evidence and under circumstances affording the offended party a reasonable opportunity to make such reservation.

x x x

(b) x x x

Where the civil action has been filed separately and trial thereof has not yet commenced, it may be consolidated with the criminal action upon application with the court trying the latter case. If the application is granted, the trial of both actions shall proceed in accordance with section 2 of this rule governing consolidation of the civil and criminal actions." (Emphasis supplied)

Under Section 1 of the present Rule 111, what is "deemed instituted" with the criminal action is only the action to recover civil liability arising from the crime or ex-delicto. All the other civil actions under Articles 32, 33, 34 and 2176 of the Civil Code are no longer "deemed instituted," and may be filed separately and

prosecuted independently even without any reservation in the criminal action. The failure to make a reservation in the criminal action is not a waiver of the right to file a separate and independent civil action based on these articles of the Civil Code. The prescriptive period on the civil actions based on these articles of the Civil Code continues to run even with the filing of the criminal action. Verily, the civil actions based on these articles of the Civil Code are separate, distinct and independent of the civil action "deemed instituted" in the criminal action.10

Under the present Rule 111, the offended party is still given the option to file a separate civil action to recover civil liability ex-delicto by reserving such right in the criminal action before the prosecution presents its evidence. Also, the offended party is deemed to make such reservation if he files a separate civil action before filing the criminal action. If the civil action to recover civil liability ex-delicto is filed separately but its trial has not yet commenced, the civil action may be consolidated with the criminal action. The consolidation under this Rule does not apply to separate civil actions arising from the same act or omission filed under Articles 32, 33, 34 and 2176 of the Civil Code.11

Suspension of the Separate Civil Action

Under Section 2, Rule 111 of the amended 1985 Rules, a separate civil action, if reserved in the criminal action, could not be filed until after final judgment was rendered in the criminal action. If the separate civil action was filed before the commencement of the criminal action, the civil action, if still pending, was suspended upon the filing of the criminal action until final judgment was rendered in the criminal action. This rule applied only to the separate civil action filed to recover liability ex-delicto. The rule did not apply to independent civil actions based on Articles 32, 33, 34 and 2176 of the Civil Code, which could proceed independently regardless of the filing of the criminal action.

The amended provision of Section 2, Rule 111 of the 2000 Rules continues this procedure, to wit:

"SEC. 2. When separate civil action is suspended. – After the criminal action has been commenced, the separate civil action arising therefrom cannot be instituted until final judgment has been entered in the criminal action.

If the criminal action is filed after the said civil action has already been instituted, the latter shall be suspended in whatever stage it may be found before judgment on the merits. The suspension shall last until final judgment is rendered in the criminal action. Nevertheless, before judgment on the merits is rendered in the civil action, the same may, upon motion of the offended party, be consolidated with the criminal action in the court trying the criminal action. In case of consolidation, the evidence already adduced in the civil action shall be deemed automatically reproduced in the criminal action without prejudice to the right of the prosecution to cross-examine the witnesses presented by the offended party in the criminal case and of the parties to present additional evidence. The consolidated criminal and civil actions shall be tried and decided jointly.

During the pendency of the criminal action, the running of the period of prescription of the civil action which cannot be instituted separately or whose proceeding has been suspended shall be tolled.

x x x." (Emphasis supplied)

Thus, Section 2, Rule 111 of the present Rules did not change the rule that the separate civil action, filed to recover damages ex-delicto, is suspended upon the filing of the criminal action. Section 2 of the present Rule 111 also prohibits the filing, after commencement of the criminal action, of a separate civil action to recover damages ex-delicto.

When civil action may proceed independently

The crucial question now is whether Casupanan and Capitulo, who are not the offended parties in the criminal case, can file a separate civil action against the offended party in the criminal case. Section 3, Rule 111 of the 2000 Rules provides as follows:

"SEC 3. When civil action may proceed independently. - In the cases provided in Articles 32, 33, 34 and 2176 of the Civil Code of the Philippines, the independent civil action may be brought by the offended party. It shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the offended party recover damages twice for the same act or omission charged in the criminal action." (Emphasis supplied)

Section 3 of the present Rule 111, like its counterpart in the amended 1985 Rules, expressly allows the "offended party" to bring an independent civil action under Articles 32, 33, 34 and 2176 of the Civil Code. As stated in Section 3 of the present Rule 111, this civil action shall proceed independently of the criminal action and shall require only a preponderance of evidence. In no case, however, may the "offended party recover damages twice for the same act or omission charged in the criminal action."

There is no question that the offended party in the criminal action can file an independent civil action for quasi-delict against the accused. Section 3 of the present Rule 111 expressly states that the "offended party" may bring such an action but the "offended party" may not recover damages twice for the same act or omission charged in the criminal action. Clearly, Section 3 of Rule 111 refers to the offended party in the criminal action, not to the accused.

Casupanan and Capitulo, however, invoke the ruling in Cabaero vs. Cantos12 where the Court held that the accused therein could validly institute a separate civil action for quasi-delict against the private complainant in the criminal case. In Cabaero, the accused in the criminal case filed his Answer with Counterclaim for malicious prosecution. At that time the Court noted the "absence of clear-cut rules governing the prosecution on impliedly instituted civil actions and the necessary consequences and implications thereof." Thus, the Court ruled that the trial court should confine itself to the criminal aspect of the case and disregard any counterclaim for civil liability. The Court further ruled that the accused may file a separate civil case against the offended party "after the criminal case is terminated and/or in accordance with the new Rules which may be promulgated." The Court explained that a cross-claim, counterclaim or third-party complaint on the civil aspect will only unnecessarily complicate the proceedings and delay the resolution of the criminal case.

Paragraph 6, Section 1 of the present Rule 111 was incorporated in the 2000 Rules precisely to address the lacuna mentioned in Cabaero. Under this provision, the accused is barred from filing a counterclaim, cross-claim or third-party complaint in the criminal case. However, the same provision states that "any cause of action which could have been the subject (of the counterclaim, cross-claim or third-party complaint) may be litigated in a separate civil action." The present Rule 111 mandates the accused to file his counterclaim in a separate civil actiosn which shall proceed independently of the criminal action, even as the civil action of the offended party is litigated in the criminal action.

Conclusion

Under Section 1 of the present Rule 111, the independent civil action in Articles 32, 33, 34 and 2176 of the Civil Code is not deemed instituted with the criminal action but may be filed separately by the offended party even without reservation. The commencement of the criminal action does not suspend the prosecution of the independent civil action under these articles of the Civil Code. The suspension in Section 2 of the present Rule 111 refers only to the civil action arising from the crime, if such civil action is reserved or filed before the commencement of the criminal action.

Thus, the offended party can file two separate suits for the same act or omission. The first a criminal case where the civil action to recover civil liability ex-delicto is deemed instituted, and the other a civil case for quasi-delict - without violating the rule on non-forum shopping. The two cases can proceed

simultaneously and independently of each other. The commencement or prosecution of the criminal action will not suspend the civil action for quasi-delict. The only limitation is that the offended party cannot recover damages twice for the same act or omission of the defendant. In most cases, the offended party will have no reason to file a second civil action since he cannot recover damages twice for the same act or omission of the accused. In some instances, the accused may be insolvent, necessitating the filing of another case against his employer or guardians.

Similarly, the accused can file a civil action for quasi-delict for the same act or omission he is accused of in the criminal case. This is expressly allowed in paragraph 6, Section 1 of the present Rule 111 which states that the counterclaim of the accused "may be litigated in a separate civil action." This is only fair for two reasons. First, the accused is prohibited from setting up any counterclaim in the civil aspect that is deemed instituted in the criminal case. The accused is therefore forced to litigate separately his counterclaim against the offended party. If the accused does not file a separate civil action for quasi-delict, the prescriptive period may set in since the period continues to run until the civil action for quasi-delict is filed.

Second, the accused, who is presumed innocent, has a right to invoke Article 2177 of the Civil Code, in the same way that the offended party can avail of this remedy which is independent of the criminal action. To disallow the accused from filing a separate civil action for quasi-delict, while refusing to recognize his counterclaim in the criminal case, is to deny him due process of law, access to the courts, and equal protection of the law.

Thus, the civil action based on quasi-delict filed separately by Casupanan and Capitulo is proper. The order of dismissal by the MCTC of Civil Case No. 2089 on the ground of forum-shopping is erroneous.

We make this ruling aware of the possibility that the decision of the trial court in the criminal case may vary with the decision of the trial court in the independent civil action. This possibility has always been recognized ever since the Civil Code introduced in 1950 the concept of an independent civil action under Articles 32, 33, 34 and 2176 of the Code. But the law itself, in Article 31 of the Code, expressly provides that the independent civil action "may proceed independently of the criminal proceedings and regardless of the result of the latter." In Azucena vs. Potenciano,13 the Court declared:

"x x x. There can indeed be no other logical conclusion than this, for to subordinate the civil action contemplated in the said articles to the result of the criminal prosecution — whether it be conviction or acquittal — would render meaningless the independent character of the civil action and the clear injunction in Article 31 that this action 'may proceed independently of the criminal proceedings and regardless of the result of the latter.’"

More than half a century has passed since the Civil Code introduced the concept of a civil action separate and independent from the criminal action although arising from the same act or omission. The Court, however, has yet to encounter a case of conflicting and irreconcilable decisions of trial courts, one hearing the criminal case and the other the civil action for quasi-delict. The fear of conflicting and irreconcilable decisions may be more apparent than real. In any event, there are sufficient remedies under the Rules of Court to deal with such remote possibilities.

One final point. The Revised Rules on Criminal Procedure took effect on December 1, 2000 while the MCTC issued the order of dismissal on December 28, 1999 or before the amendment of the rules. The Revised Rules on Criminal Procedure must be given retroactive effect considering the well-settled rule that -

"x x x statutes regulating the procedure of the court will be construed as applicable to actions pending and undetermined at the time of their passage. Procedural laws are retroactive in that sense and to that extent."14

WHEREFORE, the petition for review on certiorari is hereby GRANTED. The Resolutions dated December 28, 1999 and August 24, 2000 in Special Civil Action No. 17-C (99) are ANNULLED and Civil Case No. 2089 is REINSTATED.

SO ORDERED.

Puno, Panganiban, and Sandoval-Gutierrez*, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 122150            March 17, 2003

GEORGE (CULHI) HAMBON, petitioner, vs.COURT OF APPEALS AND VALENTINO U. CARANTES, respondents.

AUSTRIA-MARTINEZ, J.:

Petitioner George (Culhi) Hambon filed herein petition for review on certiorari, raising the following issues:

WHETHER OR NOT A CIVIL CASE FOR DAMAGES BASED ON AN INDEPENDENT CIVIL ACTION FALLING UNDER ARTICLE 32, 33, 34 AND 2176 OF THE NEW CIVIL CODE BE DULY DISMISSED FOR FAILURE TO MAKE RESERVATION TO FILE A SEPARATE CIVIL ACTION IN A CRIMINAL CASE FILED ARISING FROM THE SAME ACT OR OMISSION OF THE ACCUSED PURSUANT TO RULE 111, SECTION 1 OF THE RULES OF COURT, THE FAILURE TO MAKE RESERVATION BEING DUE TO THE FACT THAT THE CRIMINAL CASE WAS DISMISSED BEFORE THE PROSECUTION STARTED TO PRESENT EVIDENCE FOR FAILURE OF THE PRIVATE COMPLAINANT TO APPEAR DESPITE NOTICE

SHOULD A STRICT INTERPRETATION OF RULE 111, SECTION 1 OF THE RULES OF COURT WHICH INFRINGES ON A RIGHT OF A PARTY BASED ON A SUBSTANTIVE LAW BE PERMITTED WHEN TO DO SO WOULD DIMINISH, MODIFY AND/OR AMEND A SUBSTANTIVE RIGHT CONTRARY TO LAW.1

The factual background that led to the filing of the petition is as follows:

On June 6, 1989, the petitioner filed before the Regional Trial Court of Baguio (Branch 6), a complaint for damages2 for the injuries and expenses he sustained after the truck driven by the respondent bumped him on the night of December 9, 1985.3 In answer thereto, respondent contended that the criminal case arising from the same incident, Criminal Case No. 2049 for Serious Physical Injuries thru Reckless Imprudence, earlier filed on January 8, 1986,4 had already been provisionally dismissed by the Municipal Trial Court of Tuba, Benguet on March 23, 1987, due to petitioner’s lack of interest;5 and that the dismissal was with respect to both criminal and civil liabilities of respondent.6

After trial, the Regional Trial Court rendered a decision, dated December 18, 1991, ruling that the civil case was not barred by the dismissal of the criminal case, and that petitioner is entitled to damages. The dispositive portion of the RTC decision reads:

WHEREFORE, Judgment is hereby rendered, sentencing defendant Valentino Cerantes to pay plaintiff George Hambon the sum of P60,000.00 for hospitalization and medical expenses and P10,000.00 for native rituals, as Actual Damages; the sum of P10,000.00 as Moral Damages, P5,000.00 as Exemplary Damages and P5,000.00 as Attorney’s fees and costs.

SO ORDERED.7

On appeal,8 the Court of Appeals, in its decision promulgated on March 8, 1995,9 reversed and set aside the decision of the trial court, and dismissed petitioner’s complaint for damages.

According to the appellate court, since the petitioner did not make any reservation to institute a separate civil action for damages, it was impliedly instituted with the criminal case, and the dismissal of the criminal case carried with it the dismissal of the suit for damages, notwithstanding the fact that the dismissal was provisional as it amounted to an acquittal and had the effect of an adjudication on the merits. 10

Hence, herein petition for review on certiorari under Rule 45 of the Rules of Court.

Petitioner argues that the ruling in the case of Abellana v. Marave11 should be observed, i.e., a civil action for damages may be filed and proceed independently of the criminal action even without reservation to file the same has been made;12 and that the requirement of reservation, as provided in Rule 111 of the Rules of Court, practically diminished/amended/modified his substantial right.13

The petition must be denied.

Petitioner filed the complaint for damages on June 6, 1989. Hence, Section 1, Rule 111 of the 1985 Rules on Criminal Procedure, as amended in 1988,14 is the prevailing and governing law in this case, viz.:

SECTION 1. Institution of criminal and civil actions. – When a criminal action is instituted, the civil action for the recovery of civil liability is impliedly instituted with the criminal action, unless the offended party waives the civil action, reserves his right to institute it separately, or institutes the civil action prior to the criminal action.

Such civil action includes recovery of indemnity under the Revised Penal Code, and damages under Article 32, 33, 34 and 2176 of the Civil Code of the Philippines arising from the same act or omission of the accused.

. . .

Under the foregoing rule, civil actions to recover liability arising from crime (ex delicto) and under Articles 32, 33, 34 and 2176 of the Civil Code (quasi-delict) are deemed impliedly instituted with the criminal action unless waived, reserved or previously instituted.

Thus, in Maniago v. Court of Appeals,15 the Court ruled that the right to bring an action for damages under the Civil Code must be reserved, as required by Section 1, Rule 111, otherwise it should be dismissed;16 and that the reservation requirement does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of orderly procedure.17

In the Maniago case, petitioner Ruben Maniago was the owner of the bus driven by Herminio Andaya that figured in a vehicular accident with the jeepney owned by respondent Alfredo Boado. The petitioner therein initially sought for the suspension of the civil case for damages filed against him in view of the pendency of the criminal case for reckless imprudence resulting in damage to property and multiple physical injuries filed against his driver. The respondent, in the criminal case, did not reserve the right to bring the separate civil action against the petitioner or his driver. The criminal case was later dismissed

for the failure of the prosecution to prosecute its case. On appeal, the Court identified the issues as (1) whether the respondent can file a civil action for damages despite the absence of reservation; (2) whether the dismissal of the criminal case brought with it the dismissal of the civil action; and (3) whether the reservation requirement is substantive in character and beyond the rule-making power of the Court.18

The Court expounded:

. . . §1quite clearly requires that a reservation must be made to institute separately all civil actions for the recovery of civil liability, otherwise they will de deemed to have been instituted with the criminal case. … In other words the right of the injured party to sue separately for the recovery of the civil liability whether arising from crimes (ex delicto) or from quasi-delict under Art. 2176 of the Civil Code must be reserved otherwise they will de deemed instituted with the criminal action.

. . .

Contrary to private respondent’s contention, the requirement that before a separate civil action may be brought it must be reserved does not impair, diminish or defeat substantive rights, but only regulates their exercise in the general interest of procedure. The requirement is merely procedural in nature. For that matter the Revised Penal Code, by providing in Art. 100 that any person criminally liable is also civilly liable, gives the offended party the right to bring a separate civil action, yet no one has ever questioned the rule that such action must be reserved before it may be brought separately.19

While the Abellana case ruled that a reservation is not necessary, the 1988 amendment of the rule explicitly requires reservation of the civil action.

x x x Prior reservation is a condition sine qua non before any of these independent civil actions can be instituted and thereafter have a continuous determination apart from or simultaneous with the criminal action.

. . . Far from altering substantive rights, the primary purpose of the reservation is, to borrow the words of the Court in "Caños v. Peralta":

‘. . . to avoid multiplicity of suits, to guard against oppression and abuse, to prevent delays, to clear congested dockets, to simplify the work of the trial court; in short, the attainment of justice with the least expense and vexation to the parties-litigants.’20

Thus, herein petitioner Hambon should have reserved his right to separately institute the civil action for damages in Criminal Case No. 2049. Having failed to do so, Civil Case No. 1761-R for damages subsequently filed by him without prior reservation should be dismissed. With the dismissal of Criminal Case No. 2049, whatever civil action for the recovery of civil liability that was impliedly instituted therein was likewise dismissed.

WHEREFORE, the instant petition for review on certiorari is hereby DENIED for lack of merit, and the decision of the Court of Appeals dated March 8, 1995, is AFFIRMED in toto.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing and Callejo, Sr., JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

THIRD DIVISION

G.R. No. 184861               June 30, 2009

DREAMWORK CONSTRUCTION, INC., Petitioner, vs.CLEOFE S. JANIOLA and HON. ARTHUR A. FAMINI, Respondents.

D E C I S I O N

VELASCO, JR., J.:

The Case

Petitioner Dreamwork Construction, Inc. seeks the reversal of the August 26, 2008 Decision1 in SCA No. 08-0005 of the Regional Trial Court (RTC), Branch 253 in Las Piñas City. The Decision affirmed the Orders dated October 16, 20072 and March 12, 20083 in Criminal Case Nos. 55554-61 issued by the Metropolitan Trial Court (MTC), Branch 79 in Las Piñas City.

The Facts

On October 18, 2004, petitioner, through its President, Roberto S. Concepcion, and Vice-President for Finance and Marketing, Normandy P. Amora, filed a Complaint Affidavit dated October 5, 20044 for violation of Batas Pambansa Bilang 22 (BP 22) against private respondent Cleofe S. Janiola with the Office of the City Prosecutor of Las Piñas City. The case was docketed as I.S. No. 04-2526-33. Correspondingly, petitioner filed a criminal information for violation of BP 22 against private respondent with the MTC on February 2, 2005 docketed as Criminal Case Nos. 55554-61, entitled People of the Philippines v. Cleofe S. Janiola.

On September 20, 2006, private respondent, joined by her husband, instituted a civil complaint against petitioner by filing a Complaint dated August 20065 for the rescission of an alleged construction agreement between the parties, as well as for damages. The case was filed with the RTC, Branch 197 in Las Piñas City and docketed as Civil Case No. LP-06-0197. Notably, the checks, subject of the criminal cases before the MTC, were issued in consideration of the construction agreement.

Thereafter, on July 25, 2007, private respondent filed a Motion to Suspend Proceedings dated July 24, 20076 in Criminal Case Nos. 55554-61, alleging that the civil and criminal cases involved facts and issues similar or intimately related such that in the resolution of the issues in the civil case, the guilt or innocence of the accused would necessarily be determined. In other words, private respondent claimed that the civil case posed a prejudicial question as against the criminal cases.

Petitioner opposed the suspension of the proceedings in the criminal cases in an undated Comment/Opposition to Accused’s Motion to Suspend Proceedings based on Prejudicial Question7 on the grounds that: (1) there is no prejudicial question in this case as the rescission of the contract upon which the bouncing checks were issued is a separate and distinct issue from the issue of whether private respondent violated BP 22; and (2) Section 7, Rule 111 of the Rules of Court states that one of the elements of a prejudicial question is that "the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action"; thus, this element is missing in this case, the criminal case having preceded the civil case.

Later, the MTC issued its Order dated October 16, 2007, granting the Motion to Suspend Proceedings, and reasoned that:

Should the trial court declare the rescission of contract and the nullification of the checks issued as the same are without consideration, then the instant criminal cases for alleged violation of BP 22 must be dismissed. The belated filing of the civil case by the herein accused did not detract from the correctness of her cause, since a motion for suspension of a criminal action may be filed at any time before the prosecution rests (Section 6, Rule 111, Revised Rules of Court).8

In an Order dated March 12, 2008,9 the MTC denied petitioner’s Motion for Reconsideration dated November 29, 2007.

Petitioner appealed the Orders to the RTC with a Petition dated May 13, 2008. Thereafter, the RTC issued the assailed decision dated August 26, 2008, denying the petition. On the issue of the existence of a prejudicial question, the RTC ruled:

Additionally, it must be stressed that the requirement of a "previously" filed civil case is intended merely to obviate delays in the conduct of the criminal proceedings. Incidentally, no clear evidence of any intent to delay by private respondent was shown. The criminal proceedings are still in their initial stages when the civil action was instituted. And, the fact that the civil action was filed after the criminal action was instituted does not render the issues in the civil action any less prejudicial in character.10

Hence, we have this petition under Rule 45.

The Issue

WHETHER OR NOT THE COURT A QUO SERIOUSLY ERRED IN NOT PERCEIVING GRAVE ABUSE OF DISCRETION ON THE PART OF THE INFERIOR COURT, WHEN THE LATTER RULED TO SUSPEND PROCEEDINGS IN CRIM. CASE NOS. 55554-61 ON THE BASIS OF "PREJUDICIAL QUESTION" IN CIVIL CASE NO. LP-06-0197.11

The Court’s Ruling

This petition must be granted.

The Civil Action Must Precede the Filing of the

Criminal Action for a Prejudicial Question to Exist

Under the 1985 Rules on Criminal Procedure, as amended by Supreme Court Resolutions dated June 17, 1988 and July 7, 1988, the elements of a prejudicial question are contained in Rule 111, Sec. 5, which states:

SEC. 5. Elements of prejudicial question. — The two (2) essential elements of a prejudicial question are: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.

Thus, the Court has held in numerous cases12 that the elements of a prejudicial question, as stated in the above-quoted provision and in Beltran v. People,13 are:

The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (b) the resolution of such issue determines whether or not the criminal action may proceed.

On December 1, 2000, the 2000 Rules on Criminal Procedure, however, became effective and the above provision was amended by Sec. 7 of Rule 111, which applies here and now provides:

SEC. 7. Elements of prejudicial question.—The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed. (Emphasis supplied.)

Petitioner interprets Sec. 7(a) to mean that in order for a civil case to create a prejudicial question and, thus, suspend a criminal case, it must first be established that the civil case was filed previous to the filing of the criminal case. This, petitioner argues, is specifically to guard against the situation wherein a party would belatedly file a civil action that is related to a pending criminal action in order to delay the proceedings in the latter.

On the other hand, private respondent cites Article 36 of the Civil Code which provides:

Art. 36. Pre-judicial questions which must be decided before any criminal prosecution may be instituted or may proceed, shall be governed by rules of court which the Supreme Court shall promulgate and which shall not be in conflict with the provisions of this Code. (Emphasis supplied.)

Private respondent argues that the phrase "before any criminal prosecution may be instituted or may proceed" must be interpreted to mean that a prejudicial question exists when the civil action is filed either before the institution of the criminal action or during the pendency of the criminal action. Private respondent concludes that there is an apparent conflict in the provisions of the Rules of Court and the Civil Code in that the latter considers a civil case to have presented a prejudicial question even if the criminal case preceded the filing of the civil case.

We cannot agree with private respondent.

First off, it is a basic precept in statutory construction that a "change in phraseology by amendment of a provision of law indicates a legislative intent to change the meaning of the provision from that it originally had."14 In the instant case, the phrase, "previously instituted," was inserted to qualify the nature of the civil action involved in a prejudicial question in relation to the criminal action. This interpretation is further buttressed by the insertion of "subsequent" directly before the term criminal action. There is no other logical explanation for the amendments except to qualify the relationship of the civil and criminal actions, that the civil action must precede the criminal action.

Thus, this Court ruled in Torres v. Garchitorena15 that:

Even if we ignored petitioners’ procedural lapse and resolved their petition on the merits, we hold that Sandiganbayan did not abuse its discretion amounting to excess or lack of jurisdiction in denying their omnibus motion for the suspension of the proceedings pending final judgment in Civil Case No. 7160. Section 6, Rule lll of the Rules of Criminal Procedure, as amended, reads:

Sec. 6. Suspension by reason of prejudicial question. - A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.

Sec. 7. Elements of prejudicial question. - The elements of a prejudicial question are: (a) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent

criminal action, and (b) the resolution of such issue determines whether or not the criminal action may proceed.

Under the amendment, a prejudicial question is understood in law as that which must precede the criminal action and which requires a decision before a final judgment can be rendered in the criminal action with which said question is closely connected. The civil action must be instituted prior to the institution of the criminal action. In this case, the Information was filed with the Sandiganbayan ahead of the complaint in Civil Case No. 7160 filed by the State with the RTC in Civil Case No. 7160. Thus, no prejudicial question exists. (Emphasis supplied.)

Additionally, it is a principle in statutory construction that "a statute should be construed not only to be consistent with itself but also to harmonize with other laws on the same subject matter, as to form a complete, coherent and intelligible system."16 This principle is consistent with the maxim, interpretare et concordare leges legibus est optimus interpretandi modus or every statute must be so construed and harmonized with other statutes as to form a uniform system of jurisprudence.17

1 a vv p h i l

In other words, every effort must be made to harmonize seemingly conflicting laws. It is only when harmonization is impossible that resort must be made to choosing which law to apply.

In the instant case, Art. 36 of the Civil Code and Sec. 7 of Rule 111 of the Rules of Court are susceptible of an interpretation that would harmonize both provisions of law. The phrase "previously instituted civil action" in Sec. 7 of Rule 111 is plainly worded and is not susceptible of alternative interpretations. The clause "before any criminal prosecution may be instituted or may proceed" in Art. 36 of the Civil Code may, however, be interpreted to mean that the motion to suspend the criminal action may be filed during the preliminary investigation with the public prosecutor or court conducting the investigation, or during the trial with the court hearing the case.

This interpretation would harmonize Art. 36 of the Civil Code with Sec. 7 of Rule 111 of the Rules of Court but also with Sec. 6 of Rule 111 of the Civil Code, which provides for the situations when the motion to suspend the criminal action during the preliminary investigation or during the trial may be filed. Sec. 6 provides:

SEC. 6. Suspension by reason of prejudicial question.—A petition for suspension of the criminal action based upon the pendency of a prejudicial question in a civil action may be filed in the office of the prosecutor or the court conducting the preliminary investigation. When the criminal action has been filed in court for trial, the petition to suspend shall be filed in the same criminal action at any time before the prosecution rests.

Thus, under the principles of statutory construction, it is this interpretation of Art. 36 of the Civil Code that should govern in order to give effect to all the relevant provisions of law.

It bears pointing out that the circumstances present in the instant case indicate that the filing of the civil action and the subsequent move to suspend the criminal proceedings by reason of the presence of a prejudicial question were a mere afterthought and instituted to delay the criminal proceedings.

In Sabandal v. Tongco,18 we found no prejudicial question existed involving a civil action for specific performance, overpayment, and damages, and a criminal complaint for BP 22, as the resolution of the civil action would not determine the guilt or innocence of the accused in the criminal case. In resolving the case, we said:

Furthermore, the peculiar circumstances of the case clearly indicate that the filing of the civil case was a ploy to delay the resolution of the criminal cases. Petitioner filed the civil case three years after the institution of the criminal charges against him. Apparently, the civil action was instituted as an afterthought to delay the proceedings in the criminal cases.19

Here, the civil case was filed two (2) years after the institution of the criminal complaint and from the time that private respondent allegedly withdrew its equipment from the job site. Also, it is worth noting that the civil case was instituted more than two and a half (2 ½) years from the time that private respondent allegedly stopped construction of the proposed building for no valid reason. More importantly, the civil case praying for the rescission of the construction agreement for lack of consideration was filed more than three (3) years from the execution of the construction agreement.

Evidently, as in Sabandal, the circumstances surrounding the filing of the cases involved here show that the filing of the civil action was a mere afterthought on the part of private respondent and interposed for delay. And as correctly argued by petitioner, it is this scenario that Sec. 7 of Rule 111 of the Rules of Court seeks to prevent. Thus, private respondent’s positions cannot be left to stand.

The Resolution of the Civil Case Is Not Determinative of the Prosecution of the Criminal Action

In any event, even if the civil case here was instituted prior to the criminal action, there is, still, no prejudicial question to speak of that would justify the suspension of the proceedings in the criminal case.

To reiterate, the elements of a prejudicial question under Sec. 7 of Rule 111 of the Rules of Court are: (1) the previously instituted civil action involves an issue similar or intimately related to the issue raised in the subsequent criminal action; and (2) the resolution of such issue determines whether or not the criminal action may proceed.

Petitioner argues that the second element of a prejudicial question, as provided in Sec. 7 of Rule 111 of the Rules, is absent in this case. Thus, such rule cannot apply to the present controversy.

Private respondent, on the other hand, claims that if the construction agreement between the parties is declared null and void for want of consideration, the checks issued in consideration of such contract would become mere scraps of paper and cannot be the basis of a criminal prosecution.

We find for petitioner.

It must be remembered that the elements of the crime punishable under BP 22 are as follows:

(1) the making, drawing, and issuance of any check to apply for account or for value;

(2) the knowledge of the maker, drawer, or issuer that at the time of issue there are no sufficient funds in or credit with the drawee bank for the payment of such check in full upon its presentment; and

(3) the subsequent dishonor of the check by the drawee bank for insufficiency of funds or credit, or dishonor for the same reason had not the drawer, without any valid cause, ordered the bank to stop payment.20

Undeniably, the fact that there exists a valid contract or agreement to support the issuance of the check/s or that the checks were issued for valuable consideration does not make up the elements of the crime. Thus, this Court has held in a long line of cases21 that the agreement surrounding the issuance of dishonored checks is irrelevant to the prosecution for violation of BP 22. In Mejia v. People,22 we ruled:

It must be emphasized that the gravamen of the offense charge is the issuance of a bad check. The purpose for which the check was issued, the terms and conditions relating to its issuance, or any agreement surrounding such issuance are irrelevant to the prosecution and conviction of petitioner. To determine the reason for which checks are issued, or the terms and conditions for their issuance, will

greatly erode the faith the public reposes in the stability and commercial value of checks as currency substitutes, and bring havoc in trade and in banking communities. The clear intention of the framers of B.P. 22 is to make the mere act of issuing a worthless check malum prohibitum.

Lee v. Court of Appeals23 is even more poignant. In that case, we ruled that the issue of lack of valuable consideration for the issuance of checks which were later on dishonored for insufficient funds is immaterial to the success of a prosecution for violation of BP 22, to wit:

Third issue. Whether or not the check was issued on account or for value.

Petitioner’s claim is not feasible. We have held that upon issuance of a check, in the absence of evidence to the contrary, it is presumed that the same was issued for valuable consideration. Valuable consideration, in turn, may consist either in some right, interest, profit or benefit accruing to the party who makes the contract, or some forbearance, detriment, loss or some responsibility, to act, or labor, or service given, suffered or undertaken by the other side. It is an obligation to do, or not to do in favor of the party who makes the contract, such as the maker or indorser.

In this case, petitioner himself testified that he signed several checks in blank, the subject check included, in exchange for 2.5% interest from the proceeds of loans that will be made from said account. This is a valuable consideration for which the check was issued. That there was neither a pre-existing obligation nor an obligation incurred on the part of petitioner when the subject check was given by Bautista to private complainant on July 24, 1993 because petitioner was no longer connected with Unlad or Bautista starting July 1989, cannot be given merit since, as earlier discussed, petitioner failed to adequately prove that he has severed his relationship with Bautista or Unlad.

At any rate, we have held that what the law punishes is the mere act of issuing a bouncing check, not the purpose for which it was issued nor the terms and conditions relating to its issuance. This is because the thrust of the law is to prohibit the making of worthless checks and putting them into circulation.24 (Emphasis supplied.)

Verily, even if the trial court in the civil case declares that the construction agreement between the parties is void for lack of consideration, this would not affect the prosecution of private respondent in the criminal case. The fact of the matter is that private respondent indeed issued checks which were subsequently dishonored for insufficient funds. It is this fact that is subject of prosecution under BP 22.lawphil.net

Therefore, it is clear that the second element required for the existence of a prejudicial question, that the resolution of the issue in the civil action would determine whether the criminal action may proceed, is absent in the instant case. Thus, no prejudicial question exists and the rules on it are inapplicable to the case before us.

WHEREFORE, we GRANT this petition. We hereby REVERSE and SET ASIDE the August 26, 2008 Decision in SCA No. 08-0005 of the RTC, Branch 253 in Las Piñas City and the Orders dated October 16, 2007 and March 12, 2008 in Criminal Case Nos. 55554-61 of the MTC, Branch 79 in Las Piñas City. We order the MTC to continue with the proceedings in Criminal Case Nos. 55554-61 with dispatch.

No costs.

SO ORDERED.

Manliclic and Phil Rabbit v Calaunan (2007) – Jeep owned by Calaunan, driven by Mendoza collided with PRBLI bus driven by Manliclic. The front right side of the Philippine Rabbit Bus hit the rear left side of the jeep causing the latter to move to the shoulder on the right and then fall

on a ditch with water resulting to further extensive damage. Calaunan sustained injuries. Criminal case was filed against Manlilic. Calanuan filed for damages against PRBLI and Manliclic. PRBLI claims due diligence. CA acquitted Manliclic. Can Manliclic still be held liable for the collision and be found negligent notwithstanding the declaration of the CA that there was an absence of negligence on his part?

From the foregoing declaration of the Court of Appeals, it appears that petitioner Manliclic was acquitted not on reasonable doubt, but on the ground that he is not the author of the act complained of which is based on Section 2(b) of Rule 111 of the Rules of Criminal Procedure.

In spite of said ruling, petitioner Manliclic can still be held liable for the mishap. The afore-quoted section applies only to a civil action arising from crime or ex delicto and not to a civil action arising from quasi-delict or culpa aquiliana. The extinction of civil liability referred to in Par. (e) of Section 3, Rule 111 [now Section 2 (b) of Rule 111], refers exclusively to civil liability founded on Article 100 of the Revised Penal Code, whereas the civil liability for the same act considered as a quasi-delict only and not as a crime is not extinguished even by a declaration in the criminal case that the criminal act charged has not happened or has not been committed by the accused.

A quasi-delict or culpa aquiliana is a separate legal institution under the Civil Code with a substantivity all its own, and individuality that is entirely apart and independent from a delict or crime. In other words, if an accused is acquitted based on reasonable doubt on his guilt, his civil liability arising from the crime may be proved by preponderance of evidence only. However, if an accused is acquitted on the basis that he was not the author of the act or omission complained of (or that there is declaration in a final judgment that the fact from which the civil might arise did not exist), said acquittal closes the door to civil liability based on the crime or ex delicto. In this second instance, there being no crime or <span style="font-family:Calibri; font-size

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. No. 102007 September 2, 1994

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.ROGELIO BAYOTAS y CORDOVA, accused-appellant.

The Solicitor General for plaintiff-appellee.

Public Attorney's Office for accused-appellant.

 

ROMERO, J.:

In Criminal Case No. C-3217 filed before Branch 16, RTC Roxas City, Rogelio Bayotas y Cordova was charged with Rape and eventually convicted thereof on June 19, 1991 in a decision penned by Judge Manuel E. Autajay. Pending appeal of his conviction, Bayotas died on February 4, 1992 at the National Bilibid Hospital due to cardio respiratory arrest secondary to hepatic encephalopathy secondary to hipato carcinoma gastric malingering. Consequently, the Supreme Court in its Resolution of May 20, 1992 dismissed the criminal aspect of the appeal. However, it required the Solicitor General to file its comment with regard to Bayotas' civil liability arising from his commission of the offense charged.

In his comment, the Solicitor General expressed his view that the death of accused-appellant did not extinguish his civil liability as a result of his commission of the offense charged. The Solicitor General, relying on the case of People v. Sendaydiego 1 insists that the appeal should still be resolved for the purpose of reviewing his conviction by the lower court on which the civil liability is based.

Counsel for the accused-appellant, on the other hand, opposed the view of the Solicitor General arguing that the death of the accused while judgment of conviction is pending appeal extinguishes both his criminal and civil penalties. In support of his position, said counsel invoked the ruling of the Court of Appeals in People v. Castillo and Ocfemia 2 which held that the civil obligation in a criminal case takes root in the criminal liability and, therefore, civil liability is extinguished if accused should die before final judgment is rendered.

We are thus confronted with a single issue: Does death of the accused pending appeal of his conviction extinguish his civil liability?

In the aforementioned case of People v. Castillo, this issue was settled in the affirmative. This same issue posed therein was phrased thus: Does the death of Alfredo Castillo affect both his criminal responsibility and his civil liability as a consequence of the alleged crime?

It resolved this issue thru the following disquisition:

Article 89 of the Revised Penal Code is the controlling statute. It reads, in part:

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to the pecuniary penalties liability therefor is extinguished only when the death of the offender occurs before final judgment;

With reference to Castillo's criminal liability, there is no question. The law is plain. Statutory construction is unnecessary. Said liability is extinguished.

The civil liability, however, poses a problem. Such liability is extinguished only when the death of the offender occurs before final judgment. Saddled upon us is the task of ascertaining the legal import of the term "final judgment." Is it final judgment as contradistinguished from an interlocutory order? Or, is it a judgment which is final and executory?

We go to the genesis of the law. The legal precept contained in Article 89 of the Revised Penal Code heretofore transcribed is lifted from Article 132 of the Spanish El Codigo Penal de 1870 which, in part, recites:

La responsabilidad penal se extingue.

1. Por la muerte del reo en cuanto a las penas personales siempre, y respecto a las pecuniarias, solo cuando a su fallecimiento no hubiere recaido sentencia firme.

xxx xxx xxx

The code of 1870 . . . it will be observed employs the term "sentencia firme." What is "sentencia firme" under the old statute?

XXVIII Enciclopedia Juridica Española, p. 473, furnishes the ready answer: It says:

SENTENCIA FIRME. La sentencia que adquiere la fuerza de las definitivas por no haberse utilizado por las partes litigantes recurso alguno contra ella dentro de los terminos y plazos legales concedidos al efecto.

"Sentencia firme" really should be understood as one which is definite. Because, it is only when judgment is such that, as Medina y Maranon puts it, the crime is confirmed — "en condena determinada;" or, in the words of Groizard, the guilt of the accused becomes — "una verdad legal." Prior thereto, should the accused die, according to Viada, "no hay legalmente, en tal caso, ni reo, ni delito, ni responsabilidad criminal de ninguna clase." And, as Judge Kapunan well explained, when a defendant dies before judgment becomes executory, "there cannot be any determination by final judgment whether or not the felony upon which the civil action might arise exists," for the simple reason that "there is no party defendant." (I Kapunan, Revised Penal Code, Annotated, p. 421. Senator Francisco holds the same view. Francisco, Revised Penal Code, Book One, 2nd ed., pp. 859-860)

The legal import of the term "final judgment" is similarly reflected in the Revised Penal Code. Articles 72 and 78 of that legal body mention the term "final judgment" in the sense that it is already enforceable. This also brings to mind Section 7, Rule 116 of the Rules of Court which states that a judgment in a criminal case becomes final "after the lapse of the period for perfecting an appeal or when the sentence has been partially or totally satisfied or served, or the defendant has expressly waived in writing his right to appeal."

By fair intendment, the legal precepts and opinions here collected funnel down to one positive conclusion: The term final judgment employed in the Revised Penal Code means judgment beyond recall. Really, as long as a judgment has not become executory, it cannot be truthfully said that defendant is definitely guilty of the felony charged against him.

Not that the meaning thus given to final judgment is without reason. For where, as in this case, the right to institute a separate civil action is not reserved, the decision to be rendered must, of necessity, cover "both the criminal and the civil aspects of the case." People vs. Yusico (November 9, 1942), 2 O.G., No. 100, p. 964. See also: People vs. Moll, 68 Phil., 626, 634; Francisco, Criminal Procedure, 1958 ed., Vol. I, pp. 234, 236. Correctly, Judge Kapunan observed that as "the civil action is based solely on the felony committed and of which the offender might be found guilty, the death of the offender extinguishes the civil liability." I Kapunan, Revised Penal Code, Annotated, supra.

Here is the situation obtaining in the present case: Castillo's criminal liability is out. His civil liability is sought to be enforced by reason of that criminal liability. But then, if we

dismiss, as we must, the criminal action and let the civil aspect remain, we will be faced with the anomalous situation whereby we will be called upon to clamp civil liability in a case where the source thereof — criminal liability — does not exist. And, as was well stated in Bautista, et al. vs. Estrella, et al., CA-G.R. No. 19226-R, September 1, 1958, "no party can be found and held criminally liable in a civil suit," which solely would remain if we are to divorce it from the criminal proceeding."

This ruling of the Court of Appeals in the Castillo case 3 was adopted by the Supreme Court in the cases of People of the Philippines v. Bonifacio Alison, et al., 4 People of the Philippines v. Jaime Jose, et al. 5 and People of the Philippines v. Satorre 6 by dismissing the appeal in view of the death of the accused pending appeal of said cases.

As held by then Supreme Court Justice Fernando in the Alison case:

The death of accused-appellant Bonifacio Alison having been established, and considering that there is as yet no final judgment in view of the pendency of the appeal, the criminal and civil liability of the said accused-appellant Alison was extinguished by his death (Art. 89, Revised Penal Code; Reyes' Criminal Law, 1971 Rev. Ed., p. 717, citing People v. Castillo and Ofemia C.A., 56 O.G. 4045); consequently, the case against him should be dismissed.

On the other hand, this Court in the subsequent cases of Buenaventura Belamala v. Marcelino Polinar 7 and Lamberto Torrijos v. The Honorable Court of Appeals 8 ruled differently. In the former, the issue decided by this court was: Whether the civil liability of one accused of physical injuries who died before final judgment is extinguished by his demise to the extent of barring any claim therefore against his estate. It was the contention of the administrator-appellant therein that the death of the accused prior to final judgment extinguished all criminal and civil liabilities resulting from the offense, in view of Article 89, paragraph 1 of the Revised Penal Code. However, this court ruled therein:

We see no merit in the plea that the civil liability has been extinguished, in view of the provisions of the Civil Code of the Philippines of 1950 (Rep. Act No. 386) that became operative eighteen years after the revised Penal Code. As pointed out by the Court below, Article 33 of the Civil Code establishes a civil action for damages on account of physical injuries, entirely separate and distinct from the criminal action.

Art. 33. In cases of defamation, fraud, and physical injuries, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution, and shall require only a preponderance of evidence.

Assuming that for lack of express reservation, Belamala's civil action for damages was to be considered instituted together with the criminal action still, since both proceedings were terminated without final adjudication, the civil action of the offended party under Article 33 may yet be enforced separately.

In Torrijos, the Supreme Court held that:

xxx xxx xxx

It should be stressed that the extinction of civil liability follows the extinction of the criminal liability under Article 89, only when the civil liability arises from the criminal act as its only basis. Stated differently, where the civil liability does not exist independently of

the criminal responsibility, the extinction of the latter by death, ipso facto extinguishes the former, provided, of course, that death supervenes before final judgment. The said principle does not apply in instant case wherein the civil liability springs neither solely nor originally from the crime itself but from a civil contract of purchase and sale. (Emphasis ours)

xxx xxx xxx

In the above case, the court was convinced that the civil liability of the accused who was charged with estafa could likewise trace its genesis to Articles 19, 20 and 21 of the Civil Code since said accused had swindled the first and second vendees of the property subject matter of the contract of sale. It therefore concluded: "Consequently, while the death of the accused herein extinguished his criminal liability including fine, his civil liability based on the laws of human relations remains."

Thus it allowed the appeal to proceed with respect to the civil liability of the accused, notwithstanding the extinction of his criminal liability due to his death pending appeal of his conviction.

To further justify its decision to allow the civil liability to survive, the court relied on the following ratiocination: Since Section 21, Rule 3 of the Rules of Court 9 requires the dismissal of all money claims against the defendant whose death occurred prior to the final judgment of the Court of First Instance (CFI), then it can be inferred that actions for recovery of money may continue to be heard on appeal, when the death of the defendant supervenes after the CFI had rendered its judgment. In such case, explained this tribunal, "the name of the offended party shall be included in the title of the case as plaintiff-appellee and the legal representative or the heirs of the deceased-accused should be substituted as defendants-appellants."

It is, thus, evident that as jurisprudence evolved from Castillo to Torrijos, the rule established was that the survival of the civil liability depends on whether the same can be predicated on sources of obligations other than delict. Stated differently, the claim for civil liability is also extinguished together with the criminal action if it were solely based thereon, i.e., civil liability ex delicto.

However, the Supreme Court in People v. Sendaydiego, et al. 10 departed from this long-established principle of law. In this case, accused Sendaydiego was charged with and convicted by the lower court of malversation thru falsification of public documents. Sendaydiego's death supervened during the pendency of the appeal of his conviction.

This court in an unprecedented move resolved to dismiss Sendaydiego's appeal but only to the extent of his criminal liability. His civil liability was allowed to survive although it was clear that such claim thereon was exclusively dependent on the criminal action already extinguished. The legal import of such decision was for the court to continue exercising appellate jurisdiction over the entire appeal, passing upon the correctness of Sendaydiego's conviction despite dismissal of the criminal action, for the purpose of determining if he is civilly liable. In doing so, this Court issued a Resolution of July 8, 1977 stating thus:

The claim of complainant Province of Pangasinan for the civil liability survived Sendaydiego because his death occurred after final judgment was rendered by the Court of First Instance of Pangasinan, which convicted him of three complex crimes of malversation through falsification and ordered him to indemnify the Province in the total sum of P61,048.23 (should be P57,048.23).

The civil action for the civil liability is deemed impliedly instituted with the criminal action in the absence of express waiver or its reservation in a separate action (Sec. 1, Rule 111 of the Rules of Court). The civil action for the civil liability is separate and distinct from the criminal action (People and Manuel vs. Coloma, 105 Phil. 1287; Roa vs. De la Cruz, 107 Phil. 8).

When the action is for the recovery of money and the defendant dies before final judgment in the Court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the Court of First Instance, the action survives him. It may be continued on appeal (Torrijos vs. Court of Appeals, L-40336, October 24, 1975; 67 SCRA 394).

The accountable public officer may still be civilly liable for the funds improperly disbursed although he has no criminal liability (U.S. vs. Elvina, 24 Phil. 230; Philippine National Bank vs. Tugab, 66 Phil. 583).

In view of the foregoing, notwithstanding the dismissal of the appeal of the deceased Sendaydiego insofar as his criminal liability is concerned, the Court Resolved to continue exercising appellate jurisdiction over his possible civil liability for the money claims of the Province of Pangasinan arising from the alleged criminal acts complained of, as if no criminal case had been instituted against him, thus making applicable, in determining his civil liability, Article 30 of the Civil Code . . . and, for that purpose, his counsel is directed to inform this Court within ten (10) days of the names and addresses of the decedent's heirs or whether or not his estate is under administration and has a duly appointed judicial administrator. Said heirs or administrator will be substituted for the deceased insofar as the civil action for the civil liability is concerned (Secs. 16 and 17, Rule 3, Rules of Court).

Succeeding cases 11 raising the identical issue have maintained adherence to our ruling in Sendaydiego; in other words, they were a reaffirmance of our abandonment of the settled rule that a civil liability solely anchored on the criminal (civil liability ex delicto) is extinguished upon dismissal of the entire appeal due to the demise of the accused.

But was it judicious to have abandoned this old ruling? A re-examination of our decision in Sendaydiego impels us to revert to the old ruling.

To restate our resolution of July 8, 1977 in Sendaydiego: The resolution of the civil action impliedly instituted in the criminal action can proceed irrespective of the latter's extinction due to death of the accused pending appeal of his conviction, pursuant to Article 30 of the Civil Code and Section 21, Rule 3 of the Revised Rules of Court.

Article 30 of the Civil Code provides:

When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.

Clearly, the text of Article 30 could not possibly lend support to the ruling in Sendaydiego. Nowhere in its text is there a grant of authority to continue exercising appellate jurisdiction over the accused's civil liability ex delicto when his death supervenes during appeal. What Article 30 recognizes is an alternative and separate civil action which may be brought to demand civil liability arising from a criminal offense independently of any criminal action. In the event that no criminal proceedings are instituted during the pendency of said civil case, the quantum of evidence needed to prove the criminal act will have to be that which is compatible with civil liability and that is, preponderance of evidence and not proof of guilt beyond reasonable doubt. Citing or invoking Article 30 to justify the survival of the civil action despite extinction of the criminal would in effect merely beg the question of whether civil liability ex delicto survives upon extinction of the criminal action due to death of the accused during appeal of his conviction. This is

because whether asserted in the criminal action or in a separate civil action, civil liability ex delicto is extinguished by the death of the accused while his conviction is on appeal. Article 89 of the Revised Penal Code is clear on this matter:

Art. 89. How criminal liability is totally extinguished. — Criminal liability is totally extinguished:

1. By the death of the convict, as to the personal penalties; and as to pecuniary penalties, liability therefor is extinguished only when the death of the offender occurs before final judgment;

xxx xxx xxx

However, the ruling in Sendaydiego deviated from the expressed intent of Article 89. It allowed claims for civil liability ex delicto to survive by ipso facto treating the civil action impliedly instituted with the criminal, as one filed under Article 30, as though no criminal proceedings had been filed but merely a separate civil action. This had the effect of converting such claims from one which is dependent on the outcome of the criminal action to an entirely new and separate one, the prosecution of which does not even necessitate the filing of criminal proceedings. 12 One would be hard put to pinpoint the statutory authority for such a transformation. It is to be borne in mind that in recovering civil liability ex delicto, the same has perforce to be determined in the criminal action, rooted as it is in the court's pronouncement of the guilt or innocence of the accused. This is but to render fealty to the intendment of Article 100 of the Revised Penal Code which provides that "every person criminally liable for a felony is also civilly liable." In such cases, extinction of the criminal action due to death of the accused pending appeal inevitably signifies the concomitant extinction of the civil liability. Mors Omnia Solvi. Death dissolves all things.

In sum, in pursuing recovery of civil liability arising from crime, the final determination of the criminal liability is a condition precedent to the prosecution of the civil action, such that when the criminal action is extinguished by the demise of accused-appellant pending appeal thereof, said civil action cannot survive. The claim for civil liability springs out of and is dependent upon facts which, if true, would constitute a crime. Such civil liability is an inevitable consequence of the criminal liability and is to be declared and enforced in the criminal proceeding. This is to be distinguished from that which is contemplated under Article 30 of the Civil Code which refers to the institution of a separate civil action that does not draw its life from a criminal proceeding. The Sendaydiego resolution of July 8, 1977, however, failed to take note of this fundamental distinction when it allowed the survival of the civil action for the recovery of civil liability ex delicto by treating the same as a separate civil action referred to under Article 30. Surely, it will take more than just a summary judicial pronouncement to authorize the conversion of said civil action to an independent one such as that contemplated under Article 30.

Ironically however, the main decision in Sendaydiego did not apply Article 30, the resolution of July 8, 1977 notwithstanding. Thus, it was held in the main decision:

Sendaydiego's appeal will be resolved only for the purpose of showing his criminal liability which is the basis of the civil liability for which his estate would be liable. 13

In other words, the Court, in resolving the issue of his civil liability, concomitantly made a determination on whether Sendaydiego, on the basis of evidenced adduced, was indeed guilty beyond reasonable doubt of committing the offense charged. Thus, it upheld Sendaydiego's conviction and pronounced the same as the source of his civil liability. Consequently, although Article 30 was not applied in the final determination of Sendaydiego's civil liability, there was a reopening of the criminal action already extinguished which served as basis for Sendaydiego's civil liability. We reiterate: Upon death of the accused pending appeal of his conviction, the criminal action is extinguished inasmuch as there is no longer a defendant to stand as the accused; the civil action instituted therein for recovery of civil liability ex delicto is ipso facto extinguished, grounded as it is on the criminal.

Section 21, Rule 3 of the Rules of Court was also invoked to serve as another basis for the Sendaydiego resolution of July 8, 1977. In citing Sec. 21, Rule 3 of the Rules of Court, the Court made the inference that civil actions of the type involved in Sendaydiego consist of money claims, the recovery of which may be continued on appeal if defendant dies pending appeal of his conviction by holding his estate liable therefor. Hence, the Court's conclusion:

"When the action is for the recovery of money" "and the defendant dies before final judgment in the court of First Instance, it shall be dismissed to be prosecuted in the manner especially provided" in Rule 87 of the Rules of Court (Sec. 21, Rule 3 of the Rules of Court).

The implication is that, if the defendant dies after a money judgment had been rendered against him by the Court of First Instance, the action survives him. It may be continued on appeal.

Sadly, reliance on this provision of law is misplaced. From the standpoint of procedural law, this course taken in Sendaydiego cannot be sanctioned. As correctly observed by Justice Regalado:

xxx xxx xxx

I do not, however, agree with the justification advanced in both Torrijos and Sendaydiego which, relying on the provisions of Section 21, Rule 3 of the Rules of Court, drew the strained implication therefrom that where the civil liability instituted together with the criminal liabilities had already passed beyond the judgment of the then Court of First Instance (now the Regional Trial Court), the Court of Appeals can continue to exercise appellate jurisdiction thereover despite the extinguishment of the component criminal liability of the deceased. This pronouncement, which has been followed in the Court's judgments subsequent and consonant to Torrijos and Sendaydiego, should be set aside and abandoned as being clearly erroneous and unjustifiable.

Said Section 21 of Rule 3 is a rule of civil procedure in ordinary civil actions. There is neither authority nor justification for its application in criminal procedure to civil actions instituted together with and as part of criminal actions. Nor is there any authority in law for the summary conversion from the latter category of an ordinary civil action upon the death of the offender. . . .

Moreover, the civil action impliedly instituted in a criminal proceeding for recovery of civil liability ex delicto can hardly be categorized as an ordinary money claim such as that referred to in Sec. 21, Rule 3 enforceable before the estate of the deceased accused.

Ordinary money claims referred to in Section 21, Rule 3 must be viewed in light of the provisions of Section 5, Rule 86 involving claims against the estate, which in Sendaydiego was held liable for Sendaydiego's civil liability. "What are contemplated in Section 21 of Rule 3, in relation to Section 5 of Rule 86, 14 are contractual money claims while the claims involved in civil liability ex delicto may include even the restitution of personal or real property." 15 Section 5, Rule 86 provides an exclusive enumeration of what claims may be filed against the estate. These are: funeral expenses, expenses for the last illness, judgments for money and claim arising from contracts, expressed or implied. It is clear that money claims arising from delict do not form part of this exclusive enumeration. Hence, there could be no legal basis in (1) treating a civil action ex delicto as an ordinary contractual money claim referred to in Section 21, Rule 3 of the Rules of Court and (2) allowing it to survive by filing a claim therefor before the estate of the deceased accused. Rather, it should be extinguished upon extinction of the criminal action engendered by the death of the accused pending finality of his conviction.

Accordingly, we rule: if the private offended party, upon extinction of the civil liability ex delicto desires to recover damages from the same act or omission complained of, he must subject to Section 1, Rule 111 16 (1985 Rules on Criminal Procedure as amended) file a separate civil action, this time predicated not on the felony previously charged but on other sources of obligation. The source of obligation upon which the separate civil action is premised determines against whom the same shall be enforced.

If the same act or omission complained of also arises from quasi-delict or may, by provision of law, result in an injury to person or property (real or personal), the separate civil action must be filed against the executor or administrator 17 of the estate of the accused pursuant to Sec. 1, Rule 87 of the Rules of Court:

Sec. 1. Actions which may and which may not be brought against executor or administrator. — No action upon a claim for the recovery of money or debt or interest thereon shall be commenced against the executor or administrator; but actions to recover real or personal property, or an interest therein, from the estate, or to enforce a lien thereon, and actions to recover damages for an injury to person or property, real or personal, may be commenced against him.

This is in consonance with our ruling in Belamala 18 where we held that, in recovering damages for injury to persons thru an independent civil action based on Article 33 of the Civil Code, the same must be filed against the executor or administrator of the estate of deceased accused and not against the estate under Sec. 5, Rule 86 because this rule explicitly limits the claim to those for funeral expenses, expenses for the last sickness of the decedent, judgment for money and claims arising from contract, express or implied. Contractual money claims, we stressed, refers only to purely personal obligations other than those which have their source in delict or tort.

Conversely, if the same act or omission complained of also arises from contract, the separate civil action must be filed against the estate of the accused, pursuant to Sec. 5, Rule 86 of the Rules of Court.

From this lengthy disquisition, we summarize our ruling herein:

1. Death of the accused pending appeal of his conviction extinguishes his criminal liability as well as the civil liability based solely thereon. As opined by Justice Regalado, in this regard, "the death of the accused prior to final judgment terminates his criminal liability and only the civil liability directly arising from and based solely on the offense committed, i.e., civil liability ex delicto in senso strictiore."

2. Corollarily, the claim for civil liability survives notwithstanding the death of accused, if the same may also be predicated on a source of obligation other than delict. 19 Article 1157 of the Civil Code enumerates these other sources of obligation from which the civil liability may arise as a result of the same act or omission:

a) Law 20

b) Contracts

c) Quasi-contracts

d) . . .

e) Quasi-delicts

3. Where the civil liability survives, as explained in Number 2 above, an action for recovery therefor may be pursued but only by way of filing a separate civil action and subject to Section 1, Rule 111 of the 1985

Rules on Criminal Procedure as amended. This separate civil action may be enforced either against the executor/administrator or the estate of the accused, depending on the source of obligation upon which the same is based as explained above.

4. Finally, the private offended party need not fear a forfeiture of his right to file this separate civil action by prescription, in cases where during the prosecution of the criminal action and prior to its extinction, the private-offended party instituted together therewith the civil action. In such case, the statute of limitations on the civil liability is deemed interrupted during the pendency of the criminal case, conformably with provisions of Article 1155 21 of the Civil Code, that should thereby avoid any apprehension on a possible privation of right by prescription. 22

Applying this set of rules to the case at bench, we hold that the death of appellant Bayotas extinguished his criminal liability and the civil liability based solely on the act complained of, i.e., rape. Consequently, the appeal is hereby dismissed without qualification.

WHEREFORE, the appeal of the late Rogelio Bayotas is DISMISSED with costs de oficio.

SO ORDERED.

Narvasa, C.J., Feliciano, Padilla, Bidin, Regalado, Davide, Jr., Bellosillo, Melo, Quiason, Puno, Vitug, Kapunan and Mendoza, JJ., concur.

Cruz, J., is on leave.

[G.R. No. 143044. July 14, 2005]

WILLIAM MADARANG and EVANS KHO, Petitioners, vs. HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, HON. OFELIA ARELLANO-MARQUEZ,

Presiding Judge of the METROPOLITAN TRIAL COURT OF QUEZON CITY, BRANCH 32 and JANICE YOUNG-

CHUA, Respondents.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

Before us is a petition for review on certiorari under Rule 45 of the Rules of Court which seeks the reversal of the Decision,[1] dated April 18, 2000, of the Court of Appeals (CA) in CA-G.R. SP No. 58038 dismissing petitioners' petition for certiorari.

The factual background of the case is as follows:

On February 11, 1994, private respondent Janice Young-Chua and her husband, Eduardo Chan-Chua, filed a complaint for replevin and damages against petitioners William Madarang and Evans Kho in the Regional Trial Court of Quezon City, docketed as Civil Case No. Q-94-19266 and raffled to Branch 84 (RTC, Branch 84). The complaint alleged that private respondent is the owner of a 1990 dark gray Kia Pride car, evidenced by Certificate of Registration No. 08605800[2] dated May 31, 1991; and that on January 29, 1994, petitioners, through force and intimidation, took possession of the subject car by virtue of a falsified Deed of Sale dated December 3, 1993 allegedly executed by private respondent in favor of petitioner Madarang.[3]chanroblesvirtuallawlibrary

On May 12, 1994, upon complaint of private respondent, petitioner Madarang was charged with Falsification of Public Document in the Metropolitan Trial Court of Quezon City (MeTC) which was docketed as Criminal Case No. 94-24930 and raffled to Branch 32.[4] On the same date, petitioners were charged with Grave Coercion in the same MeTC which was docketed as Criminal Case No. 94-24931, also raffled to Branch 32.[5] The cases were consolidated and jointly tried.

On August 8, 1996, a Motion to Suspend Criminal Proceedings on the ground of prejudicial question was filed by petitioner Madarang in the MeTC, claiming that the issues presented in the replevin case pending in RTC, Branch 84 are intimately related to the issues pending before the MeTC, the resolution of which would necessarily determine the guilt of the accused in the criminal case for falsification.[6]chanroblesvirtuallawlibrary

On October 1, 1996, the MeTC denied petitioner Madarang's motion to suspend proceedings on the ground that the decision in the civil case for replevin will not be determinative of the guilt of the accused in the criminal charge for falsification.[7]chanroblesvirtuallawlibrary

On March 7, 1997, RTC, Branch 84 dismissed the complaint for replevin upon finding that the deed of sale is genuine and that private respondent voluntarily surrendered possession of the car to the petitioners.[8] Private respondent filed a timely appeal with the CA, docketed as CA-G.R. CV No. 57597.

On June 13, 1997, petitioner Madarang filed a Motion to Dismiss the falsification case on the ground that the decision dismissing the replevin suit in RTC, Branch 84 involving the same parties absolved him of criminal liability in the falsification case.[9] On January 22, 1998, the MeTC granted the Motion to Dismiss of petitioner Madarang.[10] On February 27, 1998, a Motion for Reconsideration was filed by the prosecution on the ground that the dismissal was unwarranted since the decision dismissing the replevin suit in RTC, Branch 84 is not yet final and executory, as it is pending appeal before the CA and the accused deliberately omitted to send the private prosecutor a copy of said Motion to Dismiss.[11] On July 27, 1998, the MeTC recalled the dismissal of the case for falsification.[12]chanroblesvirtuallawlibrary

Petitioners filed a Second Omnibus Motion to Quash Criminal Case Nos. 94-24930 and 94-24931 on the ground that the findings of RTC, Branch 84 that the signature of private respondent in the deed of sale is not falsified and that private respondent voluntarily surrendered possession of the car to the petitioners bar the prosecution for falsification and grave coercion. Petitioners alleged that the findings of the RTC are binding and must be given due respect by the MeTC notwithstanding the appeal taken by private respondent.[13]chanroblesvirtuallawlibrary

In its Opposition, the prosecution alleged that: the motion to quash is a mere scrap of paper as it is contrary to Section 1, Rule 117 of the Rules of Court that a Motion to Quash must be filed before arraignment of accused and such failure to move to quash before entering his plea, accused is deemed to have waived his right to file the same; and, the replevin suit is an independent civil action, separate and distinct from these cases for falsification of public document and grave coercion.[14]chanroblesvirtuallawlibrary

On March 26, 1999, the MeTC denied petitioners' motion to quash, ruling that the decision rendered by the RTC, Branch 84 in the replevin case cannot absolve petitioners of the charges in the criminal cases as said decision has not attained finality since it is pending appeal before the CA; and that petitioners waived any grounds of a Motion to Quash pursuant to Section 1, Rule 117 of the Rules of Court.[15]chanroblesvirtuallawlibrary

Petitioners then filed a petition for certiorari before the RTC, Branch 77, Quezon City (RTC, Branch 77), docketed as Civil Case No. Q-99-37324. They assailed the MeTC's denial of their motion to quash the informations for falsification of public document and grave coercion and alleged that the MeTC should have adopted the factual findings of RTC, Branch 84 in the Decision dated March 7, 1997 in the replevin case as res judicata.[16]chanroblesvirtuallawlibrary

On October 8, 1999, the RTC, Branch 77 dismissed petitioners' petition for certiorari upon holding that: res judicata cannot be invoked considering that the Decision dated March 7, 1997 of RTC, Branch 84 in the replevin case is not yet a final and executory judgment, being on appeal; in any event, a final judgment rendered in a civil action absolving the defendant from civil liability is not a bar to criminal action; the issues of falsification and coercion were not made the subject of a full-dressed hearing in the replevin case; and, the motion to quash was filed only after their arraignment in violation of the well-settled doctrine that a motion to quash may be filed only before the accused has entered his plea to the accusatory pleading.[17]chanroblesvirtuallawlibrary

Petitioners' filed a motion for reconsideration[18] but was denied in an Order dated February 29, 2000.[19]chanroblesvirtuallawlibrary

Undaunted, petitioners filed a petition for certiorari before the CA which, on April 18, 2000, was dismissed. In dismissing the petition, the CA held that the writ of certiorari is not the proper remedy where a motion to quash an information is denied. It further held that the People of the Philippines was not impleaded as a respondent in the case nor was the Office of the Solicitor General furnished a copy of the petition when the Informations were filed in the name of the People of the Philippines and necessarily it is the party interested in sustaining the proceedings in the court.[20]chanroblesvirtuallawlibrary

Hence, the present petition for review on certiorari anchored on the following grounds:

THE HONORABLE COURT OF APPEALS HAS DECIDED THE ISSUES PRESENTED PROBABLY NOT IN ACCORD WITH LAW OR WITH THE APPLICABLE DECISIONS OF THE SUPREME COURT.

THE HONORABLE COURT OF APPEALS HAS SO FAR DEPARTED FROM THE ACCEPTED AND USUAL COURSE OF JUDICIAL PROCEEDINGS OR SO FAR SANCTIONED SUCH DEPARTURE BY THE LOWER COURT AS TO CALL FOR AN EXERCISE OF THE POWER OF SUPERVISION.[21]chanroblesvirtuallawlibrary

Petitioners claim that the MeTC Judge committed grave abuse of discretion when she denied their motion to quash the Informations and refused to dismiss the charges against them since the charges against them pending before her court were 'obliterated by the positive factual findings of RTC, Branch 84 in its Decision dated March 7, 1997 that the signature of private respondent in the Deed of Sale dated December 3, 1993 is genuine and she voluntarily surrendered the car to petitioners. They maintain that such factual findings of RTC, Branch 84 in its Decision dated March 7, 1997 bar their prosecution in the criminal cases for falsification of public document and grave coercion. They submit that once a court of competent jurisdiction puts to finish an issue of fact, it cannot be disturbed by the lower court and, accordingly, the factual findings of RTC, Branch 84 cannot be overturned by the MeTC.

The Solicitor General, on the other hand, avers that the decision in the replevin suit cannot foreclose or suspend the prosecution of the criminal cases for falsification and grave coercion as replevin is an entirely separate and distinct remedy allowed by the rules. He states that res judicata cannot apply for lack of the essential elements of identity of parties and finality of the decision in the replevin suit.

As for private respondent, she argues that the decision of RTC, Branch 84 can not be conclusive upon the MeTC because it is not a final and executory judgment, being on appeal in the CA, and, even if final, the rules provide that such final decision does not foreclose prosecution of the criminal action. She insists that the MeTC Judge did not act beyond her jurisdiction as the denial of the motion to quash was in accordance with law and jurisprudence and, thus, petitioners' resort to certiorari was improper and appropriately dismissed by the RTC and the CA.

At the outset, we observe that while the assigned errors appear to raise errors of judgment committed by the CA, the arguments of the petitioners purely dwell on the alleged grave abuse of discretion or error of jurisdiction committed by the MeTC in denying the Motion to Quash, the very issue they raised in the petition for certiorari before the RTC, when the issues that should have been raised in the petition for review on certiorari before us are the errors of judgment that the CA may have committed in dismissing their petition for certiorari. Petitioners' utter failure to bring up the matter concerning the CA's bases in dismissing their petition shows that they are evading the issues.

Nonetheless, we find that the CA is correct in dismissing petitioners' petition for certiorari.

First. We note that the petitions for certiorari in the RTC and CA are defective since petitioners failed to implead the People of the Philippines as respondent therein. As provided in Section 5,[22]Rule 110 of the Rules of Criminal Procedure, all criminal actions are prosecuted under the direction and control of the public prosecutor. The prosecution of offenses is thus the concern of the government prosecutors. It behooved the petitioners to implead the People of the Philippines as respondent in the RTC and in the CA to enable the public prosecutor or Solicitor General, as the case may be, to comment on the petitions. The failure to implead is fatal to petitioners' cause.

Second. It is settled that a special civil action for certiorari and prohibition is not the proper remedy to assail the denial of a motion to quash an information. The established rule is that when such an adverse interlocutory order is rendered, the remedy is not to resort forthwith to certiorari or prohibition, but to continue with the case in due course and, when an unfavorable verdict is handed down to take an appeal in the manner authorized by law.[23] Only when the court issued such order without or in excess of jurisdiction or with grave abuse of discretion and when the assailed interlocutory order is patently erroneous and the remedy of appeal would not afford adequate and expeditious relief will certiorari be considered an appropriate remedy to assail an interlocutory order.[24] No such special circumstances are present in the case at bar.

The declaration of RTC, Branch 84 in its Decision dated March 7, 1997 that the signature of private respondent in the Deed of Sale dated December 3, 1993 is genuine and she voluntarily surrendered the car to petitioners is not res judicata in the criminal cases for falsification and grave coercion because there is no identity of parties as the People of the Philippines is not a party in the replevin suit and cannot be bound by the factual findings therein. Besides, the decision of RTC, Branch 84 is still pending appeal with the CA. Hence, at the time the MeTC, the RTC and the CA rendered their assailed order, decision and resolution, respectively, there existed no special circumstance to warrant a dismissal of the cases pending in the MeTC.

It is noted that during the pendency of the case before us, the CA has rendered a Decision dated April 19, 2005 modifying the Decision dated March 7, 1997 of RTC, Branch 84, in this wise:

WHEREFORE, the application for a Writ of Replevin is hereby DENIED, the plaintiff Janice Chua having executed a Deed of Sale in favor of defendant William Madarang.

The Deed of Sale is however, hereby declared as an equitable mortgage and, therefore, plaintiff Janice Chua possesses the right of redemption pursuant to Article 1606 of the New Civil Code.

SO ORDERED.

However, records before us do not show that this decision had become final and executory. As a natural or inherent and inevitable consequence of said declaration, a decision which has not become final and executory has no conclusive effect.

Third. Section 3, Rule 117 of the 1985 Rules of Criminal Procedure, the governing law at the time of the filing of the indictments, provides the grounds on which an accused can move to quash the complaint or information. These are: (a) the facts charged do not constitute an offense; (b) the court trying the case has no jurisdiction over the offense charged; (c) the court trying the case has no jurisdiction over the person of the accused; (d) the officer who filed the information had no authority to do so; (e) the information does not conform substantially to the prescribed form; (f) more than one offense is charged, except in those cases in which existing laws prescribe a single punishment for various

offenses; (g) the criminal action or liability has been extinguished; (h) the information contains averments which, if true, would constitute a legal excuse or justification; and (i) the accused has been previously convicted or is in jeopardy of being convicted or acquitted of the offense charged.[25]chanroblesvirtuallawlibrary

Section 8 of the same Rule specifically provides:

SEC. 8. Failure to move to quash or to allege any ground therefor. ' The failure of the accused to assert any ground of a motion to quash before he pleads to the complaint or information, either because he did not file a motion to quash or failed to allege the same in said motion, shall be deemed a waiver of the grounds of a motion to quash, except the grounds of no offense charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy, as provided for in paragraphs (a), (b), (f) and (h) of Section 3 of this Rule. (10a)

Thus, a motion to quash may still be filed after pleading to the complaint or information where the grounds are that no offense is charged, lack of jurisdiction over the offense charged, extinction of the offense or penalty and jeopardy. Nowhere in the enumerated excepted grounds is there any mention of res judicata as a ground to quash an information.

Fourth. Section 4, Rule 111 of the Rules of Court explicitly recognizes that 'a final judgment rendered in a civil action absolving the defendant from civil liability is no bar to a criminal action. [26]

Fifth. Article 33[27] of the Civil Code provides that in cases involving alleged fraudulent acts, a civil action for damages, entirely separate and distinct from the criminal action, may be brought by the injured party. Such civil action shall proceed independently of the criminal prosecution and shall require only a preponderance of evidence. It is clear, therefore, that the civil case for replevin may proceed independently of the criminal cases for falsification and grave coercion, especially because while both cases are based on the same facts, the quantum of proof required for holding the parties liable therein differs.[28]chanroblesvirtuallawlibrary

All told, the petitioners failed to show why the actions of the MeTC, RTC and the CA which have passed upon the same issue should be reversed. We are thus convinced that the CA committed no reversible error in its challenged Decision.

WHEREFORE, the present petition is DENIED. The assailed Decision of the Court of Appeals, dated April 18, 2000, is AFFIRMED. Costs against petitioners.

SO ORDERED.

Puno, (Chairman), Callejo, Sr., Tinga, and Chico-Nazario, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

G.R. No. 176795             June 30, 2008

SPS. CAROLINA and REYNALDO JOSE, petitioners, vs.SPS. LAUREANO and PURITA SUAREZ, respondents.

D E C I S I O N

TINGA, J.:

Petitioners filed this case assailing the Decision1 of the Court of Appeals in CA-G.R. CEB SP No. 00397 dated 17 August 2006 which affirmed the Orders2 of the Regional Trial Court (RTC) of Cebu City, Branch 19 restraining Branches 2 and 5 of the Municipal Trial Court in Cities (MTCC) of Cebu City from proceeding with the criminal cases for violation of Batas Pambansa Bilang 22 (B.P. Blg. 22) filed against respondent Purita Suarez.

The facts of the case follow.

Respondents, spouses Laureano and Purita Suarez, had availed of petitioner Carolina Jose’s (Carolina) offer to lend money at the daily interest rate of 1% to 2%. However, Carolina and her husband, petitioner Reynaldo Jose, later on increased the interest to 5% per day, which respondents were forced to accept because they allegedly had no other option left. It then became a practice that petitioners would give the loaned money to Purita and the latter would deposit the same in her and her husband’s account to cover the maturing postdated checks they had previously issued in payment of their other loans. Purita would then issue checks in favor of petitioners in payment of the amount borrowed from them with the agreed 5% daily interest.

On 7 May 2004, respondents filed a Complaint3 against petitioners seeking the declaration of "nullity of interest of 5% per day, fixing of interest, recovery of interest payments"4 and the issuance of a writ of

preliminary injunction, alleging that the interest rate of 5% a day is iniquitous, contrary to morals, done under vitiated consent and imposed using undue influence by taking improper advantage of their financial distress. They claimed that due to serious liquidity problems, they were forced to rely on borrowings from banks and individual lenders, including petitioners, and that they had to scramble for funds to cover the maturing postdated checks they issued to cover their other borrowings. In their prayer, respondents stated:

WHEREFORE, it is prayed that upon the filing of the instant case and in accordance with the 1997 Rules on Civil Procedure[,] a writ of preliminary injunction or at least a temporary restraining order be issued restraining defendant from enforcing the checks as listed in Annex "E" including the filing of criminal cases for violation of B.P. [Blg.] 22 and restraining defendants from entering plaintiffs’ store and premises to get cash sales and other items against plaintiffs will [sic] under such terms and conditions as this Court may affix.5

Thereafter, at the instance of Carolina, several cases for violation of B.P. Blg. 226 were filed against respondent Purita before the MTCC of Cebu City, Branches 2 and 5. Purita, in turn filed motions to suspend the criminal proceedings on the ground of prejudicial question, on the theory that the checks subject of the B.P. Blg. 22 cases are void for being contra bonos mores or for having been issued in payment of the iniquitous and unconscionable interest imposed by petitioners. The motions were denied.7

Respondents thereafter filed before the RTC a "Motion for Writ of Preliminary Injunction with Temporary Restraining Order"8 seeking to restrain the MTCCs from further proceeding with the B.P. Blg. 22 cases on the ground of prejudicial question. Petitioners opposed the motion. Nevertheless, the RTC through its 20 December 2004 Order9 issued a writ of preliminary injunction, thereby enjoining the MTCCs from proceeding with the cases against Purita. Petitioners sought reconsideration of the order but their motion was denied due course in the RTC’s 3 February 2005 Order.10

Petitioners elevated the case to the Court of Appeals11 and questioned the propriety of the RTC’s issuance of a preliminary injunction based on a prejudicial question. The appellate court stated that respondents had sought to annul the checks for being void pursuant to Article 1422 of the Civil Code which provides that "a contract which is the direct result of a previous illegal contract, is also void and inexistent." Accordingly, the appellate court concluded that if the checks subject of the criminal cases were later on declared null and void, then said checks could not be made the bases of criminal prosecutions under B.P. Blg. 22. In other words, the outcome of the determination of the validity of the said checks is determinative of guilt or innocence of Purita in the criminal case.12

The appellate court also observed that respondents’ resort to an application for preliminary injunction could not be considered as forum shopping since it is the only remedy available to them considering the express proscription of filing a petition for certiorari against interlocutory orders issued in cases under B.P. Blg. 22 which are governed by the rules on summary procedure.13

Before us, petitioners submit that because under Section 6, Rule 111 of the Rules on Criminal Procedure a petition to suspend proceedings on the ground of prejudicial question should be filed in the same criminal action, the RTC has no jurisdiction to issue the writ of preliminary injunction as it is not the court where the B.P. Blg. 22 cases were filed. Moreover, they argue that respondents are guilty of forum shopping because after the denial of their motion to suspend the proceedings before Branches 2 and 5 of the MTCC, they resorted to the filing of a motion for preliminary injunction before the RTC also on the ground of prejudicial question; therefore, they succeeded in getting the relief in one forum (RTC) which they had failed to obtain in the first forum (MTCCs). Likewise, petitioners claim that the Court of Appeals erred in holding that the civil case poses a prejudicial question to the B.P. Blg. 22 cases, thus resulting in the erroneous suspension of the proceedings the latter cases. Finally, petitioners posit that the RTC erred in issuing the preliminary injunction because respondents have no clear and unmistakable right to its issuance.14

Respondents, for their part, state that the possibility of a ruling in the civil case to the effect that the subject checks are contra bonos mores and hence null and void constitutes a prejudicial question in the B.P. Blg. 22 cases. Thus, proceeding with the trial in the criminal cases without awaiting the outcome of the civil case is fraught with mischievous consequences.15 They cite the case of Medel v. Court of Appeals,16 wherein the Court nullified the interest rate of 5.5% per month for being contra bonos mores under Article 1306 of the Civil Code, and recomputed the interest due at the rate of 1% per month.17 Thus, if their loans are computed at 1% per month, it would mean that the checks subject of the B.P. Blg. 22 cases are not only fully paid but are also in fact overpaid. They also invoke the case of Danao v. Court of Appeals18 wherein the Court allegedly ruled that there is no violation of B.P. Blg. 22 if the dishonored checks have been paid.19 They claim that since the 5% interest per day was not contained in any written agreement, per Article 195620 of the Civil Code, petitioners are bound to return the total interest they collected from respondents. Respondents point out that they incorporated in their complaint an application for preliminary injunction and temporary restraining order to restrain Carolina from enforcing the interest and from filing criminal cases for violation of B.P. Blg. 22. Quoting the RTC, respondents explain:

Since there was no proof at that time that plaintiff sustain or are about to sustain damages or prejudice if the acts complained of are not enjoined, the application was not acted upon by the Court. When the attention of the Court was invited by the plaintiffs of the refusal of the MTC, Branches 2 and 5, to suspend the criminal proceedings despite being appraised of the pendency of this case, the Court has to act accordingly.21

Respondents maintain that they are not guilty of forum shopping because after the denial by the MTCCs of their motion to suspend proceedings, their only available remedy was the filing of an application for preliminary injunction in the existing civil case filed earlier than the B.P. Blg. 22 cases. In any case, respondents argue that the rule on forum shopping is not intended to deprive a party to a case of a legitimate remedy.22 Finally, they claim that the case falls under the exceptions to the rule that the prosecution of criminal cases may not be enjoined by a writ of injunction, considering that in this case there is a prejudicial question which is sub judice, and that there is persecution rather than prosecution.23

The case hinges on the determination of whether there exists a prejudicial question which necessitates the suspension of the proceedings in the MTCCs.

We find that there is none and thus we resolve to grant the petition.

A prejudicial question generally comes into play in a situation where a civil action and a criminal action are both pending and there exists in the former an issue which must be preemptively resolved before the latter may proceed, because howsoever the issue raised in the civil action is resolved would be determinative juris et de jure of the guilt or innocence of the accused in the criminal case. The rationale behind the principle of prejudicial question is to avoid two conflicting decisions. It has two essential elements: (i) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and (ii) the resolution of such issue determines whether or not the criminal action may proceed.24

Now the prejudicial question posed by respondents is simply this: whether the daily interest rate of 5% is void, such that the checks issued by respondents to cover said interest are likewise void for being contra bonos mores, and thus the cases for B.P. Blg. 22 will no longer prosper.

The prejudicial question theory advanced by respondents must fail.

In the first place, the validity or invalidity of the interest rate is not determinative of the guilt of respondents in the criminal cases. The Court has consistently declared that the cause or reason for the issuance of a check is inconsequential in determining criminal culpability under B.P. Blg. 22.25 In several instances, we have held that what the law punishes is the issuance of a bouncing check and not the purpose for which it

was issued or the terms and conditions relating to its issuance; and that the mere act of issuing a worthless check is malum prohibitum provided the other elements of the offense are properly proved.26

The nature and policy of B.P. Blg. 22 were aptly enunciated by the Court in Meriz v. People,27 when it stated:

x x x. [B.P. Blg.] 22 does not appear to concern itself with what might actually be envisioned by the parties, its primordial intention being to instead ensure the stability and commercial value of checks as being virtual substitutes for currency. It is a policy that can easily be eroded if one has yet to determine the reason for which checks are issued, or the terms and conditions for their issuance, before an appropriate application of the legislative enactment can be made. The gravamen of the offense under [B.P. Blg.] 22 is the act of making or issuing a worthless check or a check that is dishonored upon presentment for payment. The act effectively declares the offense to be one of malum prohibitum. The only valid query then is whether the law has been breached, i.e., by the mere act of issuing a bad check, without so much regard as to the criminal intent of the issuer.28

Thus, whether or not the interest rate imposed by petitioners is eventually declared void for being contra bonos mores will not affect the outcome of the B.P. Blg. 22 cases because what will ultimately be penalized is the mere issuance of bouncing checks. In fact, the primordial question posed before the court hearing the B.P. Blg. 22 cases is whether the law has been breached, that is, if a bouncing check has been issued.

The issue has in fact been correctly addressed by the MTCCs when respondents’ motion to suspend the criminal proceedings was denied upon the finding that there exists no prejudicial question which could be the basis for the suspension of the proceedings. The reason for the denial of the motion is that the "cases can very well proceed for the prosecution of the accused in order to determine her criminal propensity … as a consequence of the issuance of several checks which subsequently … bounced" for "what the law punishes is the issuance and/or drawing of a check and upon presentment for deposit or encashment, it was dishonored due to insufficient funds [or] account closed." 29

There being no prejudicial question, the RTC and, consequently, the Court of Appeals gravely erred when they allowed the suspension of the proceedings in the B.P. Blg. 22 cases.

Now, on to other matters.

We find that respondents are guilty of forum shopping. There is forum shopping when a party seeks to obtain remedies in an action in one court, which had already been solicited, and in other courts and other proceedings in other tribunals. Forum shopping is the act of one party against another, when an adverse judgment has been rendered in one forum, of seeking another and possibly favorable opinion in another forum other than by appeal or by special civil action of certiorari; or the institution of two or more acts or proceedings grounded on the same cause on the supposition that one or the other court would make a favorable disposition.30

Respondents filed their motions to suspend proceedings in the MTCCs hearing the B.P. Blg. 22 cases but unfortunately, the same were denied. Failing to get the relief they wanted, respondents sought before the RTC, the suspension of the criminal proceedings which was granted. Respondents tried to extricate themselves from the charge of forum shopping by explaining that after the denial of their motions to suspend, their only remedy was the application for preliminary injunction in the civil case—a relief which they had already asked for in their complaint and which was also initially not granted to them. Any which way the situation is viewed, respondents’ acts constituted forum shopping since they sought a possibly favorable opinion from one court after another had issued an order unfavorable to them.

The Court notes that three cases, namely, Ras v. Rasul,31 Medel v. CA32 and Danao v. Court of Appeals33

—finding no application to the instant case—were mentioned by the RTC, the Court of Appeals and by respondents themselves in support of their position.

Ras v. Rasul cropped up in the order of the RTC which was quoted with approval by the Court of Appeals. According to the RTC, the ruling in the said case allegedly "can be squarely applied in this case which nullified and set aside the conviction in a criminal case because of a prejudicial question."34 We do not agree. The Ras case involves a petition for nullification of a deed of sale on the ground of forgery. While the civil case was pending, an information for estafa was filed against the respondent in the civil case. The Court ruled that there were prejudicial questions considering that the defense against the charge of forgery in the civil case is based on the very same facts which would be determinative of the guilt or innocence of the respondent in the estafa case. The instant case is different from Ras inasmuch as the determination of whether the 5% daily interest is contra bonos mores and therefore void, or that the total amount loaned from petitioners has been sufficiently paid, will not affect the guilt or innocence of Purita because the material question in the B.P. Blg. 22 cases is whether Purita had issued a bad check, regardless of the purpose or condition of its issuance.

Medel v. CA is the case upon which respondents anchor their claim that the interest due on their loans is only 1% per month and thus they have already overpaid their obligation to petitioners. In Medel, the Court declared that the rate of 5.5% interest per month on a P500,000.00 loan is iniquitous, unconscionable and hence contrary to morals, and must equitably be reduced to 12% per annum. While the Medel case made a finding that the stipulated interest rate is excessive and thus may be equitably reduced by the courts, we do not see how a reduction of the interest rate, should there be any, or a subsequent declaration that the amount due has been fully paid, will have an effect on the determination of whether or not Purita had in fact issued bouncing checks.

Meanwhile, respondents misunderstood our ruling in Danao v. Court of Appeals, which they claim to have ruled that there could be no violation of B.P. Blg. 22 if the dishonored checks have been paid. In Danao, the accused was convicted by the trial court for having issued two checks which eventually bounced. The Court found that there was no proof of receipt by the accused of any notice of nonpayment of the checks, and thus there was no way of determining when the five-day period prescribed in Section 2 of B.P. Blg. 22 would start and end. Thus, the presumption or prima facie evidence of knowledge of the insufficiency of funds or credit at the time of the issuance of the checks did not arise. While there was a finding that the accused had already paid her obligations prior to receipt of the complainant’s demand letter,35 there was no declaration from the Court that such payment exonerated accused from liability for having issued bouncing checks. Instead, accused was acquitted due to insufficiency of evidence, and not because she had paid the amount covered by the dishonored checks36 or that the obligation was deemed paid.

WHEREFORE, the petition is GRANTED. The impugned Decision of the Court of Appeals dated 17 August 2006 and its Resolution dated 27 February 2007, in CA-G.R. CEB-SP No. 00397, are SET ASIDE. The preliminary injunction issued by the Regional Trial Court of Cebu City, Branch 19 in its Order dated 20 December 2004 in Civil Case No. CEB-30278 enjoining the proceedings in the criminal cases for violation of B.P. Blg. 22 is LIFTED AND SET ASIDE and the MTCC of Cebu City, Branches 2 and 5 are ORDERED to proceed with dispatch with the arraignment and trial in the B.P. Blg. 22 cases pending before them.

SO ORDERED.

FIRST DIVISION

[G.R. No. 138509. July 31, 2000]

IMELDA MARBELLA-BOBIS, Petitioner, v. ISAGANI D. BOBIS, respondent.

D E C I S I O N

YNARES-SANTIAGO, J.:

On October 21, 1985, respondent contracted a first marriage with one Maria Dulce B. Javier. Without said marriage having been annulled, nullified or terminated, the same respondent contracted a second marriage with petitioner Imelda Marbella-Bobis on January 25, 1996 and allegedly a third marriage with a certain Julia Sally Hernandez. Based on petitioners complaint-affidavit, an information for bigamy was filed against respondent on February 25, 1998, which was docketed as Criminal Case No. Q98-75611 of the Regional Trial Court, Branch 226, Quezon City. Sometime thereafter, respondent initiated a civil action for the judicial declaration of absolute nullity of his first marriage on the ground that it was celebrated without a marriage license. Respondent then filed a motion to suspend the proceedings in the criminal case for bigamy invoking the pending civil case for nullity of the first marriage as a prejudicial question to the criminal case. The trial judge granted the motion to suspend the criminal case in an Order dated December 29, 1998.1 Petitioner filed a motion for reconsideration, but the same was denied.

Hence, this petition for review on certiorari. Petitioner argues that respondent should have first obtained a judicial

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declaration of nullity of his first marriage before entering into the second marriage, inasmuch as the alleged prejudicial question justifying suspension of the bigamy case is no longer a legal truism pursuant to Article 40 of the Family Code.2

The issue to be resolved in this petition is whether the subsequent filing of a civil action for declaration of nullity of a previous marriage constitutes a prejudicial question to a criminal case for bigamy.

A prejudicial question is one which arises in a case the resolution of which is a logical antecedent of the issue involved therein.3 It is a question based on a fact distinct and separate from the crime but so intimately connected with it that it determines the guilt or innocence of the accused.4 It must appear not only that the civil case involves facts upon which the criminal action is based, but also that the resolution of the issues raised in the civil action would necessarily be determinative of the criminal case.5 Consequently, the defense must involve an issue similar or intimately related to the same issue raised in the criminal action and its resolution determinative of whether or not the latter action may proceed.6 Its two essential elements are:7

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(a) the civil action involves an issue similar or intimately related to the issue raised in the criminal action; and

(b) the resolution of such issue determines whether or not the criminal action may proceed.

A prejudicial question does not conclusively resolve the guilt or innocence of the accused but simply tests the sufficiency of the allegations in the information in order to sustain the further prosecution of the criminal case. A party who raises a prejudicial question is deemed to have hypothetically admitted that all the essential elements of a crime have been adequately alleged in the information, considering that the prosecution has not yet presented a single evidence on the indictment or may not yet have rested its case. A challenge of the allegations in the information on the ground of prejudicial question is in effect a question on the merits of the criminal charge through a non-criminal suit.

Article 40 of the Family Code, which was effective at the time of celebration of the second marriage, requires a prior judicial declaration of nullity of a previous marriage before a party may remarry. The clear implication of this is that it is not for the parties, particularly the accused, to determine the validity or invalidity of the marriage.8 Whether or not the first marriage was void for lack of a license is a matter of defense because there is still no judicial declaration of its nullity at the time the second marriage was contracted. It should be remembered that bigamy can successfully be prosecuted provided all its elements concur two of which are a previous marriage and a subsequent marriage which would have been

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valid had it not been for the existence at the material time of the first marriage.9

In the case at bar, respondents clear intent is to obtain a judicial declaration of nullity of his first marriage and thereafter to invoke that very same judgment to prevent his prosecution for bigamy. He cannot have his cake and eat it too. Otherwise, all that an adventurous bigamist has to do is to disregard Article 40 of the Family Code, contract a subsequent marriage and escape a bigamy charge by simply claiming that the first marriage is void and that the subsequent marriage is equally void for lack of a prior judicial declaration of nullity of the first. A party may even enter into a marriage aware of the absence of a requisite - usually the marriage license - and thereafter contract a subsequent marriage without obtaining a declaration of nullity of the first on the assumption that the first marriage is void. Such scenario would render nugatory the provisions on bigamy. As succinctly held in Landicho v. Relova:10

(P)arties to a marriage should not be permitted to judge for themselves its nullity, only competent courts having such authority. Prior to such declaration of nullity, the validity of the first marriage is beyond question. A party who contracts a second marriage then assumes the risk of being prosecuted for bigamy.

Respondent alleges that the first marriage in the case before us was void for lack of a marriage license. Petitioner, on the other hand, argues that her marriage to respondent was exempt from the requirement of a marriage license. More specifically, petitioner claims that prior to their marriage,

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they had already attained the age of majority and had been living together as husband and wife for at least five years.11 The issue in this case is limited to the existence of a prejudicial question, and we are not called upon to resolve the validity of the first marriage. Be that as it may, suffice it to state that the Civil Code, under which the first marriage was celebrated, provides that "every intendment of law or fact leans toward the validity of marriage, the indissolubility of the marriage bonds."12 Hence, parties should not be permitted to judge for themselves the nullity of their marriage, for the same must be submitted to the determination of competent courts. Only when the nullity of the marriage is so declared can it be held as void, and so long as there is no such declaration the presumption is that the marriage exists.13 No matter how obvious, manifest or patent the absence of an element is, the intervention of the courts must always be resorted to. That is why Article 40 of the Family Code requires a "final judgment," which only the courts can render. Thus, as ruled in Landicho v. Relova,14 he who contracts a second marriage before the judicial declaration of nullity of the first marriage assumes the risk of being prosecuted for bigamy, and in such a case the criminal case may not be suspended on the ground of the pendency of a civil case for declaration of nullity. In a recent case for concubinage, we held that the pendency of a civil case for declaration of nullity of marriage is not a prejudicial question.15 This ruling applies here by analogy since both crimes presuppose the subsistence of a marriage.

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Ignorance of the existence of Article 40 of the Family Code cannot even be successfully invoked as an excuse.16 The contracting of a marriage knowing that the requirements of the law have not been complied with or that the marriage is in disregard of a legal impediment is an act penalized by the Revised Penal Code.17 The legality of a marriage is a matter of law and every person is presumed to know the law. As respondent did not obtain the judicial declaration of nullity when he entered into the second marriage, why should he be allowed to belatedly obtain that judicial declaration in order to delay his criminal prosecution and subsequently defeat it by his own disobedience of the law? If he wants to raise the nullity of the previous marriage, he can do it as a matter of defense when he presents his evidence during the trial proper in the criminal case.

The burden of proof to show the dissolution of the first marriage before the second marriage was contracted rests upon the defense,18 but that is a matter that can be raised in the trial of the bigamy case. In the meantime, it should be stressed that not every defense raised in the civil action may be used as a prejudicial question to obtain the suspension of the criminal action. The lower court, therefore, erred in suspending the criminal case for bigamy. Moreover, when respondent was indicted for bigamy, the fact that he entered into two marriage ceremonies appeared indubitable. It was only after he was sued by petitioner for bigamy that he thought of seeking a judicial declaration of nullity of his first marriage. The obvious intent, therefore, is that respondent merely resorted to the civil action as a potential prejudicial question for the purpose of frustrating or delaying his

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criminal prosecution. As has been discussed above, this cannot be done.

In the light of Article 40 of the Family Code, respondent, without first having obtained the judicial declaration of nullity of the first marriage, can not be said to have validly entered into the second marriage. Per current jurisprudence, a marriage though void still needs a judicial declaration of such fact before any party can marry again; otherwise the second marriage will also be void.19 The reason is that, without a judicial declaration of its nullity, the first marriage is presumed to be subsisting. In the case at bar, respondent was for all legal intents and purposes regarded as a married man at the time he contracted his second marriage with petitioner.20 Against this legal backdrop, any decision in the civil action for nullity would not erase the fact that respondent entered into a second marriage during the subsistence of a first marriage. Thus, a decision in the civil case is not essential to the determination of the criminal charge. It is, therefore, not a prejudicial question. As stated above, respondent cannot be permitted to use his own malfeasance to defeat the criminal action against him.21

WHEREFORE, the petition is GRANTED. The order dated December 29, 1998 of the Regional Trial Court, Branch 226 of Quezon City is REVERSEDand SETASIDE and the trial court is ordered to IMMEDIATELYproceed with Criminal Case No. Q98-75611.

SO ORDERED.

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Davide, Jr., C.J., (Chairman), Puno, Kapunan, and Pardo, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-13222             April 27, 1960

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.AQUILINO ARAGON and RAMON LOPEZ, defendants-appellants.

Acting Solicitor General Guillermo E. Torres and Solicitor Hector C. Fule for appellee.Celso T. Oliva for appellants.

BENGZON, J.:

For having killed their principal teacher at the Masbate National Agricultural School, these two appellants were tried and found guilty of murder. They were consequently sentenced to life imprisonment and to pay solidarily to the heirs of the deceased P6,000.00, and to defray the costs.

We find them guilty too, but only of homicide, and in view of the circumstances, we considerably reduce their term of imprisonment.

On January 12, 1956, these young men between 17 and 18 years of age, clubbed and hammered to death one Gabino G. Buhay, 55, Acting Principal Teacher of the said school, where they were students. The wounds found on the cadaver proved that such maltreatment caused his demise.

The accused Aquilino Aragon declared under oath that while he and his co-amused Ramon Lopez were sleeping in their cottage in the school campus, at Mandaon, Masbate, at about eleven that morning, Buhay violently kicked him. He rose to his feet only to be roughly pushed against the wall. Then Buhay kicked Ramon Lopez. In retaliation, the latter picked up a piece of wood and tried to hit Buhay. The latter grabbed the wood and attempted to hit Lopez in turn. It was then that he (Aragon) picked up a hammer, and struck Buhay on the head, even as Lopez retaking the piece of wood beat Buhay twice, knocking him down. Then both students left the place, and surrendered to Policeman Felixberto Laguerta in the market of the town.

Ramon Lopez testified to the same effect.

Policeman Laguerta swore that, when the two defendants surrendered to him they admitted having killed their principal teacher because he had kicked them while they were both sleeping.

On the other hand, all the prosecution could prove by its witnesses was that the students "fought" with their principal teacher. Nilo Vargas, the only eye-witness declared that, while on his way to his cottage,

that morning, he saw Buhay quarreling in the cottage with Lopez and Aragon, one armed with a wooden cudgel and the other with a hammer, and that he hurried to report "the fight" to a teacher by the name of Pedro Panganiban. Indeed, the latter swore that Vargas came and reported to him that there was a "fight" between the above-mentioned parties.

His Honor, the judge of Masbate Province, discounted the story of the defense. He concluded that the attack was premeditated and treacherous. If the deceased had kicked the accused, he explained, he (Buhay) "could not have lessened his awareness to the danger of retaliation from the students whom he kicked. The two accused, as was said, are young and teenagers. They could not have thought of immediate retaliation against the principal of their school upon being kicked off their bodies by the deceased and even if they could not think immediate retaliation, they could not have effectively attacked the deceased as to successfully disable him. The number of wounds sustained by the deceased unmistakably shows the suddenness and violence of the attack made on his person. The Court believes that the two accused were lying in ambush against the deceased and when the latter inserted his head through the door into the room where the accused had their sleeping quarters, one must have struck him with the piece of wood which made him dizzy and fall down to the floor. At this stage, the two accused struck him several times with the weapons which they have in their possession until he lost consciousness. . . .

It is quite probable that His Honor was unduly influenced by the affidavit of Silvestre Legal, accompanying the original complaint, to the effect that both defendants had tried to convince him the night before that "if Mr. Buhay enters our cottage that night on inspection, we Will kill him". However, that affidavit was not introduced as evidence. And Legal, while on the witness stand, neither ratified his affidavit nor said anything about the point.

Of course, there is some measure of plausibility to the inferences and assumptions of the judge. But the version of the accused is also plausible considering specially that the deceased was admittedly prone physically to chastise (with kick and fist blows) the students to impose discpline, and the defendants apparently played truant: instead of attending the classes that morning, they slept in their quarters. In the circumstances, it is more consonant with the theories underlying our criminal procedure to accept — through reluctantly — the defendants' account.1 In fact, the Solicitor-General's brief states that "the assault launched by the appellants against the principal was spontaneous and done on the spur of the moment when they were awakened from their sleep by the kick given them by the deceased."

Therefore, not murder, but homicide is what these defendants committed. They could not plead self-defense, because at no time were their lives endangered, the kicks and blows being known to them as a mere disciplinary measure, excessive though it may be.2

In Article 249 of the Revised Penal Code, homicide is punished with reclusion temporal. As the offenders were, at the time of the killing between 17 and 18 years of age, under Article 68 of the same Code, the next lower penalty prision mayor 3 should be imposed in the proper period. There were two mitigating circumstances: voluntary surrender and provocation. On the other hand, the resulting insult to the offended party on account of his rank (principal of the school) aggravated the offense.4 The proper period then would be prision mayor in its minimum. Applying the Indeterminate Sentence Law, the appellants should be sentenced to imprisonment for not less than three years of prision correccional5 nor more than eight years of prision mayor.

Modified as to the personal penalty, the appealed judgment is affirmed in all other respects. So ordered.

Paras C.J., Montemayor, Bautista Angelo, Labrador, Concepcion, Barrera and Gutierrez David, JJ., concur.

Rule 115

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 DE LA 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 is whether or not a court loses jurisdiction over an accused who after being arraigned, escapes from the custody 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 and to 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 the herein 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 to the crime charged. Following the arraignment, the respondent judge, Hon. Ramon E. Nazareno, set the hearing of the case for September 18, 1973 at 1:00 o'clock in the afternoon. All the acused including private respondent, were duly informed of this.

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

SEC. 19. In all criminal prosecution, the accused shall be presumed innocent until the contrary 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 compulsory process to the attendance of witnesses and the production of evidence in his behalf. However, after arraignment trial may proceed notwithstanding the absence of the accused provided that he has been duly notified and his failure to appear is unjustified. (Emphasis supplied.) *

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

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

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

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

On November 16,1973 the petitioners filed a Motion for Reconsideration questioning the above-quoted dispositive portion on the ground that it will render nugatory the constitutional provision on "trial in absentia" 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 and present his evidence. 3 The reasoning of the said court is that under the same provision, all accused should be presumed innocent. 4 Furthermore the lower court maintains that jurisdiction over private respondent de la Vega, Jr. was lost when he escaped and that his right to cross-examine and present evidence 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 by his arrest for voluntary appearance in court. Such voluntary appearance is accomplished by appearing for arraignment 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 law and failed to appear during the trial? We answer this question in the negative. As We have consistently ruled in several earlier cases,6 jurisdiction once acquired is not lost upon the instance of parties but continues until the case is terminated.

To capsulize the foregoing discussion, suffice it to say that where the accused appears at the arraignment and pleads not guilty to the crime charged, jurisdiction is acquired by the court over his person and this continues 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 in absentia"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 is unjustified.

In this case, all the above conditions were attendant calling for a trial in absentia. As the facts show, the private 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 evidenced by his signature on the notice issued by the lower Court. 7 It was also proved by a certified copy of the Police Blotter 8 that private respondent escaped from his detention center. No explanation for his failure to appear in court in any of the scheduled hearings was given. Even the trial court considered his absence unjustified.

The lower court in accordance with the aforestated provisions of the 1973 Constitution, correctly proceeded with the reception of the evidence of the prosecution and the other accused in the absence of private respondent, but it erred when it suspended the proceedings as to the private respondent and rendered 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 decides to appear in court to present his evidence and moss e the witnesses against him. To allow the delay of proceedings for this purpose is to render ineffective the constitutional provision on trial in absentia. As it has been aptly explained:

. . . The Constitutional Convention felt the need for such a provision as there were quite a number of reported instances where the proceedings against a defendant had to be stayed indefinitely because of his non- appearance. What the Constitution guarantees him is a fair trial, not continued enjoyment of his freedom even if his guilt could be proved. With the categorical statement in the fundamental law that his absence cannot justify a delay provided that he has been duly notified and his failure to appear is unjustified, such an abuse 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 be violated if a judgment is rendered as to him is untenable. He is still presumed innocent. A judgment of conviction must still be based upon the evidence presented in court. Such evidence must prove him guilty beyond reasonable doubt. Also, there can be no violation of due process since the accused was given the opportunity to be heard.

Nor can it be said that an escapee who has been tried in absentia retains his rights to cross-examine and to present evidence on his behalf. By his failure to appear during the trial of which he had notice, he virtually waived these rights. This Court has consistently held that the right of the accused to confrontation and cross-examination of witnesses is a personal right and may be waived. 10 In the same vein, 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 the 1985 Rules on Criminal Procedure, particularly Section 1 (c) of Rule 115 which clearly reflects the intention of the framers of our Constitution, to wit:

... The absence of the accused without any justifiable cause at the trial on a particular date of which he had notice shall be considered a waiver of his right to be present during that trial. 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 all subsequent trial dates until custody in regained....

Accordingly, it is Our considered opinion, and We so hold, that an escapee who has been duly tried in absentia waives his right to present evidence on his own behalf and to confront and cross-examine witnesses 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 far as it suspends the proceedings against the herein private respondent Teodoro de la Vega, Jr. is reversed and set aside. The respondent judge is hereby directed to render judgment upon the innocence or guilt of the herein private respondent Teodoro de la Vega, Jr. in accordance with the evidence adduced and the applicable law.

No pronouncement as to costs.

SO ORDERED.

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

 

[G.R. No. 121769. November 22, 2000]

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. DANDY ALVAREZ y FRANCISCO @ Dandy Angelio and EDUARDO VILLAS @ Eddie, accused-appellants.

class=DECISION> D E C I S I O N

DE LEON, JR., J.:

Before us on appeal is the Decision[1 of the Regional Trial Court of Calbayog City, Branch 32, in Criminal Case No. 1696 convicting the appellants, Dandy F. Alvarez and Eduardo Villas, of the crime of murder.

Dandy F. Alvarez alias Dandy Angelio, Eduardo Villas alias Eddie and their co-accused, Buenaventura C. Villas alias Boining, Norie Villas, and Danilo Bocatcat alias Dangdang, were charged with the crime of murder, as defined and penalized under Article 248 of the Revised Penal Code, in an Information that reads:

That on or about the 2nd day of June, 1993, at about 8:00 oclock in the morning, at Sitio Hi-olangwan, Barangay Agrupacion, Municipality of Sta. Margarita, Province of Samar, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, all armed with homemade shotgun (bardog) conspiring, confederating together and mutually helping one another, with deliberate intent to kill, with treachery and evident premeditation, did then and there wilfully, unlawfully and feloniously attack, assault and shot one MANUEL CORRECHE with the use of homemade shotguns (mga bardog), which the accused conveniently provided themselves for the purpose, thereby inflicting upon the latter mortal wounds on the different parts of his body, which cause the untimely death of the said MANUEL CORRECHE.

Upon being arraigned, Dandy Alvarez, Eduardo Villas and Buenaventura Villas, assisted by counsel, pleaded Not guilty to the Information in this case. The other accused, Danilo Bocatcat and Norie Villas, were never arrested and remained at large up to the present.

The evidence of the prosecution shows that on June 2, 1993 at 8:00 oclock in the morning, Artemio Casaljay went to the house of Manuel Correche alias Botchoy in Sitio Hi-olangwan, Barangay

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Agrupacion, Sta. Margarita, Samar and requested the latter to cultivate Casaljays farm on the following day. On his way home, Artemio Casaljay was in the company of the spouses Manuel and Nenita together with their parents, Ramon and Gorgonia, all surnamed Correche, inasmuch as they were going to work in their own farm. They walked one after the other with Ramon taking the lead followed by Nenita, Gorgonia, Manuel and Artemio. When the group reached a creek (binalog), they heard a loud explosion from the left side of the trail and saw, almost simultaneously, Dandy Alvarez who was in a squat position behind cogon grasses on the elevated portion of the creek, holding a homemade shotgun rifle, locally known as bardog whose muzzle was still emitting smoke. Manuel Correche cried he was hit as he fell slowly to the ground. Nenita and Artemio also saw Eduardo Villas who approached from their left side and likewise shoot Manuel Correche on the left forearm. The three (3) other accused, Buenaventura Villas, Norie Villas and Danilo Bocatcat remained standing behind Dandy and Eduardo while aiming their guns at the group of Artemio Casaljay. Dandy, Eduardo, Norie and Danilo hurriedly left only after Buenaventura told them to stop inasmuch as Manuel was already dead.[2

The victim died on the spot from multiple gunshot wounds he sustained on the body. The Post Mortem Report[3prepared and signed by Dra. Eufemia C. Alcantara, M.D., Municipal Health Officer of Sta. Margarita, Samar, shows the following physical findings, to wit:

- Gunshot wound, portal of entry, circular, 0.8 cm. in diameter and contusion collar and tattoing over the sternum with protrusion of subcutaneous tissue and incomplete fracture of sternum.

- Gunshot wound, portal of entry, circular, o.5 cm. in diameter with contusion collar and tattoing, 6th intercostal space left chest parasternal line penetrating thoracic cavity perforating pericardial sac with metal foreign body embedded in the myocardium with massive hemothorax.

- Gunshot wound, portal of entry, circular 0.5 cm. in diameter with contusion collar and tattoing, 8th intercostal space left chest midclavicular line penetrating thoracic cavity with metal foreign body on the lower lobe of left lung.

- Gunshot wound, portal of entry, circular, 0.5 cm. in diameter with contusion collar and tattoing over 9th rib left chest midclavicular line with protrusion of subcutaneous tissue and incomplete fracture of left 9th rib.

- Gunshot wound, portal of entry, circular 0.5 cm. in diameter with contusion collar and tattoing, epigastric area of the abdomen penetrating abdominal cavity with metal foreign body on the left lobe of the liver.

- Gunshot wound, portal of entry, circular, 0.4 cm. in diameter with contusion collar and tattoing, left sub costal area with metal foreign body embedded in the underlying muscle.

- Gunshot wound, portal of entry, circular 0.3 cm. in diameter with contusion collar and tattoing left hypochondriac area with metal foreign body embedded in the underlying muscle.

- Gunshot wound, portal of entry, circular, 0.5 in diameter with contusion collar and tattoing, 7th intercostal space right chest penetrating thoracic cavity with metal foreign body in the middle lobe of the right lung.

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- Gunshot wound, portal of entry, circular, 0.5 cm. in diameter with contusion collar and tattoing, 10th intercostal space right chest penetrating thoracic cavity with metal foreign body in the lower lobe of the right lung.

- Gunshot wound, portal entry, circular, 0.5 cm. in diameter with contusion collar and tattoing, distal 3rd of left forearm posterior aspect with comminuted fracture of radial bone.

- Gunshot wound, portal of exit, 0.6 cm. in diameter with protrusions of subcutaneous tissue, distal 3rd of left forearm anterior aspect.

- Gunshot wound, portal of entry, circular, 0.5 cm. in diameter with contusion collar and tattoing, distal 3rd of left forearm postero-lateral aspect.

- Gunshot wound, portal of exit, 0.5 cm. in diameter with protrusion of subcutaneous tissue, distal 3rd of left forearm antero-lateral aspect.

Cause of death: Cardiorespiratory arrest secondary to hypovolemic shock due to gunshot wounds.

On June 6, 1993 Dandy Alvarez, Eduardo Villas, Danilo Bocatcat and two (2) other companions, identified as Rene Villas and Noli Villas, waited for Gerardo Verano in his house in Barangay Core, Sta. Margarita, Samar. Upon Gerardos arrival at 6:00 oclock in the evening, the three (3) accused sought permission from him to pass the night in his house. On the following morning, they entrusted to him three (3) homemade shotgun rifles[4 before they left for Poblacion, Sta. Margarita, Samar.[5 He did not object to the request for fear of the accused whom he had learned earlier as the killers of Manuel Correche in Barangay Agrupacion. Barangay Captain Segundo Cailo of Barangay Core and two (2) Bantay Bayan members from the the same barangay, namely: Ambrosio Severino and Sulpicio Domingito, saw the accused when they left the homemade shotgun rifles in the care of Gerardo.[6

Meanwhile, words spread that the firearms allegedly used in the killing of Manuel Correche on June 2, 1993 were in the possession of Gerardo Verano. On June 12, 1993, Artemio Casaljay together with two (2) CAFGU members, Candido Correche, Jr. and Iluminado Yrigon, came to the house of Gerardo Verano in Barangay Core, Sta. Margarita, Samar and took the three (3) homemade shotgun rifles which they surrendered to police officer Ernesto Damgo in the municipal building of Sta. Margarita, Samar.[7

The defense denied any liability of the accused-appellants for the crime charged. Buenaventura Villas testified that he stayed in his house in Barangay Agrupacion, Sta. Margarita, Samar on June 2, 1993 and spent the entire day in the balcony removing kernel from the corncob. Buenaventura denied ownership of any homemade shotgun rifle locally known as bardog. He attributed the instant criminal imputation against him to the enmity allegedly harbored by Artemio Casaljay when he fired the latter as tenant from his landholdings several years ago; and due to political differences with the deceased, Manuel Correche, and his relatives.[8

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Likewise, appellant Eduardo Villas claimed that he was in the house with his father, Buenaventura, on the same day of June 2, 1993 for the reason that he was suffering from fever.[9

Their testimonies were corroborated by Yolanda C. Magbutay whose house is just twenty (20) meters away across the street from the house of the accused in Barangay Agrupacion, Sta. Margarita, Samar. Yolanda testified that she saw Buenaventura at the balcony of his house removing kernel from the corncob when she cleaned her yard in the early morning of June 2, 1993. On the same day, she went to buy milled corn from Buenaventura in the latters house. While inside the house, she learned that Eduardo was suffering from fever.[10

The wife of Buenaventura Villas, Piarita Villas, was the Barangay Captain of Barangay Agrupacion, Sta. Margarita, Samar from 1989 up to 1994. Piarita confirmed in court the testimonies of the accused that her husband, Buenaventura, and her son, Eduardo, were both in their house in Barangay Agrupacion on June 2, 1993 which was the same day when Manuel Correche was killed in Sitio Hi-olangwan, Barangay Agrupacion, Sta. Margarita, Samar.[11 As possible motive for the malicious indictment against her husband and son in the killing of Manuel Correche, she disclosed that during the national elections in 1992, the Villases supported the candidacy of then incumbent Mayor Loreto Santiago while Artemio Casaljay, Manuel Correche and Gerardo Verano supported the candidacy of Ely Gan for the mayoralty post in Sta. Margarita, Samar. She recalled that Artemio Casaljay, Manuel Correche and Gerardo Verano asked the Villases to support Ely Gan but the latter refused hence, they harbored grudge against the Villases.[12

For his defense, appellant Dandy F. Alvarez testified that he is a native of Barangay Sta. Elena, Gandara, Samar and that he has been known by the name Dandy Angelio only. He was adopted by and had since been living with his grandfather, Hipolito Francisco, in the said place. On June 2, 1993, he was making copra in the coconut farm of his grandfather in Sta. Elena, Gandara, Samar. He started gathering coconuts in the said farm as of the last day of May 1992 and was able to finish his work only on June 5, 1993. He sold the copra to Victoriano Galban.[13

Victoriano Galvan, Barangay Captain of Barangay Sta. Elena, Gandara, Samar declared that he bought some 145 kilos of copra from Dandy Alvarez on June 4, 1993.[14

After analyzing the evidence on record, the trial court made the following findings:

[T]he prosecution has satisfactorily established that the accused Dandy Alvarez alias Dandy Angelio and Eduardo Villas alias Eddie shot, with homemade shotguns locally known as

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Bardog, the victim Manuel Correche alias Botchoy. The prosecution witnesses Nenita Correche and Artemio Casaljay saw these two accused when they aimed and fired their rifles (bardog) at Manuel Correche alias Botchoy, who was hit on his chest. It was accused Dandy Alvarez alias Dandy Angelio who first shot the victim. Nenita Correche and Artemio Casaljay declared that Dandy Alvarez alias Dandy Angelio was on a prone position (naka-dapa) pointing his homemade shotgun (bardog) to the victim, with the tip of the barrel still smoking after it was fired. After the first explosion, the victim slowly fell down and it was at this instant when accused Eduardo Villas alias Eddie aimed and fired his homemade shotgun to the victim who was thereby hit also on his hand. The medical findings dovetail with these testimonies of the witnesses that the victim was hit on his chest and hand. Both Dandy Alvarez alias Dandy Angelio and Eduardo Villas alias Eddie were only about 5 meters from Nenita Ciorreche and Artemio Casaljay, because the said two accused were on the front left side of Nenita Correche and Artemio Casaljay. The time was 8:00 oclock in the morning and the place where the said accused were seen was abounding merely with some "kogon" grasses which were not very tall. After they fired, the said two accused stood and ran away and they were again seen by Nenita Correche and Artemio Casaljay.

x x x x

However, the Court found the claims of Nenita Correche and Artemio Casaljay that the three other accused, namely: Buenaventura Villas alias Boining, Norie Villas and Dangdang Bocatcat were at the scene where the victim Manuel Correche was shot to death by Dandy Alvarez alias Dandy Angelio and Eduardo Villas alias Eddie, undeserving of belief being inherently incredible. As Nenita Correche and Artemio Casaljay stated, accused Buenaventura Villas Alias Boining, Norie Villas and Dangdang Bocatcat allegedly stood up from the place where Dandy Alvarez alias Dandy Angelio and Eduardo Villas alias Eddie shot the victim. They further declared that while already standing with Norie and Dangdang, Buenaventura said that is enough, he is already dead. To the Court, theses claims of Nenita Correche and Artemio Casaljay are beyond any common human experience because the said three accused would not expose their identities by standing at a distance which was only about 5 meters to the group of Nenita Correche and Artemio Casaljay, after their companions Eduardo Villas alias Eddie and Dandy Alvarez alias Dandy Angelio shot the victim Manuel Correche, especially considering that it was only 8:00 oclock in the morning and they are all known to Nenita Correche and Artemio Casaljay as well as to the companions of the latter. Precisely, they were not seen when Dandy Alvarez alias Dandy Angelio and Eddie Villas shot the victim because it was natural for them to avoid being identified with Dandy and Eddie as the latter perpetrated a crime. Instead they would continue to conceal their identities by remaining in their hidden places. Again, the Courts attention was called to the claim of Nenita Correche that Buenaventura Villas alias Boining, Dangdang Bocatcat and Norie Villas were already standing at the place where Dandy Alvarez alias Dandy Angelio and Eduardo Villas alias Eddie shot the victim. If this were so, considering that said three accused were in their front about five meters away from them only, then Nenita and her companions would have been forewarned of the presence of armed men and Manuel Correche would be able to see his assailants and to avoid being shot at and hit. Aside from being inherently improbable, the testimony of Nenita Correche is contradicted by the claim of Artemio Casaljay when the latter declared that Buenaventura Villas, Norie Villas and Dangdang Bocatcat stood only after Dandy Alvarez and Eddie Villas shot the victim. Obviously, the foregoing facts and observations are patent earmarks of incredibility which render the claims and testimonies of Nenita Correche and Artemio Casaljay that Buenaventura Villas, Norie Villas and Dangdang Bocatcat were at the scene where the victim Manuel Correche was shot to death by Eddie Villas and Dandy Alvarez alias Dandy Angelio gravely doubtful and unconvincing. Perforce, the Court hereby rejects them being undeserving of faith and credence.

The assertion by prosecution witness Gerardo Verano that accused Buenaventura Villas alias Boining, Dangdang Bocatcat, Norie Villas and Dandy Alvarez alias Dandy Angelio left three Homemade shotguns in his house on June 6, 1993 in Barangay Curry, Sta. Margarita, Samar is in conflict with common human experience considering that Verano is a close relative of the victim Manuel Correche. x x x.[15

Consequently, the trial court ruled thus:

Wherefore, the Court hereby declares the accused DANDY ALVAREZ alias DANDY ANGELIO and EDUARDO VILLAS alias EDDIE guilty of Murder beyond reasonable doubt, as principal, and considering neither aggravating nor mitigating circumstances, hereby sentences each of them to suffer the penalty of reclusion perpetua and to pay the costs. The Court also hereby condemns the accused jointly and severally to indemnify the heirs of the victim Manuel Correche, in the amount of P50,000.00

In the service of their sentence, the accused shall be credited with the full period of their respective preventive imprisonment, if they had agreed voluntary in writing to abide by the same disciplinary rules imposed upon convicted prisoners; otherwise, they shall be entitled to only four-fifths thereof pursuant to Article 29 of the Revised Penal Code, as amended.

For insufficiency of evidence, the Court hereby declares the accused BUENAVENTURA VILLAS y CASURAO alias BOINING acquitted of the crime charged, with costs de oficio. The Court hereby orders his immediate release from confinement, unless he is detained for some other causes.

SO ORDERED.[16

Aggrieved by the Decision, Dandy Alvarez and Eduardo Villas jointly appealed to this Court with the following assignment of errors:

I

The Trial Court gravely erred in not applying this Courts decision in Tabayoyong[17 and in giving credence to prosecution witnesses Nenita Correches and Artemio Casaljays uncorroborated testimonies against the Appellants even as it had itself already characterized their testimonies as undeserving of any belief for being inherently incredible, beyond any common human experience, inherently improbable, patently incredible, gravely doubtful and unconvincing and undeserving of faith and credence, and had already acquitted the other accused on the bases of these characterizations.

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II

The Trial Court gravely erred in concluding that the Appellants guilt was proved beyond a reasonable doubt based only on the uncorroborated and already discredited testimonies of prosecution witnesses Nenita Correche and Artemio Casaljay even as the inherent unreliability of their testimonies and the Appelants innocence were confirmed by no less than the prosecution witnesses and the murder victims own blood relative and the Trial Courts finding of bad faith and fraud on the part of the prosecution.

The appellants contend that their co-accused Buenaventura Villas, Norie Villas and Danilo Bocatcat were acquitted by the trial court after it rejected the respective identifications made and uncorroborated testimonies of prosecution witnesses Nenita Correche and Artemio Casaljay. A fortiori, appellants claim they can not be convicted on the basis of the same uncorroborated testimonies of the prosecution witnesses which the trial court has characterized as undeserving of any belief for being inherently incredible, beyond any common human experience, inherently improbable, patently incredible, gravely doubtful and unconvincing and undeserving of faith and credence.

To support their contention, the appellants invoke the ruling of the Supreme Court in the case of People vs. Tabayoyong which specifically states, that:

It would be illogical and unfair for the trial court to convict [the] appellants on the basis of the testimony of [a witness] which was discredited by the [trial] court [which] so acquitted the alleged mastermind of the killing.[18

The reliance of the appellants on the ruling of this Court in the case of People vs. Tabayoyong is utterly misplaced. The said case involves different factual and legal issues whereby the Court was called upon to expound on the provision of Rule 119, Section 9 of the Revised Rules of Court on the discharge of an accused to be a state witness. Therein, the Court also had the opportunity to reiterate pertinent jurisprudence on the value of the testimony of a co-conspirator against the other accused in the light of the distinct facts obtaining in the said case. Hence, a certain accused therein, Francisco Garlejo, was discharged from the Information so that he could be utilized as a state witness by the prosecution against the other accused. After trial, the alleged mastermind in the crime, Westrimundo Tabayoyong, was acquitted by the trial court on account of the unreliability of the witness, Fancisco Garlejo, while it found the other accused guilty of the crime of murder principally on the basis of the testimony of the same witness. This Court reversed the decision on appeal on the ground that the prosecution failed to prove the guilt of the accused-appellants beyond reasonable doubt inasmuch as it relied on evidence that is polluted and corrupt. We ruled therein that:

[I]t should be remembered that the testimony of a discharged defendant, though admissible, is still subject to the tests on credibility as any other testimonial evidence. Thus, although an

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order of discharge of an accused issued by the trial court raise a presumption that all the requisites for its issuance in fact exist, and therefore that the discharge is in order, the same Court is not duty bound to believe the testimony of the discharged defendant and pronounce a judgment of conviction against the remaining accused merely on the strength of such testimony.

Furthermore, it is also well-settled rule that the testimony of a self-confessed accomplice or co-conspirator imputing the blame for the killing and implicating his co-accused cannot by itself and without corroboration, be considered as proof to a moral certainty that the latter had committed or participated in the commission of the crime. Thus, it is required that the testimony be substantially corroborated by other evidence in all its material points.[19

The reason for the abovecited rule is that the testimony of a co-conspirator proceeds from a polluted source. It must be received with caution because, as is usual with human nature, a culprit, confessing a crime, is likely to put the blame as far as possible on others rather than himself.[20

In the case at bench, the principal witness for the prosecution is Nenita Correche who is the widow of the victim, Manuel Correche. Unlike an accused-turned-state-witness, her sole interest in this case is to seek justice for her deceased husband. She would not callously implicate the appellants in a very grave offense of murder if it were not true that they are the perpetrators thereof. And even if we assume, arguendo, that revenge were the normal reaction of one betrayed, harmed or otherwise of one who has lost a loved one, such as Nenita in this case, it does not follow that her desire to avenge such betrayal, harm or loss would include implicating even innocent persons.[21

Notably, the trial court did not accord full faith and credence to the identification made by Nenita Correche of erstwhile accused Buenaventura Villas as one of the perpetrators of the crime. That fact, however, does not entirely impugn her credibility as a witness relative to the other aspects of the case, contrary to what the appellants would want to impress upon this Court. It can be gleaned from the appealed decision that the trial court found as sufficiently convincing the testimony of Nenita as regards her identification of the appellants as the perpetrators of the crime. The settled rule is that the testimony of a witness may be believed in part and disbelieved in part as the corroborative evidence or improbabilities of the case may require.[22 Even where a witness has been found to have deliberately falsified the truth in some particulars, it is not required that the whole of his testimony be rejected.[23

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Consequently, the pertinent facts of this case clearly show that at the time Manuel Correche was killed, his wife Nenita, together with Ramon Correche, Gorgonia Correche and Artemio Casaljay were present. Nenita positively identified appellant Dandy Alvarez as the person whom she saw, almost simultaneously with the first gunfire that hit her husband on the chest, holding a homemade shotgun rifle whose muzzle was still emitting smoke, at a distance of merely five (5) meters away. As correctly observed by the Solicitor General, the emission of smoke from the muzzle of a gun is an indication that it had just been fired; and that under the circumstances, it is logical to conclude that appellant Dandy Alvarez was the author of the said first gunfire. Appellant Eduardo Villas was also positively identified by the same prosecution witness as the person who approached Manuel, who had fallen to the ground after having been hit from the first gunfire, and shot him on his forearm with the use of a similar weapon (bardog).

The identification of the appellants by Nenita cannot be doubted on account of their proximity to the said prosecution witness at the time when the shooting incident occurred around 8:30 oclock in the morning. In addition, Nenita and appellant Eduardo Villas had been barrio mates for a long time in Barangay Agrupacion, Sta. Margarita, Samar.

The guilt of the appellants for the crime charged was established beyond reasonable doubt by the testimony of Nenita Correche which We found credible as against appellants Dandy Alvarez and Eduardo Villas. In the course of her testimony, Nenita clearly and positively identified in court appellants Dandy Alvarez and Eduardo Villas as the persons who shot her husband to death. She was consistent in her testimony and did not waiver even during the cross-examination of the defense counsel. The same need not be supported by any corroborative evidence contrary to the view advanced by the appellants in their brief. It is settled that the testimony of a single witness is sufficient to support a conviction so long as it is clear and straightforward and worthy of credence by the trial court.[24

In any event, Artemio Casaljay was also presented as a witness by the prosecution during the trial. This witness corroborated the testimony of Nenita Correche on material points. In addition, the physical findings in the Post Mortem Report on the cadaver of Manuel Correche, support the testimonies of these two prosecution witnesses that the said victim was shot by the appellants on the chest and on the forearm causing his instantaneous death.

In view of the foregoing, the defense of alibi of the appellants is unavailing. The defense of alibi cannot prevail over the positive identification of the appellants by the prosecution witnesses as the perpetrators of the crime.[25 Additionally, motive for the commission of the crime becomes irrelevant where there is affirmative evidence of the identity of the malefactors and of their acts or omissions such as in the case at bench[26

The crime committed for the killing of Manuel Correche is murder in view of the attendant qualifying circumstance of treachery. There is treachery when the offender commits any of

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the crimes against persons, 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.[27 The evidence on record has established that Manuel was totally unaware of the evil design of the appellants who waited for him, concealed behind cogon grasses, while he was negotiating a trail with his companions on the way to their farm to work. Being unarmed, he could not offer any resistance against the powerful weapons of his attackers nor could he make any attempt to escape from their unexpected and sudden attack.

Likewise, the confluence of the circumstances in this case sufficiently proves beyond reasonable doubt the existence of conspiracy between appellants Dandy Alvarez and

[Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-19052           December 29, 1962

MANUEL F. CABAL, petitioner, vs.HON. RUPERTO KAPUNAN, JR., and THE CITY FISCAL OF MANILA, respondents.

Francisco Carreon for petitioner.Assistant City Fiscal Manuel T. Reyes for respondent City of Manila.

CONCEPCION, J.:

This is an original petition for certiorari and prohibition with preliminary injunction, to restrain the Hon. Ruperto Kapunan, Jr., as Judge of the Court of First Instance of Manila, from further proceeding in Criminal Case No. 60111 of said court, and to set aside an order of said respondent, as well as the whole proceedings in said criminal case. .

On or about August 1961, Col. Jose C. Maristela of the Philippine Army filed with the Secretary of Nation Defense a letter-complaint charging petitioner Manuel Cabal, then Chief of Staff of the Armed Forces of the Philippines, with "graft, corrupt practices, unexplained wealth, conduct unbecoming of an officer and gentleman dictatorial tendencies, giving false statements of his as sets and liabilities in 1958 and other equally reprehensible acts". On September 6, 1961, the President of the Philippines created a committee of five (5) members, consisting of former Justice Marceliana R. Montemayor, as Chairman, former Justices Buenaventura Ocampo and Sotero Cabahug, and Generals Basilio J. Valdez and Guillermo B. Francisco, to investigate the charge of unexplained wealth contained in said letter-complaint and submit its report and recommendations as soon as possible. At the beginning of the investigation, on September 15, 1961, the Committee, upon request of complainant Col. Maristela, or considered petitioner herein to take the witness stand and be sworn to as witness for Maristela, in support of his aforementioned charge of unexplained wealth. Thereupon, petitioner objected, personally and through counsel, to said request of Col. Maristela and to the aforementioned order of the Committee, invoking his constitutional right against self-incrimination. The Committee insisted that petitioner take the witness stand and be sworn to, subject to his right to refuse to answer such questions as may be incriminatory. This notwithstanding, petitioner respectfully refused to be sworn to as a witness to take the witness stand. Hence, in a communication dated September 18, 1961, the Committee referred the matter to respondent City Fiscal of Manila, for such action as he may deem proper. On September 28, 1961, the City Fiscal filed with the Court of First Instance of Manila a "charge" reading as follows:

The undersigned hereby charges Manuel F. Cabal with contempt under section 580 of the Revised Administrative Code in relation to sections I and 7, Rule 64 of the Rules of Court, committed as follows:

That on or about September 15, 1961, in the investigation conducted at the U.P. Little Theater:, Padre Faura, Manila, by the Presidential Committee, which was created by the President of the Republic of the Philippines in accordance with law to investigate the charges of alleged acquisition by respondent of unexplained wealth and composed of Justice Marceliano Montemayor, as Chairman, and Justices Buenaventura Ocampo and Sotero Cabahug and Generals Basilio Valdez and Guillermo Francisco, as members, with the power, among others, to compel the attendance of witnesses and take their testimony under oath, respondent who was personally present at the time before the Committee in compliance with

Eduardo Villas in ambush for their victim, Manuel Correche. At a distance of about five (5) meters, Dandy suddenly sprang from his hiding place and shot Manuel on the chest. In an apparent resolve to kill their victim, Eduardo also shot Manuel with his weapon hitting the latter on the forearm. Thereafter, the two appellants simultaneously fled from the scene of the crime. Flight is also an indication of guilt. Hence, both appellants are equally guilty of the crime of murder.

Incidentally, at the time of the commission of the crime of murder in June 1993 in the case at bench, the death penalty was still proscribed.

a subpoena duly issued to him, did then and there willfully, unlawfully, and contumaciously, without any justifiable cause or reason refusal and fail and still refuses and fails to obey the lawful order of the Committee to take the witness stand, be sworn and testify as witness in said investigation, in utter disregard of the lawful authority of the Committee and thereby obstructing and degrading the proceedings before said body.

Wherefore, it is respectfully prayed that respondent be summarily adjudged guilty of contempt of the Presidential Committee and accordingly disciplined as in contempt of court imprisonment until such time as he shall obey the subject order of said committee.

This charge, docketed as Criminal Case No. 60111 of said court, was assigned to Branch XVIII thereof, presided over by respondent Judge. On October 2, 1961, the latter issued an order requiring petitioner to show cause and/or answer the charge filed against him within ten (10) days. Soon thereafter, or on October 4, 1961, petitioner filed with respondent Judge a motion to quash the charge and/or order to show cause, upon the ground: (1) that the City Fiscal has neither authority nor personality to file said char and the same is null and void, for, if criminal, the charge has been filed without a preliminary investigation, and, civil, the City Fiscal may not file it, his authority in respect of civil cases being limited to representing the City of Manila; (2) that the facts charged constitute no offense for section 580 of the Revised Administrative Code, upon which the charge is based, violates due process, in that it is vague and uncertain as regards the offense therein defined and the fine imposable therefor and that it fail to specify whether said offense shall be treated also contempt of an inferior court or of a superior court (3) that more than one offense is charged, for the contempt imputed to petitioner is sought to be punished as contempt of an inferior court, as contempt of a superior court an as contempt under section 7 of Rule 64 of the Rules Court; (4) that the Committee had no power to order an require petitioner to take the witness stand and be sworn to, upon the request of Col. Maristela, as witness for the latter, inasmuch as said order violates petitioner's constitutional right against self-incrimination.

By resolution dated October 14, 1961. respondent Judge denied said motion to quash. Thereupon, or on October 20, 1961, petitioner began the present action for the purpose adverted to above, alleging that, unless restrained by this court, respondent Judge may summarily punish him for contempt, and that such action would not be appealable.

In their answer, respondents herein allege, inter alia, that the investigation being conducted by the Committee above referred to is administrative, not criminal, in nature; that the legal provision relied upon by petitioner in relation to preliminary investigations (Section '08-C, Republic Act No. 409, as amended by Republic Act No. 1201) is inapplicable to contempt proceedings; that, under section 580 of the Revised Administrative Code. contempt against an administrative officer is to be dealt with as contempt of a superior court; that petitioner herein is charged with only one offense; and that, tinder the constitutional guarantee against self-incrimination, petitioner herein may refuse, not to take the witness stand, but to answer incriminatory questions.

At the outset, it is not disputed that the accused in a criminal case may refuse, not only to answer incriminatory questions, but, also, to take the witness stand (3 Wharton's Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before the aforementioned Committee is civil or criminal in character.

In this connection, it should be noted that, although said Committee was created to investigate the administrative charge of unexplained wealth, there seems to be no question that Col. Maristela does not seek the removal of petitioner herein as Chief of Staff of the Armed Forces of the Philippines. As a matter of fact he no longer holds such office. It seems, likewise conceded that the purpose of the charge against petitioner is to apply the provisions of Republic Act No. 1379, as amended, otherwise known as the Anti-Graft Law, which authorizes the forfeiture to the State of property of a public officer or employee which is manifestly out of proportion to his salary as such public officer or employee and his other lawful income

WHEREFORE, the appealed Decision of the Regional Trial Court of Calbayog City, Branch 32, in Criminal Case No. 1696 is AFFIRMED.

SO ORDERED.

Bellosillo, (Chairman), Mendoza, Quisumbing, and Buena, JJ., concur.

and the income from legitimately acquired property. Such for forfeiture has been held, however, to partake of the nature of a penalty.

In a strict signification, a forfeiture is a divestiture property without compensation, in consequence of a default an offense, and the term is used in such a sense in this article. A forfeiture, as thus defined, is imposed by way of punishment not by the mere convention of the parties, but by the lawmaking power, to insure a prescribed course of conduct. It is a method deemed necessary by the legislature to restrain the commission of an offense and to aid in the prevention of such a offense. The effect of such a forfeiture is to transfer the title to the specific thing from the owner to the sovereign power (23 Am. Jur. 599) (Emphasis ours.)

In Black's Law Dictionary a "forfeiture" is defined to be "the incurring of a liability to pay a definite sum of money as the consequence of violating the provisions of some statute or refusal to comply with some requirement of law." It may be said to be a penalty imposed for misconduct or breach of duty. (Com. vs. French, 114 S.W. 255.)

As a consequence, proceedings for forfeiture of proper are deemed criminal or penal, and, hence, the exemption of defendants in criminal case from the obligation to be witnesses against themselves are applicable thereto.

Generally speaking, informations for the forfeiture of goods that seek no judgment of fine or imprisonment against any person are deemed to be civil proceedings in rem. Such proceedings are criminal in nature to the extent that where the person using the res illegally is the owner or rightful possessor of it, the forfeiture proceeding is in the nature of a punishment. They have been held to be so far in the nature criminal proceedings that a general verdict on several count in an information is upheld if one count is good. According to the authorities such proceedings, where the owner of the property appears, are so far considered as quasi-criminal proceeding as to relieve the owner from being a witness against himself and to prevent the compulsory production of his books and papers. ... (23 Am. Jur. 612; emphasis ours.)

Although the contrary view formerly obtained, the late decisions are to the effect that suits for forfeitures incurred by the commission of offenses against the law are so far of quasi-criminal nature as to be within the reason of criminal proceedings for all purposes of ... that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself. .... It has frequently been held upon constitutional grounds under the various State Constitution, that a witness or party called as witness cannot be made to testify against himself as to matters which would subject his property to forfeiture. At early common law no person could be compelled to testify against himself or to answer any question which would have had a tendency to expose his property to a forfeiture or to form a link in a chain of evidence for that purpose, as well as to incriminate him. Under this common-law doctrine of protection against compulsory disclosures which would tend to subject the witness to forfeiture, such protection was claimed and availed of in some early American cases without placing the basis of the protection upon constitutional grounds. (23 Am. Jur., 616; emphasis ours.)

Proceedings for forfeitures are generally considered to be civil and in the nature of proceedings in rem. The statute providing that no judgment or other proceedings in civil cases shall be arrested or reversed for any defect or want of form is applicable to them. In some aspects, however, suits for penalties and forfeitures are of quasi-criminal nature and within the reason of criminal proceedings for all the purposes of ... that portion of the Fifth Amendment which declares, that no person shall be compelled in any criminal case to be a witness against himself. The proceeding is one against the owner, as well as against the goods; for it is his breach of the laws which has to be proved to establish the forfeiture and his property is sought to be forfeited. (15 Am. Jur., Sec. 104, p. 368; emphasis ours.)lawphil.net

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-29169           August 19, 1968

ROGER CHAVEZ, petitioner, vs.

The rule protecting a person from being compelled to furnish evidence which would incriminate him exists not only when he is liable criminally to prosecution and punishment, but also when his answer would tend to expose him to a ... forfeiture .... (58 Am. Jur., See. 43, p. 48; emphasis ours.)

As already observed, the various constitutions provide that no person shall be compelled in any criminal case to be a witness against himself. This prohibition against compelling a person to take the stand as a witness against himself applied only to criminal, quasi-criminal, and penal proceedings, including a proceeding civil in form for forfeiture of property by reason of the commission of an offense, but not a proceeding in which the penalty recoverable is civil or remedial in nature, .... (58 Am. Jur., Sec. 44, p. 49: emphasis ours.)

The privilege of a witness not to incriminate himself is not infringed by merely asking the witness a question which he refuses to answer. The privilege is simply an option of refusal, and not a prohibition of inquiry. A question is not improper merely because the answer may tend to incriminate but, where a witness exercises his constitutional right not to answer, a question by counsel as to whether the reason for refusing to answer is because the answer may tend to incriminate the witness is improper.

The possibility that the examination of the witness will be pursued to the extent of requiring self-incrimination will not justify the refusal to answer questions. However, where the position of the witness is virtually that of an accused on trial, it would appear that he may invoke the privilege in support of a blanket refusal to answer any and all questions. (C.J.S., p. 252; emphasis ours.)

A person may not be compelled to testify in an action against him for a penalty or to answer any question as a witness which would subject him to a penalty or forfeiture, where the penalty or forfeiture is imposed as a vindication of the public justice of the state.

In general, both at common law and under a constitution provision against compulsory self-incrimination, a person may not be compelled to answer any question as a witness which would subject him to a penalty or forfeiture, or testify in action against him for a penalty.

The privilege applies where the penalty or forfeiture recoverable, or is imposed in vindication of the public justice the state as a statutory fine or penalty, or a fine or penalty for violation of a municipal ordinance, even though the action or proceeding for its enforcement is not brought in a criminal court but is prosecuted through the modes of procedure applicable to ordinary civil remedy. (98 C. J. S., pp. 275-6.)

Thus, in Boyd vs. U.S. (116 U.S. 616, 29 L. ed. 746), it was held that the information, in a proceeding to declaration a forfeiture of certain property because of the evasion of a certain revenue law, "though technically a civil proceeding is in substance and effect a criminal one", and that suits for penalties and forfeitures are within the reason criminal proceedings for the purposes of that portion the Fifth Amendment of the Constitution of the U.S. which declares that no person shall be compelled in a criminal case to be a witness against himself. Similarly, a proceeding for the removal of an officer was held, in Thurston vs. Clark (107 Cal. 285, 40 pp. 435, 437), to be in substance criminal, for said portion of the Fifth Amendment applies "to all cases in which the action prosecution is not to establish, recover or redress private and civil rights, but to try and punish persons charged with the commission of public offenses" and "a criminal case is a action, suit or cause instituted to punish an infraction the criminal laws, and, with this object in view, it matters not in what form a statute may clothe it; it is still a criminal case ...". This view was, in effect confirmed in Lees vs. U.S. (37 L. ed. 1150-1151). Hence, the Lawyer Reports Annotated (Vol. 29, p. 8), after an extensive examination of pertinent cases, concludes that said constitutional provision applies whenever the proceeding is not "purely remedial", or intended "as a redress for a private grievance", but primarily to punish "a violation of duty or a public wrong and to deter others from offending in likewise manner. ...".

THE HONORABLE COURT OF APPEALS, THE PEOPLE OF THE PHILIPPINES and THE WARDEN OF THE CITY JAIL OF MANILA, respondents.

Estanislao E. Fernandez and Fausto Arce for petitioner. Office of the Solicitor General for respondents.

SANCHEZ, J.:

The thrust of petitioner's case presented in his original and supplementary petitions invoking jurisdiction of this Court is that he is entitled, on habeas corpus, to be freed from imprisonment upon the ground that in the trial which resulted in his conviction1 he was denied his constitutional right not to be compelled to

We are unmindful of the doctrine laid down in Almeda vs. Perez, L-18428 (August 30, 1962) in which the theory that, after the filing of respondents' answer to a petition for forfeiture under Republic Act No. 1379, said petition may not be amended as to substance pursuant to our rules of criminal procedure, was rejected by this Court upon the ground that said forfeiture proceeding in civil in nature. This doctrine refers, however, to the purely procedural aspect of said proceeding, and has no bearing the substantial rights of the respondents therein, particularly their constitutional right against self-incrimination.

WHEREFORE, the writ prayed for is granted and respondent Judge hereby enjoined permanently from proceeding further in Criminal Case No. 60111 of the Court of First Instance of Manila. It is so ordered.

Padilla, Bautista Angelo, Labrador, Reyes, J.B.L., Barrera, Paredes, Dizon, Regala and Makalintal, JJ., concur.Bengzon, C.J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. Nos. 111206-08 October 6, 1995

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.CLAUDIO TEEHANKEE, JR., accused-appellant.

 

PUNO, J.:

Three (3) separate Informations were filed against accused Claudio Teehankee, Jr. for the shooting of Roland John Chapman, Jussi Olavi Leino and Maureen Hultman. Initially, he was charged with: MURDER for the killing of ROLAND CHAPMAN, and two (2) FRUSTRATED MURDER for the shooting and wounding of JUSSI LEINO and MAUREEN HULTMAN. When Hultman died on October 17, 1991, during the course of the trial, the Information for Frustrated Murder against accused was amended to MURDER. 1

The Information for murder in Criminal Case No. 91-4605 thus reads:

That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with and shoot with the said handgun Roland John Chapman who war hit in the chest, thereby inflicting mortal wounds which directly caused the death of said Roland John Chapman.

testify against himself. There is his prayer, too, that, should he fail in this, he be granted the alternative remedies of certiorari to strike down the two resolutions of the Court of Appeals dismissing his appeal for failure to file brief, and of mandamus to direct the said court to forward his appeal to this Court for the reason that he was raising purely questions of law.

The indictment in the court below — the third amended information — upon which the judgment of conviction herein challenged was rendered, was for qualified theft of a motor vehicle, one (1) Thunderbird car, Motor No. H9YH-143003, with Plate No. H-16648 Pasay City '62 together with its accessories worth P22,200.00. Accused were the following: Petitioner herein, Roger Chavez, Ricardo Sumilang alias "Romeo Vasquez", Edgardo P. Pascual alias "Ging" Pascual, Pedro Rebullo alias "Pita", Luis Asistio alias "Baby" Asistio, Lorenzo Meneses alias "Lory" Meneses, Peter Doe, Charlie Doe and Paul Doe.2

Contrary to law. 2

The Amended Information for Murder in Criminal Case No. 91-4606 reads:

That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the said Claudio Teehankee, Jr. y Javier, armed with a handgun, with intent to kill and evident premeditation, and by means of treachery, did then and there wilfully, unlawfully and feloniously attack, assault and shoot with the said handgun Maureen Navarro Hultman who was hit in the head, thereby inflicting moral wounds which directly caused the death of the said Maureen Hultman.

CONTRARY TO LAW. 3

Finally, the Information for Frustrated Murder in Criminal Case No. 91-4607 reads:

That on or about the 13th day of July, 1991, in the Municipality of Makati, Metro Manila, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, while armed with a handgun, with intent to kill, treachery and evident premeditation did then and there wilfully, unlawfully and feloniously attack, assault and shoot one Jussi Olavi Leino on the head, thereby inflicting gunshot wounds, which ordinarily would have caused the death of said Jussi Olavi Leino, thereby performing all the acts of execution which would have produced the crime of murder as a consequence, but nevertheless did not produce it by reason of cause or causes independent of his will, that is, due to the timely and able medical assistance rendered to said Jussi Olavi Leino which prevented his death.

Contrary to law. 4

In the two (2) Informations for frustrated murder initially filed against accused, bail was set at twenty thousand pesos (P20,000.00) each. No bail was recommended for the murder of Roland John Chapman. A petition for bail was thus filed by accused. Hearing was set on August 9, 1991, while his arraignment was scheduled on August 14, 1991.

At the hearing of the petition for bail on August 9, 1991, the prosecution manifested that it would present the surviving victim, Jussi Leino, to testify on the killing of Chapman and on the circumstances resulting to the wounding of the witness himself and Hultman. Defense counsel Atty. Rodolfo Jimenez objected on the ground that the incident pending that day was hearing of the evidence on the petition for bail relative to the murder charge for the killing of Chapman only. He opined that Leino's testimony on the frustrated murder charges with respect to the wounding of Leino and Hultman would be irrelevant. 5

Private prosecutor, Atty. Rogelio Vinluan, countered that time would be wasted if the testimony of Leino would be limited to the killing of Chapman considering that the crimes for which accused were charged involved only one continuing incident. He pleaded that Leino should be allowed to testify on all three (3) charges to obviate delay and the inconvenience of recalling him later to prove the two (2) frustrated murder charges. 6

By way of accommodation, the defense suggested that if the prosecution wanted to present Leino to testify on all three (3) charges, it should wait until after the arraignment of accused on August 14, 1991. The defense pointed out that if accused did not file a petition for bail, the prosecution would still have to wait until after accused had been arraigned before it could present Leino. 7

Averred in the aforesaid information was that on or about the 14th day of November, 1962, in Quezon City, the accused conspired, with intent of gain, abuse of confidence and without the consent of the owner thereof, Dy Sun Hiok y Lim, in asporting the motor vehicle above-described.

Upon arraignment, all the accused, except the three Does who have not been identified nor apprehended, pleaded not guilty.1äwphï1.ñët

On July 23, 1963, trial commenced before the judge presiding Branch IX of the Court of First Instance of Rizal in Quezon City.

The private prosecutor agreed to defer the hearing on the petition for bail until after arraignment of accused on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. The defense counsel acceded. 8

Upon arraignment, accused pleaded not guilty to the three (3) charges. The prosecution then started to adduce evidence relative to all three (3) cases. No objection was made by the defense. 9

A replay of the facts will show that on July 12, 1991, Jussi Olavi Leino invited Roland Chapman, Maureen Hultman and other friends for a party at his house in Forbes Park, Makati. The party started at about 8:30 p.m. and ended at past midnight. They then proceeded to Roxy's, a pub where students of International School hang out. 10 After an hour, they transferred to Vintage, another pub in Makati, where they stayed until past 3:00 a.m. of July 13, 1991. Their group returned to Roxy's to pick up a friend of Maureen, then went back to Leino's house to eat. 11

After a while, Maureen requested Leino to take her home at Campanilla Street, Dasmariñas Village, Makati. Chapman tagged along. 12 When they entered the village, Maureen asked Leino to stop along Mahogany Street, about a block away from her house in Campanilla Street. She wanted to walk the rest of the way for she did not like to create too much noise in going back to her house. She did not want her parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listened to the radio. 13

Leino and Maureen started walking on the sidewalk along Mahogany Street. When they reached the corner of Caballero and Mahogany Streets, a light-colored Mitsubishi box-type Lancer car, driven by accused Claudio Teehankee, Jr., came up from behind them and stopped on the middle of the road. Accused alighted from his car, approached them, and asked: "Who are you? (Show me your) I.D." Leino thought accused only wanted to check their identities. He reached into his pocket, took out his plastic wallet, and handed to accused his Asian Development Bank (ADB) I.D. 14 Accused did not bother to look at his I.D. as he just grabbed Leino's wallet and pocketed it. 15

Chapman saw the incident. All of a sudden, he manifested from behind Leino and inquired what was going on. He stepped down on the sidewalk and asked accused: "Why are you bothering us?" Accused pushed Chapman, dug into his shirt, pulled out a gun and fired at him. Chapman felt his upper body, staggered for a moment, and asked: "Why did you shoot me?" Chapman crumpled on the sidewalk. Leino knelt beside Chapman to assist him but accused ordered him to get up and leave Chapman alone. 16

Accused then turned his ire on Leino. He pointed gun at him and asked: "Do you want a trouble?" Leino said "no" and took a step backward. The shooting initially shocked Maureen. When she came to her senses, she became hysterical and started screaming for help. She repeatedly shouted: "Oh, my God, he's got a gun. He's gonna kill us. Will somebody help us?"

All the while, accused was pointing his gun to and from Leino to Maureen, warning the latter to shut up. Accused ordered Leino to sit down on the sidewalk. Leino obeyed and made no attempt to move away. Accused stood 2-3 meters away from him. He knew he could not run far without being shot by accused.

Maureen continued to be hysterical. She could not stay still. She strayed to the side of accused's car. Accused tried but failed to grab her. Maureen circled around accused's car, trying to put some distance between them. The short chase lasted for a minute or two. Eventually, accused caught Maureen and repeatedly enjoined her to shut up and sit down beside Leino. 17

Maureen finally sat beside Leino on the sidewalk. Two (2) meters away and directly in front of them stood accused. 18 For a moment, accused turned his back from the two. He faced them again and shot Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He

The trial opened with the following dialogue, which for the great bearing it has on this case, is here reproduced:.

COURT:

The parties may proceed.

FISCAL GRECIA:

Our first witness is Roger Chavez [one of the accused].

lifted his head to see what was happening and saw accused return to his car and drive away. 19

Leino struggled to his knees and shouted for help. He noticed at least three (3) people looking on and standing outside their houses along Caballero Street. 20 The three were: DOMINGO FLORECE, a private security guard hired by Stephen Roxas to secure his residence at #1357 Caballero Street, Dasmariñas Village, Makati; 21 VICENTE MANGUBAT, a stay-in driver of Margarita Canto, residing at #1352 Caballero Street, corner Mahogany Street, Dasmariñas Village; 22 and AGRIPINO CADENAS, a private security guard assigned at the house of Rey Dempsey, located at #1351 Caballero Street, corner Mahogany Street, Dasmariñas Village. 23

Security guards Florece and Cadenas were then on duty at the house of their employer, while driver Mangubat was in his quarters, preparing to return to his own house. These three (3) eyewitnesses heard the first gunshot while at their respective posts.

Upon hearing the first shot, Florece went out to Caballero Street to see what was happening, while Mangubat and Cadenas peeped over the fence of their employer's house and looked out to Caballero Street. Each saw a man (Chapman) sprawled on the ground, another man (Leino) sitting on the sidewalk, a third man standing up ad holding a gun and a woman (Hultman). They saw the gunman shoot Leino and Hultman and flee aboard his Lancer car. However, because of Florece's distance from the scene of the crime, 24 he was not able to discern the face of the gunman. He saw the control numbers of the gunman's car as 566. He described the gateway car as a box-type Lancer, its color somewhat white ("medyo maputi"). 25 Cadenas noticed in full the plate number of the getaway car and gave it as PDW 566. He described the car as silver metallic gray. 26 Both Cadenas and Mangubat saw the gunman's face. They had a good look at him. Cadenas was then a mere four (4) meters away from the gunman's car, 27 while Mangubat was about twenty (20) meters away from the scene of the crime. 28 The three confirmed that the corner of Caballero and Mahogany Streets where the shooting took place was adequately illuminated by a Meralco lamppost at the time of the incident. 29

After the gunman sped away, Mangubat ran outside his employer's house and went near the scene of the crime. He noticed security guard Florece along Caballero Street. A man on a bike passed by and Mangubat requested him to report the shooting incident to the security officers of Dasmariñas Village. 30 Meanwhile, Florece returned to his post and narrated to his employer, Mrs. Helen Roxas, what he saw. Mrs. Roxas repaired to the crime scene while Florece noted the incident in his logbook (Exhibit "B"). He also jotted down the license plate control number of the gunman's car as 566. 31

The security guards of Dasmariñas Village came after a few minutes. They rushed Leino and Maureen to the Makati Medical Center for treatment. 32

The Makati police and agents of the NBI also came. Patrolman JAMES BALDADO of the Makati police, together with SPO3 ALBERTO FERNANDEZ, investigated the incident. 33 Their initial investigation disclosed that the gunman's car was a box-type Mitsubishi Lancer with plate control number 566. They checked the list of vehicles registered with the village Homeowners' Association and were able to track down two (2) Lancer cars bearing plate control number 566. One was registered in the name of JOSE MONTAÑO of 1823 Santan Street, Dasmariñas Village, with plate number PKX 566, and another was traced to accused CLAUDIO TEEHANKEE, JR., of 1339 Caballero Street, Dasmariñas Village, with plate number PDW 566.

SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the NBI, was also tasked by then NBI Director Alfredo Lim 34 to head a team to investigate the shooting. Ranin's team immediately proceeded to the house of Jose Montaño 35 where they found ahead of them the Makati police and operatives of the Constabulary Highway Patrol. Ranin tried to verify from Mrs. Montaño whether the white Lancer car registered in the name of Mr. Montaño and bearing plate number 566 was the gunman's car. Mrs. Montaño denied and declared they had already sold the car to Saldaña Enterprises. She averred the

ATTY. CARBON [Counsel for petitioner Chavez]:

I am quite taken by surprise, as counsel for the accused Roger Chavez, with this move of the Fiscal in presenting him as his witness. I object.

COURT:

On what ground, counsel? .

ATTY. CARBON:

car was being used by one Ben Conti, a comptroller in said company, who resides in Cubao, Quezon City. Mrs. Montaño called up her husband and informed him about the investigation. She also called up Conti and asked him to bring the car to the house. 36

Jose Montaño came around noon. Conti followed with white Lancer car. Ranin brought them to the NBI office for investigation, together with Lancer car. At the NBI Ranin inquired from Montaño the whereabouts of his car on July 12 and 13, 1991. Montaño informed him that the car was at the residence of his employee, Ben Conti, at E. Rodriguez Street, Cubao, Quezon City, the night of July 12, 1991. In the morning of July 13, 1991, Conti drove the car to their office at Saldaña Enterprises. Conti confirmed this information. Ranin received the same confirmation from two (2) NBI agents who made a countercheck of the allegation. Upon Ranin's request, Montaño left his car at the NBI parking lot pending identification by possible witnesses. 37

On July 14, 1991, a team of NBI agents conducted an on-the-spot investigation and neighborhood inquiry of the shooting incident. They interviewed Domingo Florece and asked him to report to their office the next day for further investigation. 38 They also interviewed Agripino Cadenas who was reluctant to divulge any information and even denied having witnessed the incident. Sensing his reluctance, they returned to Cadenas' post at Dasmariñas Village that night and served him a subpoena, inviting him to appear at the NBI office for investigation the next day. 39 The NBI agents also talked with Armenia Asliami, an Egyptian national residing at #1350 Caballero Street, Dasmariñas Village, near the scene of the crime. Asliami informed the agents that the gunman's car was not white but light gray. A foreign national, Asliami was afraid and refused to give a statement about the incident. The agents exerted every effort to convince Asliami to cooperate, assuring her of their protection. Ranin even asked a representative of the Egyptian embassy to coax Asliami to cooperate. They failed. 40

On July 15, 1991, Florece and Cadenas appeared at the NBI office as summoned. Florece readily executed a sworn statement. 41 Cadenas, however, continued to feign ignorance and bridled his knowledge of the incident. He was lengthily interviewed. At around 2:00 p.m., the NBI agents informed SOG Chief Ranin that Cadenas was still withholding information from them. Ranin talked to Cadenas in his office. Cadenas confided to Ranin his fear to get involved in the case. He was apprehensive that the gunman would harass or harm him or his family. After Ranin assured him of NBI protection, Cadenas relented. 42

The next day, July 16, 1991, Cadenas gave a full disclosure to Ranin. He described the gunman's car as a box-type Lancer with plate number PDW 566. He was brought to the NBI parking lot where Montaño's white Lancer car was parked to identify the gunman's car. Ranin asked Cadenas if Montaño's was the gunman's car. Cadenas replied that its color was different. Ranin directed him to look around the cars in the parking lot and to point the color that most resembled the color of the gunman's car. He pointed to a light gray car. Ranin told him that the color of the car he pointed to was not white but light gray. 43

Ranin then asked Cadenas if he could identify the gunman. Cadenas replied in the affirmative. Ranin led Cadenas to his office and showed him ten (10) pictures of different men (Exhibits "CC-1" to "CC-10) taken from the NBI files. One of the pictures belonged to accused Claudio Teehankee, Jr. Cadenas studied the pictures, picked accused's picture (Exhibit "CC-7"), and identified him as the gunman. Cadenas wrote his name and the date at the back of said picture. Atty. Alex Tenerife of the NBI then took down Cadenas' statement. 44

Ranin sent his agents and the witnesses to the Makati Regional Trial Court to apply for a search warrant. After a searching examination of the witnesses, Judge Rebecca Salvador issued a search warrant (Exhibit "RR"), authorizing the NBI to search and seize the silver metallic gray, 1983 Mitsubishi Lancer car owned by accused, bearing plate number PDW 566. Ranin and his agents drove to accused's house at #1339 Caballero Street, Dasmariñas Village, to implement the warrant. 45

On the ground that I have to confer with my client. It is really surprising that at this stage, without my being notified by the Fiscal, my client is being presented as witness for the prosecution. I want to say in passing that it is only at this very moment that I come to know about this strategy of the prosecution.

COURT (To the Fiscal):

You are not withdrawing the information against the accused Roger Chavez by making [him a] state witness?.

FISCAL GRECIA:

At accused's house, Ranin informed Mrs. Pilar Teehankee, mother of accused, of their search warrant. Ranin also told Mrs. Teehankee that they had orders from Director Lim to invite accused to the NBI office for investigation. Mrs. Teehankee informed them that accused was not in the house at that time. She excused herself, went to the kitchen and called up someone on the phone. 46

In the meantime, Ranin and his men slipped to the Teehankee garage and secured accused's car. After a while, Mrs. Teehankee joined them. Ranin asked her for the car keys but she told him that the keys were with accused. Upon Ranin's request, Mrs. Teehankee got in touch with accused on the phone. Ranin conversed with accused and invited him to the NBI for investigation. Accused assured Ranin that he would report to the NBI later that day. The agents then towed the car of accused to the NBI office. 47

At around 9:00 p.m., accused's brother, Raul Teehankee, arrived at the NBI office and waited for accused. Accused came, escorted by three (3) Makati policemen, after an hour. He informed them that he just came from the Makati police station where he was also investigated. He told Lim that he was given a statement to the Makati police and was brought to the PC Crime Laboratory for paraffin test. 48

Accused's NBI investigation started. Lim asked accused of the whereabouts of his Lancer car at the time of the shooting. Accused claimed that his car was involved in an accident a few weeks back and was no longer functioning. The car had been parked in his mother's house at Dasmariñas Village since then. Due to the lateness of the evening, the group decided to continue the investigation the following day. 49

The next day, July 17, 1991, after breakfast at the Manila Hotel, Lim pressed accused on what really happened at Dasmariñas Village. Accused said he did not see anything. Lim apprised accused that he would be confronted with some eyewitnesses. Accused sank into silence. 50

Lim directed Ranin to prepare a lineup at his office. Accused was requested to join the lineup composed of seven (7) men and he acceded. Cadenas was called from an adjoining room 51 and Ranin asked him to identify the gunman from the lineup. Forthwith, Cadenas pointed to accused. 52 Accused merely stared at Cadenas. 53

On the same day, then Asst. Director Epimaco Velasco, Ranin and two (2) other agents brought accused to Forbes Park for further identification by the surviving victim, Jussi Leino. Leino has just been discharged from the hospital the day before. Since Leino's parents were worried about his safety, they requested the NBI to conduct the identification of the gunman in Forbes Park where the Leinos also reside. The NBI agreed. 54

House security agents from the U.S. embassy fetched Leino at his house and escorted him and his father to a vacant house in Forbes Park, along Narra Avenue. After a couple of minutes, Leino was brought out of the house and placed in a car with slightly tinted windows. The car was parked about five (5) meters away from the house. Inside the car with Leino was his father, NBI-SOG Chief Salvador Ranin and a driver. Leino was instructed to look at the men who would be coming out of the house and identify the gunman from the lineup. 55

A group of five to six men (including accused) then came out of the unoccupied house, into the street, in a line-up. Leino noticed that one of them was wearing sunglasses. Since Leino could not yet speak at that time due to the extensive injury on his tongue, he wrote down on a piece of paper a request for one of the men in the lineup to remove his sunglasses. Leino handed this written request to his father. The men in the lineup were herded back inside the house. After a couple of minutes, they again stepped out and none was wearing sunglasses. From the lineup, Leino identified accused as the gunman. 56

I am not making him as state witness, Your Honor. I am only presenting him as an ordinary witness.

ATTY. CARBON:

As a matter of right, because it will incriminate my client, I object.

COURT:

The Court will give counsel for Roger Chavez fifteen minutes within which to confer and explain to his client about the giving of his testimony.

The agents brought back accused to the NBI. They prepared and referred the cases of murder and double frustrated murder against accused to the Department of Justice for appropriate action. At the inquest, Fiscal Dennis Villa-Ignacio did not recommend bail insofar as the murder charge was concerned. Hence, accused was detained at the NBI. 57

The shooting incident was also investigated by the Makati Police. Pat. Baldado went to see security guard Vicente Mangubat at his post, at the residence of his employer in Dasmariñas Village. Baldado interviewed Mangubat and invited him to the Makati police station where his statement (Exhibit "D") was taken. 58

The next day, July 16, 1991, at about 8:30 a.m., Pat. Baldado fetched Mangubat from his house and brought him to the Makati police station. At the station, Baldado told him to wait for a man who would be coming and see if the person was the gunman. Mangubat was posted at the top of the stairs at the second floor of the station. 59

After a couple of hours, accused, came with Makati police Major Lovete. He ascended the stairs, passed by Mangubat and proceeded to Major Lovete's office at the second floor. While accused was going up the stairs, Pat. Baldado inquired from Mangubat if accused was the gunman. Mangubat initially declined to identify accused, saying that he wanted to see the man again to be sure. He also confided to Pat. Baldado that he was nervous and afraid for accused was accompanied by a police Major. When accused came out from Major Lovete's office, Pat. Baldado again asked Mangubat if accused was the gunman. Mangubat nodded his head in response. 60 Accused, together with Major Lovete and Pat. Baldado, boarded a Mercedes Benz and left. Mangubat was brought back to his post at Dasmariñas Village by other Makatipolicemen. 61

Two (2) days later, Pat. Baldado visited Mangubat at his employer's house and asked him again if accused was really the gunman. Once more, Mangubat answered in the affirmative. Pat. Baldado told Mangubat that he would no longer ask him to sign a statement which he (Baldado) earlier prepared (Exhibit "HHH"). 62 Baldado then left. 63

In the afternoon of July 23, 1991, Mangubat was also questioned by the NBI agents. Director Lim asked Mangubat if he could recognize the gunman. Mangubat said he could. Mangubat was shown twelve (12) pictures (Exhibits "E" to "E-11) of different men and was asked to identify the gun gunman from them. He chose one picture (Exhibit "E-10"), that of accused, and identified him as the gunman. Mangubat's statement was taken. He was asked to return to the NBI the next day to make a personal identification. 64

When Mangubat returned, a lineup was prepared in Lim's office in the presence of the media. At that time, accused's counsels, Attys. Jimenez and Malvar, were at the office of then Asst. Director Epimaco Velasco protesting to the submission of accused to identification. They pointed out that since the cases against accused had already been filed in court and they have secured a court order for the transfer of accused to the Makati municipal jail, any identification of accused should be made in the courtroom. Asst. Director Velasco insisted on the identification as it was part of their on-going investigation. Eventually, accused's counsels acquiesced but requested that identification be made without the presence of the media. Velasco turned them down and explained that if accused is not identified n the lineup, the media coverage would favor accused. 65

All that time, accused was at the SOG office. He refused to join the lineup at Lim's office and remained seated. Ranin was compelled to bring to the SOG office the men composing the lineup and he asked them to go near accused. Ranin then told Mangubat to go in the office. Mangubat pointed to accused as the gunman.

With the identification of accused by Mangubat, the NBI wrote finis to its investigation. 66

x x x           x x x           x x x

COURT: [after the recess]

Are the parties ready? .

FISCAL:

We are ready to call on our first witness, Roger Chavez.

ATTY. CARBON:

JUSSI LEINO, the surviving victim, suffered the following injuries:

FINDINGS:

= Abrasion, 0.5 cm., temporal area, left.

= Wound, gunshot, entrance, circular in shape, 1.0 cm. in diameter, located at the upper lip, mouth, along the medial line, directed backwards and downwards, fracturing the maxillary bone and central and lateral incisors, both sides, to the buccal cavity then lacerating the tongue with fragments of the bullet lodged in the right palatine, tongue and tonsillar region.

SKULLCHEST FOR RIBS X-RAY #353322July 13, 1991

No demonstrable evidence of fracture. Note of radioopaque foreign body (bullet fragments) along the superior alveolar border on the right. No remarkable findings.

CT SCAN #43992 July 13, 1991

Small hyperdensities presumably bullet and bone fragments in the right palatine, tongue and tonsillar regions with associated soft tissue swelling.

Anterior maxillary bone comminuted fracture.

Temporal lobe contusions with small hematomata on the right side.

Minimal subarachnoid hemorrhage.

Intact bone calvarium.

xxx xxx xxx 67

Dr. Pedro Solis, testified that the bullet entered the left temple of Leino. After entering Leino's head, it fractured his upper jaw and his front teeth. Some of the bullet fragments pierced his palette and tongue. Brain scanning revealed contusions on the temporal lobe and hemorrhage on the covering of the brain. Physical deformity resulted as a consequence of the gunshot wound because of the fractured upper jaw and the loss of the front teeth. Sutures were performed on the upper portion of his tongue. Nonetheless, Leino's injuries on the tongue caused him difficulty in speaking. 68

Dr. Solis also testified as to the relative position of Leino and the gunman. He opined that the muzzle of the gun, like in the case of Maureen, must have been at a higher level than the victim's head. He concluded that the gun must have been pointed above Leino's head considering the acuteness and downward trajectory of the bullet. 69

As per understanding, the proceeding was suspended in order to enable me to confer with my client.

I conferred with my client and he assured me that he will not testify for the prosecution this morning after I have explained to him the consequences of what will transpire.

COURT:

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

Dr. Leovigildo C. Isabela, a neuro-surgeon at the Makati Medical Center, operated on MAUREEN HULTMAN. He testified that when he first saw Maureen, she was unconscious and her face was bloodied all over. Maureen had a bullet hole on the left side of the forehead, above the eyebrow. Brain tissues were oozing out of her nostrils and on the left side of the forehead where the bullet entered. 70

They brought Maureen to the x-ray room for examination of her skull. She was also given a CT scan. The examination revealed that she suffered injuries on the skull and brain. There were several splintered bullets in her brain and the major portion of the bullet, after it fragmented, was lodged beneath her right jaw. 71

Maureen was rushed to the operating room for surgery. Dr. Isabela led a team who operated on her brain to arrest the bleeding inside her head, remove devitalized brain tissues and retrieve the splintered bullets embedded in her brain. Due to the extensive swelling of Maureen's brain and her very unstable condition, he failed to patch the destroyed undersurface covering of her brain. 72 After the surgery, Maureen's vital signs continued to function but she remained unconscious. She was wheeled to the ICU for further observation.

Two (2) weeks later, brain tissues and fluid continue to flow out of Maureen's nostrils due to the unpatched undersurface covering of her brain, leaving the swollen portion of her brain exposed. A second surgery was made on July 30, 1991 to repair Maureen's brain covering. He used the fascia lata of Maureen's right thigh to replace the destroyed covering of the brain. Nonetheless, Maureen remained unconscious. The trickle of brain tissues through her nose was lessened but Maureen developed infection as a result of the destruction of her brain covering. Maureen developed brain abscess because of the infection. She underwent a third operation to remove brain abscess and all possible focus of infection. 73

Testifying on the extensive injuries suffered by Maureen Hultman, Dr. Solis explained that Maureen was shot at the left side of the forehead. The bullet entry was at 1.5 cm. above the eyebrow. Upon entering the forehead, the bullet fragmented into pieces and went from the left to the right side of the temple, fracturing the frontal bone of the skull. The bullet eventually settled behind the right jaw of Maureen. 74

The wound inflicted on Maureen was mortal for it hit one of the most vital parts of the body, the brain. When Maureen was subjected to CT scan, they discovered hemorrhage in her brain. After the bullet hit her head, it caused hemorrhagic lesion on the ventricles of the brain and the second covering of the brain. 75

The bullet also injured Maureen's eye sockets. There was swelling underneath the forehead brought about by edema in the area. Scanning also showed that Maureen's right jaw was affected by the fragmented bullet. The whole interior portion of her nose was also swollen. 76

A team of doctors operated on Maureen's brain. They tried to control the internal bleeding and remove the splintered bullets, small bone fragments and dead tissues. The main bullet was recovered behind Maureen's right jaw. There was also an acute downward trajectory of the bullet. Hence, it was opined that Maureen was shot while she was seated. 77

With each passing day, Maureen's condition deteriorated. Even if Maureen survived, she would have led a vegetating life and she would have needed assistance in the execution of normal and ordinary routines. 78 She would have been completely blind on the left eye and there was possibility she would have also lost her vision on the right eye. All her senses would have been modified and the same would have affected her motor functions. There was practically no possibility for Maureen to return to normal. 79

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witnessstand.

ATTY. CARBON:

Maureen did not survive her ordeal. After ninety-seven (97) days of confinement in the hospital, she ceased to be a breathing soul on October 17, 1991.

For his exculpation, accused relied on the defense of denial and alibi. Accused claimed that on said date and time, he was not anywhere near the scene of the crime. He alleged that he was then in his house at #53 San Juan, Barrio Kapitolyo, Pasig. He slept at around 1:00 a.m. on July 13, 1991 and woke up at around 8:00 or 9:00 a.m. that same morning. Accused avowed his two (2) maids could attest to his presence in his house that fateful day. 80

Accused averred that he only came to know the three (3) victims in the Dasmariñas shooting when he read the newspaper reports about it. He denied knowing prosecution eyewitnesses Agripino Cadenas and Vicente Mangubat before they identified him as the gunman. 81

Accused admitted ownership of a box-type, silver metallic gray Mitsubishi Lancer, with plate number PDW 566. He, however, claimed that said car ceased to be in good running condition after its involvement in an accident in February 1991. Since May 1991 until the day of the shooting, his Lancer car had been parked in the garage of his mother's house in Dasmariñas Village. He has not used this car since then. Accused, however, conceded that although the car was not in good running condition, it could still be used. 82

Accused said that on July 16, 1991, he went to the Makati police station at around 5:00 p.m. upon invitation of Chief of Police Remy Macaspac and Major Lovete who wanted to ask him about the ownership of the Lancer car parked in his mother's house. He readily gave a statement to the Makati police denying complicity in the crime. He submitted himself to a paraffin test. He was accompanied by the Makati police to the Crime Laboratory in Camp Crame and was tested negative for gunpowder nitrates. 83 After the test, he asked the Makati policemen to accompany him to the NBI for he had earlier committed to his mother that he would present himself to Director Lim. 84

He arrived at Director Lim's office at about 9:30 to 10:00 p.m. He furnished Lim with the statement he earlier gave to the Makati police. Thereafter, Lim detained him at the NBI against his will. 85

The following day, July 17, 1991, Lim and his agents brought him to the Manila Hotel for breakfast. When they returned to the NBI, he was asked to proceed to Lim's office. On his way, he saw a lineup formed inside Lim's office. The NBI agents forced him to join the lineup and placed him in the number seven (7) slot. He observed that the man who was to identify him was already in the room. As soon as he walked up to the lineup, Cadenas identified him as the gunman. 86

A second identification was made on the same day at a house in Forbes Park. The NBI agents brought him to Forbes Park but he never saw Jussi Leino who allegedly identified him as the gunman in a lineup. 87

A third identification was conducted on July 24, 1991. He was then seated at the office of Ranin for he refused to join another lineup. Despite his protest, the NBI agents insisted on the conduct of the identification and ordered a group of men to line up alongside him. While thus seated, he was identified by Mangubat as the gunman. He complained that he was not assisted by counsel at any stage of said investigation. 88

The defense also presented CLAUDIO TEEHANKEE III, son of accused Claudio Teehankee, Jr. He testified that from May 1989 to February 1991, he had been using his father's Lancer car bearing plate number PDW 566 in going to school. 89

In February 1991, while driving his father's Lancer car, he accidentally hit a bicycle driver and two (2) trucks parked at the side of the road. The accident resulted in the death of the bicycle driver and damage to his father's car, 90 especially on its

I submit.

x x x           x x x           x x x

ATTY. CRUZ [Counsel for defendants Pascual and Meneses]: .

MAY IT PLEASE THE COURT:

This incident of the accused Roger Chavez being called to testify for the prosecution is something so sudden that has come to the knowledge of this counsel.

body. The timing of the engine became a little off and the car was hard to start. They had the car repaired at Reliable Shop located in Banawe Street, Quezon city. After a month, he brought the car to the residence of his grandmother, Pilar Teehankee, at Dasmariñas Village, Makati. He personally started the car's engine and drove it to Makati from the shop in Quezon City. He did not bring the car to their house in Pasig for it was still scheduled for further repairs and they preferred to have the repair done in a shop in Makati. Teehankee III claimed that from that time on, he was prohibited by his father from using the car because of his careless driving. He kept the keys to the car and since he was busy in school, no further repair on said car had been made. 91

Accused also imputed the commission of the crimes at bar to Anders Hultman, adoptive father of deceased victim Maureen Hultman. He capitalized on a newspaper report that the gunman may have been an overprotective father. This theory was formed when an eyewitness allegedly overheard Maureen pleading to the gunman: "Huwag Daddy. Huwag, Daddy." The defense presented Anders Hultman as a hostile witness.

ANDERS HULTMAN, testified that he is a Swedish national. He and Vivian Hultman were married in the Philippines in 1981. Vivian had two (2) children by her previous marriage, one of whom was Maureen. He legally adopted Vivian's two (2) daughters in 1991. He and Vivian had three (3) children of their own. 92

The defense confronted Anders with one of the angles of the crime in the initial stage of the investigation, i.e., that Maureen was overhead pleading to the gunman: "Huwag, Daddy. Huwag, Daddy." Anders explained that Maureen could not have uttered those words for Maureen never spoke Tagalog. He also said that all his children call him "Papa," not "Daddy." 93

On July 12, 1991, he and Vivian permitted Maureen to have a night out but instructed her to be home by 2:00 a.m. Maureen just received her first salary in her first job and she wanted to celebrate with friends. At the time of the shooting, he and his wife were sleeping in their house. He woke up at around 5:15 a.m. of July 13, 1991 when a security guard came to their house and informed them about the killings. 94

Anders admitted he had been vocal about the VIP treatment accorded to accused at the Makati municipal jail. On several occasions, he checked on accused in jail and discovered that accused was not in his cell. The jail guards even covered up accused's whereabouts. His complaint was investigated by the Congressional Committee on Crime Prevention, headed by Congressman Concepcion. 95

The defense also presented two (2) Makati policemen, PAT. JAMES F. BALDADO and SPO3 ALBERTO FERNANDEZ, who investigated the shooting.

Pat. Baldado testified that in the course of his investigation, he learned from Mr. Jose Montaño that he sold his white Lancer car, with plate number PKX 566, to Saldaña Lending Investors in February 1991. This car was assigned to Ben Conti, Operations Manager of said company and was in the residence of Conti at the time of the shooting. The other witnesses he interviewed confirmed that Montaño's white Lancer car was not in the vicinity of Montaño's residence at the time of the incident. 96

SPO3 Fernandez testified that he interviewed security guard Vicente Mangubat. Mangubat saw the gunman and the get-away car but could not give the central letters of the car's license plate. Fernandez went to one of the houses at the corner of Mahogany and Caballero Streets and asked the maid therein if he could use the phone. After placing a call, the maid told him that he saw the gunman and heard one of the victims say: "Daddy, don't shoot. Don't, don't." Fernandez tried to get the maid's name but the latter refused. The defense did not present this maid in court nor asked the court to subpoena her to testify. Neither was the alleged statement of the maid included in the Progress Report (Exhibit "13") prepared by the Makati police investigators. 97

This representation has been apprised of the witnesses embraced in the information.

For which reason I pray this court that I be given at least some days to meet whatever testimony this witness will bring about. I therefore move for postponement of today's hearing.

COURT:

The court will give counsel time within which to prepare his cross-examination of this witness.

SPO3 Fernandez saw Mangubat the next time on July 16, 1991 when he and Baldado fetched the latter at Dasmariñas Village for identification of the gunman at the Makati police station.

At the police station, Fernandez and Baldado posted Mangubat at the lobby. After a few minutes, accused and company arrived. When accused passed by them, they instructed Mangubat to look around and see if he could identify the gunman. Mangubat failed to identify accused. Mangubat told Fernandez that the gunman was younger and shorter than accused. 98

SPO3 Fernandez also took the statement of security guard Domingo Florece (Exhibit "MM"). It was signed by Florece in his presence. In said statement, Florece described the gunman's car as "medyo puti" (somewhat white). 99

ELIZABETH AYONON, forensic chemist of the PNP Crime Laboratory, testified on the paraffin test she conducted on July 17, 1991 on both hands of accused. 100 As per Chemistry Report No. C 274-91, 101 the test yielded a negative result of gunpowder nitrates on accused's hands. In said Report, she noted that accused was subjected to paraffin test more than seventy-two (72) hours after the shooting incident. She explained that 72 hours is the reasonable period within which nitrate residues may not be removed by ordinary washing and would remain on the hands of a person who has fired a gun. 102

ATTY. MANUEL Q. MALVAR, one of accused's counsel of record, also took the stand for the defense. He testified that in the course of handling the cases, he was able to confer with Ponferrada, Cadenas' supervisor at the Security agency where Cadenas was employed. Ponferrada informed him that Cadenas confided to him that he was tortured at the NBI and was compelled to execute a statement. Ponferrada, allegedly, refused to testify. Atty. Malvar, however, admitted the defense did not compel the attendance of Ponferrada by subpoena. On rebuttal, Cadenas denied the torture story.

Atty. Malvar also admitted that he and Atty. Jimenez were aware of the irregularities committed in the off-court identification of their client. When asked what he did to remedy this perceived irregularity, Malvar said he objected to the conduct of the lineup. When further pressed whether he filed a petition for review raising this issue with the Department of Justice upon the filing of the cases therewith, he said he did not. He offered the excuse that he deferred to Atty. Jimenez, the principal counsel of accused at that time. He also declared that although they knew that arraignment would mean waiver of the alleged irregularities in the conduct of the investigation and preliminary investigation, he and Atty. Jimenez allowed accused to be arraigned. 103

The defense likewise relied on a number of news accounts reporting the progress in the investigation of the case. It presented seven (7) newspaper reporters as witnesses, viz: Nestor Barrameda of the Manila Times, Martin Marfil and Dave Veridiano of the Philippine Daily Inquirer, Nida Mendoza of Malaya, Itchie Kabayan and Alex Allan of the People's Journal and Elena Aben of the Manila Bulletin. The bulk of defense evidence consists of newspaper clippings and the testimonies of the news reporters, thus:

NESTOR BARRAMEDA, a news reporter of the Manila Times identified two (2) news reports as having been partly written by him. One was a news item, entitled: "JUSTICE DEP'T ORDERS PROBE OF THREE METRO KILLINGS" (Exhibit "1"), appearing on the July 16, 1991 issue of the Manila Times. 104 He, however, clarified that a news report is usually the product of collaborative work among several reporters. They follow the practice of pooling news reports where several reporters are tasked to cover one subject matter. The news editor then compiles the different reports they file and summarizes them into one story. 105

The defense lifted only certain portions of Exhibit "1" and marked them in evidence as follows:

Exhibit "1-A":

ATTY. CRUZ:

I labored under the impression that the witnesses for the prosecution in this criminal case are those only listed in the information.

I did not know until this morning that one of the accused will testify as witness for the prosecution.

COURT:

That's the reason why the court will go along with counsels for the accused and will give them time within which to prepare for their cross-examination of this witness.

Bello directed NBI Deputy Director Epimaco Velasco to take over the investigation of the murders of Roland Chapman, 21, Eldon Maguan, 25, and three members of a family — Estrellita Vizconde and her daughters, Carmela, 19, and Anne Marie Jennifer, 7.

Exhibit "1-B"

Police said that Chapman's assailant could have been angered when Hultman, a 10th grader at the International School in Makati was escorted home by Chapman after going to a disco.

Exhibit "1-C"

The lone gunman, witnesses told police, first pistol-whipped Hultman.

Exhibit "l-D"

The same witnesses said Chapman and Leino were shot when they tried to escape.

Exhibit "1-E"

Other angles

Velasco said "we are pursuing two angles" in the Chapman murder.

One, he said, is the jealousy angle and the other is a "highly sensitive" matter that might involve influential people. 106

Barrameda testified that he had no personal knowledge of the content of the news items marked as Exhibits "1-C" to "1-D". He just culled them from previous news reports of other newspapers. He admitted that the only portion he wrote based on an actual interview with NBI Asst. Director Velasco was Exhibit "I-E."

Barrameda identified another news item in the July 23, 1991 issue of the Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN CHAPMAN SLAY" which was marked as Exhibit "2." Certain portions thereof, which were not written by Barrameda, 107 were lifted by the defense and offered in evidence, viz:

Exhibit "2-a"

Superintendent Lucas Managuelod, CIS director for the national capital region, claims, however, that another security guard, Vic Mangubat, had testified before the police that another man, not Teehankee, had fired at Chapman and his companions.

Exhibit "2-b"

The court will not defer the taking of the direct examination of the witness.

Call the witness to the witness stand.

EVIDENCE FOR THE PROSECUTION

ROGER CHAVEZ, 31 years old, single, buy and sell merchant, presently detained at the Manila Police Department headquarters, after being duly sworn according to law, declared as follows:

ATTY. IBASCO [Counsel for defendant Luis Asistio]:

WITH THE LEAVE OF THE COURT:

The CIS official added that the absence of nitrite or powder burns on Teehankee's hands as shown by paraffin tests at the CIS laboratory indicated that he may not have fired the gun. 108

MARTIN MARFIL, a reporter of the Philippine Daily Inquirer identified two (2) newspaper clippings which were partly written by him.

One news item, which appeared on the July 17, 1991 issue of the Philippine Daily Inquirer, was entitled: "FBI JOINS PROBE OF DASMA SLAY" (Exhibit "3"). 109

Again, the defense marked in evidence certain portions of Exhibit "3", thus:

Exhibit "3-a"

Witnesses said Hultman talked with the gunman whom she called "Daddy" shortly before Chapman's shooting.

Exhibit "3-b"

But Ranin said they were also looking into reports that Hultman was a dancer before she was adopted by her foster parent.

Exhibit "3-c"

Investigations showed that the gunman sped along Caballero street inside the village after the shooting and was believed to have proceeded toward Forbes Park using the Palm street gate.

On cross-examination, Marfil admitted that he did not write Exhibits "3-a" and "3-c". He just reiterated previous reports in other newspapers. They were based on speculations.

Marfil also wrote some portions of a news item, entitled: "TEEHANKEE SON HELD FOR DASMA SLAY," which appeared on the July 18, 1991 issue of the Philippine Daily Inquirer (Exhibit "4"), viz:

Exhibit "4-B"

According to NBI Director Alfredo Lim, the break in the case came when the witness showed up and said that the gunman was on board a silver-metallic Lancer.

Exhibit "4-C"

The witness said the gunman was standing a few feet away near the car and was talking to Hultman, who was shouting "Huwag! Daddy!" several times. 110

This witness, Roger Chavez is one of the accused in this case No. Q-5311.

The information alleges conspiracy. Under Rule 123, Section 12, it states:

'The act or declaration of a conspirator relating to the conspiracy and during its existence, may be given in evidence against the co-conspirator after the conspiracy is shown by evidence other than such act or declaration.'

COURT:

Marfil's source of information was Director Lim. On cross-examination, Marfil admitted that the news reports marked as Exhibits "3" and "4" were written based on information available at that time. 111

NIDA MENDOZA, a reporter of the Malaya identified a news report, entitled: "TEEHANKEE SON HELD ON DASMA SLAYING," which appeared on the July 18, 1991 issue of Malaya. She testified that she wrote a portion thereof, marked as Exhibit "5-c", and the sources of her information were several Makati policemen. 112 Exhibit "5-c" reads:

Makati policemen, meanwhile, disputed NBI accounts that Teehankee was arrested at his house.

They said Teehankee, the last remaining owner of a car with plate control number 566 who had not been questioned, voluntarily went to police headquarters upon invitation of Makati police chief Superintendent Remy Macaspac. 113

The defense presented EXHIBITS "1-5" to prove: (a) the alleged concerted effort of the investigators to implicate accused as the lone gunman; (b) that there were other suspects aside from accused and that someone whom Maureen called as "Daddy" was the actual gunman; (c) that the initial police investigation showed that the gunman's car was a white Lancer with plate no. 566; and, (d) that after the NBI took over the investigation, the white Lancer car of the gunman became a silver gray Lancer of accused and thereafter, he became the gunman.

ITCHIE CABAYAN, a reporter of the People's Journal identified the portions she wrote in the news item, entitled: ''I WILL HOUND YOU", which appeared on the October 24, 1991 issue of People's Journal (Exhibit "6"). She identified the source of her information as Mr. Anders Hultman himself. 114

The portions thereof were marked in evidence by the defense, viz:

Exhibit "6-a"

"I will be visiting him often and at the most unexpected occasion," Hultman said the day after his 17-year old daughter was cremated. 115

Exhibit "6-b"

The day Maureen died, a congressional hearing granted the Hultman family's request for permission to visit Teehankee in his cell "at anytime of their choice."

Exhibit "6-c"

"If on my next visit he still refuses to come out and is still hiding behind the curtain," Hultman said, "Congress told me that I can take the curtain down and jail authorities will pull him out." 116

ALEX ALLAN, also a reporter of People's Journal co-wrote the news item marked as Exhibit "6". Specifically, he wrote Exhibits "6-d" and "6-e" 117 which read:

Exhibit "6-d"

That is premature, counsel. Neither the court nor counsels for the accused know what the prosecution events to establish by calling this witness to the witness stand.

ATTY. IBASCO:

I submit.

COURT: The Fiscal may proceed.3

And so did the trial proceed. It began with the "direct examination" of Roger Chavez by "Fiscal Grecia".

"Kaawaawa naman ang mga Hultmans, tulungan natin sila," Ong was quoted as telling Vergel de Dios.

Exhibit "6-e"

BIR insiders said Ong has shown a keen interest in the Chapman-Hultman, Vizconde and Eldon Maguan cases because he belongs to a secret but very influential multi-sectoral group monitoring graft and corruption and other crimes in high levels of government and society. 118

Allan was not able to check or verify the information in Exhibit "6-e" given to him by BIR insiders for the latter refused to be identified. 119

Exhibit "6" and its sub-markings were offered to prove: (a) the alleged blind and consuming personal rage and bias of Anders Hultman against accused; and (b) the unwarranted pressure, prejudice and prejudgment by some congressional leaders in favor of the Hultmans in violation of due process.

DAVE VERIDIANO, a reporter of the Philippine Daily Inquirer, identified the news account which appeared on the July 16, 1991 issue of the Inquirer, entitled: "DASMA SLAY SUSPECT IDENTIFIED" (Exhibit "7"). He wrote a portion of said article (Exhibit "7-c") and the source of his information was Camp Crame. 120 It reads:

Exhibit "7-c"

Witnesses said the gunman fled aboard a white Mitsubishi Lancer with plate number "566." The witnesses cannot tell the plate's control letters. 121

Veridiano likewise identified a news item which appeared on the July 1991 issue of the Inquirer, entitled: "N.B.I. FINDINGS DISPUTED, SECOND WITNESS TAGS TEEHANKEE" (Exhibit "8"). The portions of said news item which he wrote were marked in evidence by the defense, viz:

Exhibit "8-a"

At the Criminal Investigation Service, however, an investigator who asked not to be identified insisted that the NBI got the wrong man. The NBI has taken over the case from the CIS.

Exhibit "8-c"

He said the CIS will shortly identify the suspect killer whom he described as "resembling Teehankee but looks much younger."

Exhibit "8-e"

The source said that the police's "prime witness," identified only as Mangubat, saw everything that happened in the early morning of July 13. The witness, however, failed to identify Teehankee as the gunman. 122

Came the judgment of February 1, 1965. The version of the prosecution as found by the court below may be briefly narrated as follows:

A few days before November 12, 1962, Roger Chavez saw Johnson Lee, a Chinese, driving a Thunderbird car. With Ricardo Sumilang (movie actor Romeo Vasquez) in mind, whom he knew was in the market for such a car, Chavez asked Lee whether his car was for sale. Lee answered affirmatively and left his address with Chavez. Then, on November 12, Chavez met Sumilang at a barbershop informed him about the Thunderbird. But Sumilang said that he had changed his mind about buying a new car. Instead, he told Chavez that he wanted to mortgage his Buick car for P10,000.00 to cover an indebtedness in Pasay City. Upon the suggestion of Chavez, they went to see Luis Asistio, who he knew was lending money on car mortgages and who, on one occasion, already lent Romeo Vasquez P3,000.00

Veridiano was shown another news report, entitled: "CIS GIVES UP CHAPMAN SLAY CASE", which appeared on the July 26, 1991 issue of the Philippine Daily Inquirer (Exhibit 9). 123 He wrote the entire news account, 124 portions of which were marked by the defense in evidence, thus:

Exhibit "9-a"

The CIS pulled out from the case a day after its so-called "surprise witness" picked Claudio Teehankee, Jr. from an NBI lineup.

He gathered this information from his source but he was not able to interview Mangubat himself. 125

Exhibit "9-b"

Sira ulo pala siya (Mangubat). Ilang beses kong pinarada sa kanya si Bobby (Teehankee Jr.) puro iling siya. Hindi raw ito ang suspect. Ngayon bigla niyang ituturo, said a red-faced Makati investigator who, as usual, did not want to be identified.

ELENA ABEN, a reporter from the Manila Bulletin, wrote the entire article, entitled: "US DIPLOMAT'S SON SHOT DEAD", which appeared on the July 14, 1991 issue of the Manila Bulletin (Exhibit "10"). 126 Two (2) portions thereof were marked as evidence by the defense, viz:

Exhibit "10-a-1"

The victims were on their way home in Olanileino's Mercedez Benz with a diplomat's plate number when a white Lancer with plate number PKX-566 blocked its path.

Exhibit "10-a-2"

US embassy spokesman Stanley Schrager said Chapman's father is a communications specialist. He said the shooting could be the result of an altercation on the street. 127

Finally, VICTOR VEGA, a reporter of the Manila Bulletin, identified the news account he wrote which appeared on the July 16, 1991 issue of the Bulletin, entitled: "4 MURDER SUSPECTS FALL" (Exhibit "22"). Portions of said news item were marked by the defense as follows:

Exhibit "22-b"

. . . He was shot to death by a group of armed men at the corner of Mahogany and Caballero Sts. in Dasmariñas Village at past 4 a.m. Friday.

Exhibit "22-c"

The NBI sources said that jealousy sparked the slaying of Chapman who was killed in front of his friends on his way home from a party. The armed men, on board a white Lancer car, blocked the path of the

on the same Buick car. Asistio however told the two that he had a better idea on how to raise the money. His plan was to capitalize on Romeo Vasquez' reputation as a wealthy movie star, introduce him as a buyer to someone who was selling a car and, after the deed of sale is signed, by trickery to run away with the car. Asistio would then register it, sell it to a third person for a profit. Chavez known to be a car agent was included in the plan. He furnished the name of Johnson Lee who was selling his Thunderbird. 1äwphï1.ñët

In the morning of November 14, Chavez telephoned Johnson Lee and arranged for an appointment. Sometime in the afternoon. Chavez and Sumilang met Lee in his Thunderbird on Highway 54. Sumilang was introduced as the interested buyer. Sumilang's driver inspected the car, took the wheel for a while. After Sumilang and Lee agreed on the purchase price (P21.000.00), they went to Binondo to Johnson Lee's cousin, Dy Sun Hiok, in whose name the car was registered. Thereafter, they went to see a lawyer notary public in Quezon City, known to Chavez for the drafting of the deed of sale. After the deed of sale

victim's Mercedes Benz car inside the village before the shooting.

Exhibit "22-a-1"

The gunmen then alighted from their car and at gunpoint ordered Chapman to alight from the car. They shot Chapman several times in the body, while his companions identified as Maureen Hultman, and Jussi Olanileino, were seriously wounded when the gunmen sprayed the car with bullets.

The gunmen escaped after the shooting. Lim said he will announce later the names of the detained suspects after their initial investigation. 128

Finally, his article, entitled: "MAKATI SLAY SUSPECT IDENTIFIED" (Exhibit "23"), which appeared on the July 18, 1991 issue of the Manila Bulletin, was introduced by the defense in evidence as follows:

Exhibit "23-a-1"

The NBI said Teehankee was one of four men who blocked Chapman's car on Mahogany St. in the subdivision.

Exhibit "23-a-2"

Witnesses said they saw Teehankee order Chapman and his two companions, Maureen Hultman and Jussi Olanileino, a Finn, to get out of their car.

Exhibit "23-a-3"

They identified the car used by the suspect, a silver gray Lancer with plate No. PDW 566. They added that they saw the same car in the garage of the Teehankee family. 129

On cross-examination, Vega declared that the source of his two (a) stories was the NBI and they were based on information available to the NBI at that time 130

The prosecution recalled to the stand eyewitness VICENTE MANGUBAT as its rebuttal witness. Mangubat insisted that he was able to identify accused when he saw the latter at the Makati police station. Her reiterated that the next day, Pat. Baldado of the Makati police went to his place of work in Dasmariñas Village and asked him if he was sure about the identity of the gunman. He told Baldado he was positive. Baldado then said him he would no longer require him to sign the statement he prepared for him earlier. 131

LEONORA C. VALLADO, chief of the Forensic Chemistry Division of the NBI, was also presented as a prosecution rebuttal witness. She testified that extensive washing of hands or excessive perspiration can eliminate gunpowder nitrates lodged on skin pores of the hands. Continued washing with hot water can induce perspiration and remove nitrate residue embedded in the skin pores. Application of vinegar on the hand can register the same effect. 132

was drawn up, it was signed by Sumilang as the vendee, Dy Sun Hiok the vendor, and Sumilang's driver and Johnson Lee the witnesses thereto.

As payment was to be made at Eugene's restaurant in Quezon City, all of them then drove in the Thunderbird car to that place. The deed of sale and other papers remained in the pockets of Johnson Lee.

At Eugene's, a man approached Sumilang with a note which stated that the money was ready at the Dalisay Theater. Sumilang then wrote on the same note that the money should be brought to the restaurant. At the same time he requested Lee to exhibit the deed of sale of the car to the note bearer.4

She testified that their practice at the NBI is to take the paraffin test on a suspect within 72 hours from the time of the alleged firing of a gun, during which time, any possible trace of nitrate may still be found. 133

She divulged that questions have been raised regarding the reliability of the paraffin test. She related that she once attended a training in Baguio City where they tried to test the accuracy of a paraffin test. In said training, two (2) NBI agents fired a .38 revolver. One of them washed his hands. They then subjected both agents to a paraffin test using diphylamine reagent. Both yielded a negative result. Thus, she opined, the result of a paraffin test should merely be taken as a corroborative evidence and evaluated together with other physical evidence. 134

The records show that the case was set for hearing on October 29, 1992 for the presentation by the defense of sur-rebuttal evidence. However, a day before the scheduled hearing, the defense filed a Constancia 135 manifesting that it shall waive its right to present sur-rebuttal evidence, the same being unneccesary. The defense, however, declared that this is without prejudice to the presentation of its evidence in the trial proper should the same be necessary.

At the hearing of October 29, 1992, the defense counsels did not appear. The prosecution moved in open court that the main cases and the petition for bail be submitted for decision in view of the absence of defense counsels who had manifested that they would no longer present their sur-rebuttal evidence. The motion was granted and the parties were given ten (10) days from receipt of the Order within which to submit their simultaneous Memorandum. 136 It does not appear that the defense objected to this Order. The records show that the defense even filed a motion asking for additional time to file its Memorandum. 137 In due time, both parties submitted their respective Memorandum.

On December 22, 1992, the trial court convicted accused CLAUDIO TEEHANKEE, JR. of the crimes charged. 138 The dispositive portion of the Decision reads:

WHEREFORE, premises considered, the Court hereby renders judgment:

(1) In criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Roland John Chapman, and sentencing said accused to suffer imprisonment of Reclusion perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50, 000.00), Philippine Currency, plus moderate or temperate and exemplary damages in the sum of Five Hundred Thousand Pesos (P500,000.00), Philippine Currency;

(2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Murder, qualified by treachery, for the fatal shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of Reclusion Perpetua, and to pay the heirs of the said deceased the sum of Fifty Thousand Pesos (P50,000.00), Philippine Currency, plus the sums of Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83), Philippine Currency, as actual damages; Thirteen Million Pesos (P13,000,000.00), Philippine Currency, for loss of earning capacity of the said deceased; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages;

(3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, and to pay the said offended party the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One Hundred Eighteen

Then, the two Chinese were left alone in the restaurant. For Sumilang, who had left the table to pose for pictures with some fans and come back, again left never to return. So did Chavez, who disappeared after he left on the pretext of buying cigarettes. The two Chinese could not locate Sumilang and Chavez. They went out to the place where the Thunderbird was parked, found that it was gone. They then immediately reported its loss to the police. Much later, the NBI recovered the already repainted car and impounded it.

Right after the meeting at Eugene's, Chavez, Sumilang and Asistio converged that same day at Barrio Fiesta, a restaurant at Highway 54 near the Balintawak monument in Caloocan. There, Asistio handed to Sumilang P1,000.00 cash and a golf set worth P800.00 as the latter's share in the transaction. On the 14th of November, the registration of the car was transferred in the name of Sumilang in Cavite City, and three days later, in the name of Asistio in Caloocan.

Thousand Three Hundred Sixty-Nine Pesos and Eighty-Four Centavos (P118,369.84), Philippine Currency, and another sum equivalent in Philippine Pesos of U.S. $55,600.00, both as actual damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00, as loss of earning capacity of said offended party; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages.

(4) In all these three cases ordering said accused to pay all the offended parties the sum of Three Million Pesos (P3,000,000.00), Philippine Currency, as and for attorney's fees and expenses of litigation; and

(5) To pay the costs in these three cases.

Consequently the petition for bail is hereby denied for utter lack of merit.

SO ORDERED.

Accused hired a new counsel in the person of Atty. Nicanor B. Gatmaytan, Jr. He filed a Motion for New Trial, 139 alleging for the first time that the trial court erred in considering as submitted for decision not only the petition for bail but also the case on the merits. He claimed that accused's right to adduce further evidence was violated. His motion for new trial was denied.

Accused interposed the present appeal. 140 He contends that:

I. THE LOWER COURT ERRED IN FINDING THAT THE ACCUSED HAD BEEN POSITIVELY IDENTIFIED BY JUSSI LEINO, CADENAS AND MANGUBAT AS THE ONE WHO SHOT HIM, ROLAND CHAPMAN AND MAUREEN NAVARRO HULTMAN.

II. THE PROSECUTION HAS FAILED TO ESTABLISH THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT.

III. THE PUBLICITY GIVEN THE CASE AGAINST THE APPELLANT WAS MASSIVE, OVERWHELMING, AND PREJUDICIAL AS TO EFFECTIVELY DEPRIVE THE ACCUSED OF RIGHT TO IMPARTIAL TRIAL.

IV. THE LOWER COURT ERRED IN FINDING THAT THE KILLING OF CHAPMAN AND HULTMAN AND THE SHOOTING OF LEINO WAS ATTENDED BY TREACHERY.

V. THE LOWER COURT ERRED IN GRANTING EXORBITANT MORAL AND EXEMPLARY DAMAGES AND LOSS OF EARNING CAPACITY.

VI. THE LOWER COURT ERRED IN AWARDING ATTORNEY'S FEES OF THREE MILLION PESOS (P3,000,000.00).

VII. THE LOWER COURT ERRED IN RENDERING JUDGMENT ON THE MERITS AND ON THE PETITION FOR BAIL AT THE SAME TIME WITHOUT GIVING THE ACCUSED THE OPPORTUNITY TO PRESENT ADDITIONAL EVIDENCE IN HIS DEFENSE ON THE MERITS OF THE CASE AND DENYING THE ACCUSED'S MOTION FOR NEW TRIAL.

From the court's decision, Ricardo Sumilang's version, corroborated in part by Asistio, may be condensed as follows:

In the last week of September, 1962, Sumilang saw Roger Chavez at a gas station. The latter informed him that there was a Thunderbird from Clark Field for sale for a price between P20,000.00 and P22,000.00. Chavez said that it could be held for him with a down payment of P10,000.00.

To raise this sum, Sumilang and Chavez, on October 1, went to the house of a certain Nena Hernaez de los Reyes who wrote out a check for P5,000.00 as a loan to Sumilang. That check was exhibited in court. Sumilang and Chavez then went to Pasay City to see a certain Mario Baltazar, an agent of the Pasay City

We shall discuss these alleged errors in seriatim.

Appellant was convicted on the strength of the testimonies of three (3) eyewitnesses who positively identified him as the gunman. He vigorously assails his out-of-court identification by these eyewitnesses.

He starts by trying to discredit the eyeball account of Jussi Leino, the lone surviving victim of the crimes at bar. Appellant urges:

First, that Leino's identification of him outside an unoccupied house in Forbes Park was highly irregular.

Second, that Leino saw his pictures on television and the newspapers before he identified him.

Third, that Leino's interview at the hospital was never put in writing.

Fourth, that the sketch of appellant based on the description given by Leino to the CIS agents was suppressed by the NBI. It is surmised that the sketch must have been among the evidence turned over to the NBI when the latter assumed jurisdiction over the investigation.

Lastly, that Leino could not have remembered the face of appellant. The shooting lasted for only five (5) minutes. During that period, his gaze could not have been fixed only on the gunman's face. His senses were also dulled by the five (5) bottles of beer he imbibed that night.

It is understandable for appellant to assail his out-of-court identification by the prosecution witnesses in his first assignment of error. Eyewitness identification constitutes vital evidence and, in most cases, decisive of the success or failure of the prosecution. Yet, while eyewitness identification is significant, it is not as accurate and authoritative as the scientific forms of identification evidence such as the fingerprint or DNA testing. Some authors even describe eyewitness evidence as "inherently suspect." 141 The causes of misidentification are known, thus:

xxx xxx xxx

Identification testimony has at least three components. First, witnessing a crime, whether as a victim or a bystander, involves perception of an event actually occurring. Second, the witness must memorize details of the event. Third, the witness must be able to recall and communicate accurately. Dangers of unreliability in eyewitness testimony arise at each of these three stages, for whenever people attempt to acquire, retain, and retrieve information accurately, they are limited by normal human fallibilities and suggestive influences. (Emphasis Supplied) 142

Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time

Mayor, and Narsing Cailles, Chief of the Fire Department. Sumilang asked the two for a P10,000-loan backed up by the P5,000.00-check aforesaid on condition that it should not be cashed immediately as there were not enough funds therefor. Baltazar and Cailles agreed to give the money the nextday as long as the check would be left with them and Sumilang would sign a promissory note for P10,000.00. Baltazar later informed Sumilang that Chavez picked up the money the next day. Four or five days afterwards, Chavez returned P4,000.00 to Sumilang because P6,000.00 was enough for the deposit. And so, Sumilang gave back the P4,000.00 to Baltazar.

About the end of October or at the beginning of November, Chavez asked Sumilang for another P3,000.00. Sumilang sent Chavez to Baltazar and Cailles, with a note requesting that they accommodate

between the crime and the identification; and, (6) the suggestiveness of the identification procedure. 143

Using the totality of circumstances test, we hold that the alleged irregularities cited by appellant did not result in his misidentification nor was he denied due process. There is nothing wrong in Leino's identification of appellant in an unoccupied house in Forbes Park. The records reveal that this mode was resorted to by the authorities for security reasons. 144 The need for security even compelled that Leino be fetched and escorted from his house in Forbes Park by U.S. embassy security officials and brought to the house where he was to make the identification. The Leinos refused to have the identification at the NBI office as it was cramped with people and with high security risk. 145 Leino's fear for his safety was not irrational. He and his companions had been shot in cold blood in one of the exclusive, supposedly safe subdivisions in the metropolis. Atty. Salvador Ranin, Chief of the Special Operations Group of the NBI, correctly testified that there is no hard and fast rule as to the place where suspects are identified by witnesses. Identification may be done in open field. It is often done in hospitals while the crime and the criminal are still fresh in the mind of the victim. 146

Appellant cannot also gripe that Leino saw his pictures and heard radio and TV accounts of the shooting before he personally identified him. Indeed, the records show that on July 15, 1991, while Leino was still in the hospital, he was shown three (3) pictures of different men by the investigators. He identified appellant as the gunman from these pictures. He, however, categorically stated that, before the mug shot identification, he has not seen any picture of appellant or read any report relative to the shooting incident. 147 The burden is on appellant to prove that his mug shot identification was unduly suggestive. Failing proof of impermissible suggestiveness, he cannot complain about the admission of his out-of-court identification by Leino.

We have no reason to doubt the correctness of appellant's identification by Leino. The scene of the crime was well-lighted by a Meralco lamp post. Appellant was merely 2-3 meters away when he shot Leino. The incident happened for a full five (5) minutes. Leino had no ill-motive to falsely testify against appellant. His testimony at the trial was straightforward. He was unshaken by the brutal cross-examination of the defense counsels. He never wavered in his identification of appellant. When asked how sure he was that appellant was responsible for the crime, he confidently replied: "I'm very sure. It could not have been somebody else." 148

Appellant cannot likewise capitalize on the failure of the investigators to reduce to a sworn statement the information revealed by Leino during his hospital interviews. It was sufficiently established that Leino's extensive injuries, especially the injury to his tongue, limited his mobility. The day he identified appellant in the line-up, he was still physically unable to speak. He was being fed through a tube inserted in his throat. 149 There is also no rule of evidence which requires the rejection of the testimony of a witness whose statement has not been priorly reduced to writing. Reliance by appellant on the case of People v. Alindog 150 to erode Leino's credibility is misplaced. In Alindog, accused was acquitted not solely on the basis of delay in taking his statement, but mainly on the finding that the prosecution evidence was, at best, circumstancial and "suspiciosly short in important details," there being no investigation whatsoever conducted by the police.

We also reject appellant's contention that the NBI suppressed the sketch prepared by the CIS on the basis of the description given by Leino. There is nothing on the record to show that said sketch was turned over by the CIS to the NBI which could warrant a presumption that the sketch was suppressed. The suspicion that the sketch did not resemble appellant is not evidence. It is unmitigated guesswork.

We are not likewise impressed with the contention that it was incredible for Leino to have remembered appellant's face when the incident happened within a span of five (5) minutes. Five (5) minutes is not a short time for Leino to etch in his mind the picture of appellant. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. 151 We have ruled that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an

him once more. He also sent a check, again without funds. Baltazar gave the money after verifying the authenticity of the note.

On November 14, Chavez appeared at Sumilang's house with the news that the car was ready if Sumilang was ready with the rest of the money. So Sumilang got P9,000.00 from his mother and another P4,000.00 from his aparador. He immediately gave P6,000.00 to Chavez, intending to pay out the balance upon the car's delivery. It was then that Chavez told Sumilang that the car was already bought by a Chinese who would be the vendor.

impression which cannot be easily erased from their memory. 152 In the case at bar, there is absolutely no improper motive for Leino to impute a serious crime to appellant. The victims and appellant were unknown to each other before their chance encounter. If Leino identified appellant, it must be because appellant was the real culprit.

Appellant also assails his identification by Cadenas. He contends that Cadenas did not witness the crime. He stresses that when the Dasmariñas security force and the Makati police conducted an on-the-spot investigation on the day of the incident, neither came across Cadenas. The next day, in the afternoon of July 14, 1991, an NBI agent interviewed Cadenas and asked if he saw the incident. He merely replied: "Nakita ko pero patay na." He did not volunteer information to anyone as to what he supposedly witnessed. That same night, the NBI subpoenaed him for investigation. He went to the NBI the next morning. It was only the next day, July 16, 1991, that he gave his statement to the NBI. Cadenas allegedly told Ponferrada, his supervisor, that the NBI tortured him.

We reject appellant's submission. Cadenas' initial reluctance to reveal to the authorities what he witnessed was sufficiently explained during the trial. He related that he feared for his and his family's safety. His fear was not imaginary. He saw with his own eyes the senseless violence perpetrated by appellant. He knew appellant belonged to an influential family. It was only after consistent prodding and assurance of protection from NBI officials that he agreed to cooperate with the authorities. 153 The Court has taken judicial notice of the natural reticence of witnesses to get involved in the solution of crimes considering the risk to their lives and limbs. In light of these all too real risks, the court has not considered the initial reluctance of fear-gripped witnesses to cooperate with authorities as an authorities as an indicium of credibility. 154 It will not depart from this ruling.

Appellant's assertion that Cadenas was tortured by the NBI is not borne out by the records. Supposedly, Cadenas passed on to his superior, a certain Ponferrada, information about his torture. The allegation is an out and out hearsay as Ponferrada was not presented in the witness stand. Cadenas himself stoutly denied this allegation of torture. The claim of torture is also belied by the fact that Cadenas' entire family was allowed to stay with him at the NBI headquarters and likewise extended protection. 155

Appellant then discredits his identification by VICENTE MANGUBAT, citing the testimony of defense witness Pat. James Baldado of the Makati Police. Pat. Baldado testified that Mangubat failed to identify appellant as the gunman the first time he was brought to the Makati police station. Mangubat, however, belied Baldado's story. He declared he positively identified appellant as the gunman at the Makati police station. He averred that the day after he identified appellant, Pat. Baldado returned to his place of work in Dasmariñas and asked him again whether appellant was the gunman. Again, he replied in the affirmative. Forthwith, Pat. Baldado said he would no longer ask him to sign a statement (Exhibit "HHH") 156 earlier prepared by Baldado. In said statement previously prepared by Baldado, Mangubat was supposed to state that appellant, whom he saw at the Makati police station, was NOT the gunman. We give more weight to the testimony of Mangubat. We find nothing in the records to suspect that Mangubat would perjure himself. The Court cannot be as generous to Pat. Baldado of the Makati Police. Mr. Hultman has proved that the Makati police, including some of its jail officials, gave appellant favored treatment while in their custody. The anomaly triggered nothing less than a congressional investigation.

II

We now rule on appellant's second assignment of error, i.e., that the trial court erred in not holding that the prosecution failed to establish his guilt beyond reasonable doubt.

First, he claims the trial court erred in citing in its Decision his involvement in previous shooting incidents for this contravenes the rule 157 that evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time. Second, the NBI failed to conduct an examination to

The purchase price finally agreed upon between Sumilang and Johnson Lee was P21,000.00, plus P500.00 agents commission at the expense of the buyer. Sumilang told Lee that he already paid part of the price to Chavez.

At Eugene's, Chavez asked Sumilang for the balance. Sumilang accommodated. There, Sumilang, also saw a friend, "Ging" Pascual. In the course of their conversation at the bar, Sumilang mentioned the proposed transaction thru Chavez. Pascual warned that Chavez was a "smart" agent and advised that Sumilang should have a receipt for his money. A certain Bimbo, a friend of Pascual, offered to make out a receipt for Chavez to sign.

compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunman's car as white, but the trial court found it to be silver mettalic gray. Fourth, appellant could not have been the gunman for Mangubat, in his statement dated July 15, 1991, said that he overheard the victim Maureen Hultman plead to the gunman, thus: "Please, don't shoot me and don't kill me. I promise Mommy, Daddy." Appellant also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed accused's car from Dasmariñas Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates.

Appellant points to other possible suspects, viz:. ANDERS HULTMAN, since one of the eyewitnesses was quoted in the newspapers as having overheard Maureen plead to the gunman: "Huwag, Daddy."; and, (b) JOSE MONTAÑO, another resident of Dasmariñas Village, who had a white Lancer car, also bearing license plate number 566.

We reject appellant's thesis as bereft of merit.

Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios acta when he considered his involvement in previous shooting incidents. This stance is a specie of a mid-1800 rule known as the English Exchequer Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a new trial." 158 The Exchequer rule has long been laid to rest for even English appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been occasioned." 159 American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 160 We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. 161

In the case at bar, the reference by the trial judge to reports about the troublesome character of appellant is a harmless error. The reference is not the linchpin of the inculpatory evidence appreciated by the trial judge in convicting appellant. As aforestated, the appellant was convicted mainly because of his identification by three (3) eyewitnesses with high credibility.

The NBI may have also failed to compare the bullets fired from the fatal gun with the bullets found at the scene of the crime. The omission, however, cannot exculpate appellant. The omitted comparison cannot nullify the evidentiary value of the positive identification of appellant.

There is also little to the contention of appellant that his Lancer car was not in running condition. Allegedly, this was vicariously proved when the NBI towed his car from Dasmariñas Village where it was parked to the NBI office. Again, the argument is negated by the records which show that said car was towed because the NBI could not get its ignition key which was then in the possession of appellant. Clearly, the car was towed not because it was not in running condition. Even appellant's evidence show that said car could run. After its repairs, appellant's son, Claudio Teehankee III, drove it from the repair shop in Banawe, Quezon City to Dasmariñas Village, in Makati, where it was parked. 162

Nor are we impressed by the alleged discrepancies in the eyewitnesses' description of the color of the gunman's car. Leino described the car as light-colored; Florece said the car was somewhat white ("medyo puti"); 163 Mangubat declared the car was white; 164 and Cadenas testified it was silver metallic gray. 165 These alleged discrepancies amount to no more than

After Sumilang returned from posing for some photographs with some of his fans, Bimbo showed him the receipt already signed by Chavez. Sumilang requested Pascual and Bimbo to sign the receipt as witnesses. And they did. This receipt was offered as an exhibit by the prosecution and by Sumilang.

When Sumilang was ready to leave Eugene's, Johnson Lee turned over to him the deed of sale, the registration papers and the keys to the car. After shaking hands with Lee, Sumilang drove away in the car with his driver at the wheel.

Two or three days afterwards, Sumilang dropped by the Barrio Fiesta on his way to a film shooting at Bulacan. He saw Asistio with many companions. Asistio liked his Thunderbird parked outside. Asistio offered to buy it from him for P22,500.00. As the offer was good, and knowing Asistio's and his friends'

shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence.

Appellant's attempt to pin the crimes at bar on Anders Hultman, the adoptive father of Maureen Hultman, deserves scant consideration. Appellant cites a newspaper item 166 where Maureen was allegedly overheard as saying to the gunman: "Huwag, Daddy. Huwag, Daddy." The evidence on record, however, demonstrates that Anders Hultman could not have been the gunman. It was clearly established that Maureen could not have uttered said statement for two (2) reasons: Maureen did not speak Tagalog, and she addressed Anders Hultman as "Papa," not "Daddy." 167 Moreover, Leino outrightly dismissed this suspicion. While still in the hospital and when informed that the Makati police were looking into this possibility, Leino flatly stated that Anders Hultman was NOT the gunman. 168 Leino is a reliable witness.

Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." 169 In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. 170 In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration. 171 In the Report 172 on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting.

III

In his third assigned error, appellant blames the press for his conviction as he contends that the publicity given to his case impaired his right to an impartial trial. He postulates there was pressure on the trial judge for high-ranking government officials avidly followed the developments in the case (as no less than Vice-President Joseph Estrada and then Department of Justice Secretary Franklin Drilon attended some of the hearings and, President Corazon Aquino even visited victim Maureen Hultman while she was still confined at the hospital). He submits that the trial judge failed to protect him from prejudicial publicity and disruptive influences which attended the prosecution of the cases. He claims there were placards displayed during the hearing of the cases, spectators inside the courtroom clapped their hands and converted the proceedings into a carnival. In another instance, he was allegedly given the "finger sign" by several young people while he was leaving the courtroom on his way back to his cell.

We cannot sustain appellant's claim that he was denied the right to impartial trial due to prejudicial publicity. It is true that the print and broadcast media gave the case at bar pervasive publicity, just like all high profile and high stake criminal trials. Then and now, we rule that the right of an accused to a fair trial is not incompatible to a free press. To be sure, responsible reporting enhances an accused's right to a fair trial for, as well pointed out, "a responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field . . . The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting in the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." 173

reputation for always getting what they wanted, Sumilang consented to the sale. Asistio tendered a down payment of P1,000.00; the balance he promised to pay the next day after negotiating with some financing company. Before said balance could be paid, the car was impounded.

The trial court gave evidence to Sumilang's averment, strengthened by Baltazar's and Cailles' corroborations, that he paid good money for the car. Sumilang was thus cleared. So was Asistio whom the trial court believed to be a mere buyer of the car. And so, the prosecution's theory of conspiracy was discounted.

Pervasive publicity is not per se prejudicial to the right of an accused to fair trial. The mere fact that the trial of appellant was given a day-to-day, gavel-to-gavel coverage does not by itself prove that the publicity so permeated the mind of the trial judge and impaired his impartiality. For one, it is impossible to seal the minds of members of the bench from pre-trial and other off-court publicity of sensational criminal cases. The state of the art of our communication system brings news as they happen straight to our breakfast tables and right to our bedrooms. These news form part of our everyday menu of the facts and fictions of life. For another, our idea of a fair and impartial judge is not that of a hermit who is out of touch with the world. We have not installed the jury system whose members are overly protected from publicity lest they lose their impartiality. Criticisms against the jury system are mounting and Mark Twain's wit and wisdom put them all in better perspective when he observed: "When a gentleman of high social standing, intelligence, and probity swears that testimony given under the same oath will outweigh with him, street talk and newspaper reports based upon mere hearsay, he is worth a hundred jurymen who will swear to their own ignorance and stupidity . . . Why could not the jury law be so altered as to give men of brains and honesty an equal chance with fools and miscreants?" 174 Our judges are learned in the law and trained to disregard off-court evidence and on-camera performances of parties to a litigation. Their mere exposure to publications and publicity stunts does not per se fatally infect their impartiality.

At best, appellant can only conjure possibility of prejudice on the part of the trial judge due to the barrage of publicity that characterized the investigation and trial of the case. In Martelino, et al. v. Alejandro, et a1., 175 we rejected this standard of possibility of prejudice and adopted the test of actual prejudice as we ruled that to warrant a finding of prejudicial publicity, there must be allegation and proof that the judges have been unduly influenced, not simply that they might be, by the barrage of publicity. In the case at bar, the records do not show that the trial judge developed actual bias against appellant as a consequence of the extensive media coverage of the pre-trial and trial of his case. The totality of circumstances of the case does not prove that the trial judge acquired a fixed opinion as a result of prejudicial publicity which is incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.

We have minutely examined the transcripts of the proceedings and they do not disclose that the trial judge allowed the proceedings to turn into a carnival. Nor did he consent to or condone any manifestation of unruly or improper behavior or conduct inside the courtroom during the trial of the case at bar. The transcripts reveal the following:

1. At the August 14, 1991 hearing, the defense counsel called the attention of the court to the visible display of a placard inside the courtroom. Acting on the manifestation, the trial judge immediately directed that the placard be hidden. Only then did he order the start of the arraignment of accused. 176

On the same hearing, the defense counsel asked for the exclusion of the media after they had enough opportunity to take pictures. The court granted defense's request, noting that the courtroom was also too crowded. 177

2. During the testimony of Domingo Florece, an argument ensued between the defense lawyer and the fiscal. When part of the audience clapped their hands, the defense counsel invoked Rule 119, Section 13 of the Rules of Court and moved for the exclusion of the public. Assistant Prosecutor Villa-Ignacio objected on the ground that the public was not unruly. The trial judge noted that there were yet no guidelines drafted by the Supreme Court regarding media coverage of the trial proceedings. 178 Collaborating defense counsel, Atty. Malvar, complained that the outpouring of sympathy by spectators inside the courtroom has turned the proceedings into a carnival. He also manifested that he personally saw that when accused was being brought back to his cell from the courtroom, a group of young people were pointing dirty fingers at accused in full view of policemen. Forthwith, the trial judge declared that he could not be dissuaded by

As to the other accused, the court found no case against Pedro Rebullo alias "Pita" and Lorenzo Meneses alias "Lory". The accused "Ging" Pascual was also acquitted for in the first place he was not identified by Johnson Lee in court.

As to Roger Chavez, however, the court had this to say: "Roger Chavez does not offer any defense. As a matter of fact, his testimony as witness for the prosecution establishes his guilt beyond reasonable doubt."5 The trial court branded him "a self-confessed culprit".6 The court further continued:

It is not improbable that true to the saying that misery loves company Roger Chavez tried to drag his co-accused down with him by coloring his story with fabrications which he expected would easily stick together what with the newspaper notoriety of one and the

public sentiments. He noted that the clapping of hands by the public was just a reaction at the spur of the moment. He then admonished the audience not to repeat it. 179

3. At the hearing of July 14, 1992, the parties again argued on the coverage of the trial by the press. The defense alleged that the media coverage will constitute mistrial and deny accused's constitutional right to due process. It invoked the provision in the Rules of Court which allows the accused to exclude everybody in the courtroom, except the organic personnel. The prosecutor, however, argued that exclusion of the public can be ordered only in prosecution of private offenses and does not apply to murder cases. He added that the public is entitled to observe and witness trial of public offenses. He quoted the U.S. case of Sheppard v. Maxwell 180 where it was held: "A responsible press is always regarded as the handmaiden of effective judicial administration especially in the criminal field. The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, the prosecutors and judicial processes to extensive public scrutiny and criticism. What transpires in the courtrooms public property." The trial judge then ruled that the media should be given a chance to cover the proceedings before the trial proper but, thereafter, he prohibited them from taking pictures during the trial. They were allowed to remain inside the courtroom but were ordered to desist from taking live coverage of the proceedings. 181

4. At the August 14, 1992 hearing, before the hearing began, the trial judge gave the media two (2) minutes to take video coverage and no more. Trial then ensued. 182

5. At the September 8, 1992 hearing, the trial judge again gave the media two (2) minutes to take pictures before the trial proper. Afterwards, the reporters were duly admonished to remain silent, to quietly observe the proceedings and just take down notes. 183

6 On September 10, 1992 before the start of the afternoon session, the judge admonished the media people present in the courtroom to stop taking pictures. 184

Parenthetically, appellant should be the last person to complain against the press for prejudicial coverage of his trial. The records reveal he presented in court no less than seven (7) newspaper reporters and relied heavily on selected portions of their reports for his defense. The defense's documentary evidence consists mostly of newspaper clippings relative to the investigation of the case at bar and which appeared to cast doubt on his guilt. The press cannot be fair and unfair to appellant at the same time.

Finally, it would not be amiss to stress that on May 29, 1992, the trial judge voluntarily inhibited himself from further hearing the case at bar to assuage appellant's suspicion of bias and partiality. 185 However, upon elevation of the trial judge's voluntary Order of Inhibition to this Court, we directed the trial judge to proceed with the trial to speed up the administration of justice. 186 We found nothing in the conduct of the proceedings to stir any suspicion of partiality against the trial judge.

IV

In his fourth assigned error, appellant claims that treachery was not present in the killing of Hultman and Chapman, and the wounding of Leino for it was not shown that the gunman consciously and deliberately adopted particular means, methods and forms in the execution of the crime. Appellant asserts that mere suddenness of attack does not prove treachery.

sensationalism caused by the other. But Roger Chavez' accusations of Asistio's participation is utterly uncorroborated. And coming, as it does, from a man who has had at least two convictions for acts not very different from those charged in this information, the Court would be too gullible if it were to give full credence to his words even if they concerned a man no less notorious than himself.7

The trial court then came to the conclusion that if Johnson Lee was not paid for his car, he had no one but Roger Chavez to blame.

The sum of all these is that the trial court freed all the accused except Roger Chavez who was found guilty beyond reasonable doubt of the crime of qualified theft. He was accordingly sentenced to suffer an

The three (3) Informations charged appellant with having committed the crimes at bar with treachery and evident premeditation. Evident premeditation was correctly ruled out by the trial court for, admittedly, the shooting incident was merely a casual encounter or a chance meeting on the street since the victims were unknown to appellant and vice-versa It, however, appreciated the presence of the qualifying circumstance of treachery.

We hold that the prosecution failed to prove treachery in the killing of Chapman. Prosecution witness Leino established the sequence of events leading to the shooting. He testified that for no apparent reason, appellant suddenly alighted from his car and accosted him and Maureen Hultman who were then walking along the sidewalk. Appellant questioned who they were and demanded for an I.D. After Leino handed him his I.D., Chapman appeared from behind Leino and asked what was going on. Chapman then stepped down on the sidewalk and inquired from appellant what was wrong. There and then, appellant pushed Chapman, pulled a gun from inside his shirt, and shot him. The gun attack was unexpected. "Why did you shoot me?" was all Chapman could utter.

Concededly, the shooting of Chapman was carried out swiftly and left him with no chance to defend himself. Even then, there is no evidence on record to prove that appellant consciously and deliberately adopted his mode of attack to insure the accomplishment of his criminal design without risk to himself. It appears to us that appellant acted on the spur of the moment. Their meeting was by chance. They were strangers to each other. The time between the initial encounter and the shooting was short and unbroken. The shooting of Chapman was thus the result of a rash and impetuous impulse on the part of appellant rather than a deliberate act of will. We have consistently ruled that mere suddenness of the attack on the victim would not, by itself, constitute treachery. 187 Hence, absent any qualifying circumstance, appellant should only be held liable for Homicide for the shooting and killing of Chapman.

As to the wounding of Jussi Leino and the killing of Maureen Hultman, we hold that treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, appellant ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellant's car. When appellant went after her, Maureen moved around his car and tried to put some distance between them. After a minute or two, appellant got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and begging for mercy, the two were gunned down by appellant. Clearly, appellant purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman — a period which appellant used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Treachery was thus correctly appreciated by the trial court against appellant insofar as the killing of Hultman and the wounding of Leino are concerned.

V and VI

We come now to the civil liability imposed against appellant. Appellant posits that the awards of moral and exemplary damages and for loss of earning capacity of Maureen Hultman, Roland Chapman and Jussi Leino were exorbitant. He likewise claims that the trial court's award of attorney's fees was excessive.

In its Decision, the trial court awarded to Jussi Leino end the heirs of victims Hultman and Chapman the following damages:

1. For the murder of Roland John Chapman, appellant was sentenced to pay the heirs of the deceased the sum of Fifty Thousand Pesos (P50,000.00) as indemnity for death and the sum of Five Hundred Thousand Pesos (P500,000.00) as moderate or temperate and exemplary damages.

2. For the murder of Maureen Navarro Hultman, appellant was sentenced to pay the heirs of the deceased the sum of: Fifty Thousand Pesos (P50,000.00) as indemnity for death; Two Million Three

indeterminate penalty of not less than ten (10) years, one (1) day, as minimum and not more than fourteen (14) years, eight (8) months and one (1) day as maximum, to indemnify Dy Sun Hiok and/or Johnson Lee in the sum of P21,000.00 without subsidiary imprisonment in case of insolvency, to undergo the accessory penalties prescribed by law, and to pay the costs. The Thunderbird car then in the custody of the NBI was ordered to be turned over to Ricardo Sumilang, who was directed to return to Asistio the sum of P1,000.00 unless the latter chose to pay P21,500.00, representing the balance of the contract price for the car.

The foregoing sentence was promulgated on March 8, 1965. Roger Chavez appealed to the Court of Appeals.

Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos(P2,350,461.83) as actual damages; Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased; and, One Million Pesos as moral, moderate and exemplary damages.

3. For the shooting of Jussi Olavi Leino, appellant was sentenced to pay: Thirty thousand pesos (P30,000.00) as indemnity for the injury; One Hundred Eighteen Thousand Three-Hundred Sixty Nine Pesos and Eighty-Four Centavos (P118,369.84) and the sum equivalent in Philippine pesos of U.S.$55,600.00, both as actual damages; an amount equivalent in Philippine pesos of U.S.$40,000.00, for loss of earning capacity of Jussi Leino; and, One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages.

4. In all three cases, appellant was also ordered to pay each of the offended parties the sum of One Million Pesos (or a total of three million pesos) for attorney's fees and expenses of litigation.

5. Costs of litigation. 188

The early case of Heirs of Raymundo Castro v. Bustos 189 discussed in detail the matter of damages recoverable in case of death arising from a felony, thus:

When the commission of a crime results in death, the civil obligations arising therefrom are governed by penal laws, ". . . subject to the provisions of Art. 2177, and of the pertinent provisions of Chapter 2, Preliminary Title on Human Relations, and of Title XVIII of this Book (Book IV) regulating damages." (Art. 1161, Civil Code)

Thus, "every person criminally liable for a felony is also civilly liable." (Art. 100, Revised Penal Code). This civil liability, in case the felony involves death, includes indemnification for consequential damages (Art. 104, id.) and said consequential damages in turn include ". . . those suffered by his family or by a third person by reason of the crime." (Art. 107, id.) Since these provisions are subject, however, as above indicated, to certain provisions of the Civil Code, (w)e will now turn to said provisions.

The general rule in the Civil Code is that:

In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably foreseen by the defendant. (Art. 2202)

When, however, the crime committed involves death, there is Art. 2206 which provides thus:

The amount of damages for death caused by a crime or quasi-delict shall be at least three thousand pesos even though there may have been mitigating circumstances. In addition:

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of

On April 18, 1968, the Court of Appeals required Atty. Natividad Marquez, counsel for Roger Chavez, to show cause within ten days from notice why Chavez' appeal should not be considered abandoned and dismissed. Reason for this is that said lawyer received notice to file brief on December 28, 1967 and the period for the filing thereof lapsed on January 27, 1968 without any brief having been filed.

On May 13, 1968, Atty. Marquez registered a detailed written explanation. She also stated that if she were allowed to file appellant's brief she would go along with the factual findings of the court below but will show however that its conclusion is erroneous.8

On May 14, 1968, the Court of Appeals, despite the foregoing explanation, resolved to dismiss the appeal. A move to reconsider was unavailing. For, on June 21, 1968, the Court of Appeals, through a per

permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

(2) If the deceased was obliged to give support according to the provisions of article 291, the recipient who is not an heir called to the descendant's inheritance by law of testate or intestate succession, may demand support from the person causing the death, for a period not exceeding five years, the exact duration to be fixed by the court;

(3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

The amount of P3,000 referred to in the above article has already been increased by this Court first, to P6,000.00 in People v. Amansec, 80 Phil. 426, and lately to P12,000.00 in the case of People v. Pantoja, G.R. No. L-18793, promulgated October 11, 1968 190, and it must be stressed that this amount, as well as the amount of moral damages, may be adjudicated even without proof of pecuniary loss, the assessment of the moral damages being "left to the discretion of the court, according to the circumstances of each case." (Art. 2216)

Exemplary damages may also be imposed as a part of this civil liability when the crime has been committed with one or more aggravating circumstances, such damages being "separate and distinct from fines and shall be paid to the offended party." (Art. 2230). Exemplary damages cannot however be recovered as a matter of right; the court will decide whether or not they should be given. (Art. 2233)

In any event, save as expressly provided in connection with the indemnity for the sole fact of death (1st par., Art. 2206) and is cases wherein exemplary damages are awarded precisely because of the attendance of aggravating circumstances, (Art. 2230) ". . . damages to be adjudicated may be respectively increased or lessened according to the aggravating or mitigating circumstances," (Art. 2204) "but the party suffering the loss or injury must exercise the diligence of a good father of a family to minimize the damages resulting from the act or omission in question." (Art. 2203) "Interest as a part of the damages, may, in a proper case, be adjudicated in the discretion of the Court." (Art. 2211) As to attorneys' fees and expenses of litigation, the same may be recovered only when exemplary damages have been granted (Art. 2208, par. 1) or . . . when there is a separate civil action.

Stated differently, when death occurs as a result of a crime, the heirs of the deceased are entitled to the following items of damages:

1. As indemnity for the death of the victim of the offense — P12,000.00 (now P50,000.00), without the need of any evidence or proof of damages, and even though there may have been mitigating circumstances attending the commission of the offense.

2. As indemnity for loss of earning capacity of the deceased — an amount to be fixed by the court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be

curiam resolution, disposed to maintain its May 14 resolution dismissing the appeal, directed the City Warden of Manila where Chavez is confined by virtue of the warrant of arrest issued by the Court of Appeals, to turn him over to Muntinlupa Bilibid Prisons pending execution of the judgment below, and ordered remand of the case to the Quezon City court for execution of judgment.

It was at this stage that the present proceedings were commenced in this Court.

Upon the petitions, the return, and the reply, and after hearing on oral arguments, we now come to grips with the main problem presented.

assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court.

3. As moral damages for mental anguish, — an amount to be fixed by the court. This may be recovered even by the illegitimate descendants and ascendants of the deceased.

4. As exemplary damages, when the crime is attended by one or more aggravating circumstances, — an amount to be fixed in the discretion of the court, the same to be considered separate from fines.

5. As attorney's fees and expenses of litigation, — the actual amount thereof, (but only when a separate civil action to recover civil liability has been filed or when exemplary damages are awarded).

6. Interests in the proper cases.

7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 (now P50,000.00) corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons. 191

We shall first review the damages awarded to the heirs of ROLAND JOHN CHAPMAN in light of the law and the case law.

Appellant claims that the award of Five Hundred Thousand (P500,000.00) pesos as moderate or temperate and exemplary damages to the heirs of Roland John Chapman was baseless.

We start with the observation that the trial court should not have lumped together the awards for moderate or temperate and exemplary damages at Five Hundred Thousand Pesos (P500,000.00), without specifying the particular amount which corresponds to each, as they are of a different kind. We shall, however, consider their propriety and reasonableness.

The amount of Five Hundred Thousand (P500,000.00) pesos cannot be given as temperate or moderate damages for the records do not show any basis for sustaining the award. Nor can it be given as exemplary damages. The killing of Chapman was not attended by either evident premeditation or treachery. Be that as it may, the award can be considered as one for moral damages under Article 2206 (3) of the New Civil Code. 192 It states:

Art. 2206. The amount of damages for death caused by a crime . . . shall be at least (fifty thousand pesos, under current jurisprudence) . . . In addition:

xxx xxx xxx

We concentrate attention on that phase of the issues which relates petitioner's assertion that he was compelled to testify against himself. For indeed if this one question is resolved in the affirmative, we need not reach the others; in which case, these should not be pursued here.

1. Petitioner's plea on this score rests upon his averment, with proof, of violation of his right — constitutionally entrenched — against self-incrimination. He asks that the hand of this Court be made to bear down upon his conviction; that he be relieved of the effects thereof. He asks us to consider the constitutional injunction that "No person shall be compelled to be a witness against himself,"9 fully echoed in Section 1, Rule 115, Rules of Court where, in all criminal prosecutions, the defendant shall be entitled: "(e) To be exempt from being a witness against himself." .

It has been said that forcing a man to be a witness against himself is at war with "the fundamentals of a republican government"; 10 that [i]t may suit the purposes of despotic power but it can not abide the pure

(3) The spouse, legitimate or illegitimate descendants and ascendants of the deceased may demand moral damages for mental anguish by reason of the death of the deceased.

Moreover, considering the shocking and senseless aggression committed by appellant, we increase the amount of moral damages to One Million (P1,000,000.00) pesos for the death of Chapman.

We next rule on the legality of damages awarded to the heirs of MAUREEN NAVARRO HULTMAN.

Appellant argues that the damages for the death of Maureen should be awarded to her mother, Vivian Hultman, and her natural father. He contends that under Article 352 of the New Civil Code, Anders Hultman as adoptive father of Maureen, is not entitled to said award. Only the parents by nature of Maureen should inherit from her.

We reject the argument. Under the Family Code which was already in effect at the time of Maureen's death, Anders Hultman, as adoptive father, is entitled to the award made by the trial court. Article 190 of the Family Code provides:

xxx xxx xxx

(2) When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters;

xxx xxx xxx

(5) When only the adopters survive, they shall inherit the entire estate;

It does not appear on the records whether Maureen was survived by her natural father. During the trial of these cases, only Vivian and Anders Hultman testified on their claim of damages. Hence, we find that the award of damages in their favor has sufficient factual and legal basis.

Appellant also urges that the award to the heirs of Maureen Hultman of One Million Pesos (P1,000,000.00) as moral and exemplary damages is unjustified or, at the very least, exorbitant and should be reduced.

We hold that the award of One Million (P1,000,000.00) pesos is amply justified by the circumstances. The records reveal that Maureen recovered between life and death for ninety-seven (97) days. Her family experienced the peaks and valleys of unspeakable suffering. During that time, she underwent brain surgery three (3) times. Her condition was never stable and remained critical. It was always touch and go with death. She could not be left alone at the hospital. Her parents had to be perpetually by her side at least six (6) to seven (7) hours daily. After the shooting, their siblings had to be sent back to Sweden for their safety. Left unattended, her family's business took a downspin. Soon, her family's assets were depleted, then wiped out. A total of twenty-three (23) doctors attended to her and their bills ballooned without abatement. They were forced to rely on the goodness of the gracious. Her family started receiving contributions from other people to defray the medical expenses and hospital bills. 193 Maureen never regained consciousness until her demise on October 17, 1991, at the tender age of seventeen. Under the foregoing circumstances, we thus find the award of One Million Pesos (P1,000,000.00) as moral damages to be reasonable.

atmosphere of political liberty and personal freedom."11 Mr. Justice Abad Santos recounts the historical background of this constitutional inhibition, thus: " "The maxim Nemo tenetur seipsum accusare had its origin in a protest against the inquisitorial and manifestly unjust methods of interrogating accused persons, which has long obtained in the continental system, and, until the expulsion of the Stuarts from the British throne in 1688, and the erection of additional barriers for the protection of the people against the exercise of arbitrary power, was not uncommon even in England. While the admissions of confessions of the prisoner, when voluntarily and freely made, have always ranked high in the scale of incriminating evidence, if an accused person be asked to explain his apparent connection with a crime under investigation, the ease with which the questions put to him may assume an inquisitorial character, the temptation to press, the witness unduly, to browbeat him if he be timid or reluctant, to push him into a corner, and to entrap him into fatal contradictions, which is so painfully evident in many of the earlier state trials, notably in those of Sir Nicholas Throckmorton, and Udal, the Puritan minister, made the system so odious as to give rise to a demand for its total abolition. The change in the English criminal procedure in

Moreover, we find that the grant of exemplary damages is called for by the circumstances of the case. Under Article 2229 of the Civil Code, 194 in addition to the award of moral damages, exemplary or corrective damages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender.

In the case at bar, appellant's unprovoked aggression snuffed the life of Maureen Hultman, a girl in the prime of her youth. Hultman and her companions were gunned down by appellant in cold-blood, for no apparent reason. Appellant's vicious criminality led to the suffering of his victims and their families. Considering our soaring crime rate, the imposition of exemplary damages against appellant to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing of Hultman was attended by treachery and pursuant to Article 2229 of the new Civil Code, 195 we impose an award of Two Million (P2,000,000.00) pesos as exemplary damages against appellant for the death of Maureen Hultman.

We now review the award of One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages to victim JUSSI LEINO.

From the record, it is incontrovertible that Leino likewise suffered extensive injuries as a result of the shooting. His upper jaw bone was shattered. He would need a bone transplant operation to restore it. His tongue was also injured. He partially lost his sense of taste for his taste buds were also affected. When he was discharged from the hospital, he had difficulty in speaking and had to be fed through a tube running down his nose. He lost eight of his teeth. The roots of his teeth were cut off and the raw nerves were exposed. But all these speak only of his physical injuries and suffering. More devastating was the emotional strain that distressed Leino. His parents were in Europe for a vacation at the time of the shooting. Only a neighbor attended to him at the hospital. It took two (2) days for his father to come and comfort by his bedside. Leino had trouble sleeping in peace at night. The traumatic event woke him up in the middle of the night. Black memories of the incident kept coming back to mind. 196 Understably, the ill-effects of the incident spilled over his family. Seppo Leino, Jussi's father, was tortured by thoughts of insecurity. He had to relocate his entire family to Europe where he felt they would be safe. 197 Under the foregoing circumstances, we find that an award of One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral damages is justified and reasonable.

As in the case of Hultman, since the shooting of Leino was committed with treachery and pursuant to Article 2229 of the New Civil Code, 198 appellant is additionally adjudged liable for the payment to Leino of Two Million (P2,000,000.00) pesos as exemplary damages.

We come now to the trial court's monetary award to compensate the LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN HULTMAN.

To be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, is gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. In Cariaga v. Laguna Tayabas Bus Company, 199 we awarded to the heirs of Cariaga a sum representing loss of his earning capacity although he was still a medical student at the time of injury. However, the award was not without basis for Cariaga was then a fourth year medical student at a reputable school; his scholastic record, which was presented at the trial, justified an assumption that he would have been able to finish his course and pass the board in due time; and a doctor, presented as witness for the appellee, testified as to the amount of income Cariaga would have earned had he finished his medical studies.

that particular seems to be founded upon no statute and no judicial opinion, but upon a general and silent acquiescence of the courts in a popular demand. But, however adopted, it has become firmly embedded in English, as well as in American jurisprudence. So deeply did the iniquities of the ancient system impress themselves upon the minds of the American colonists that the states, with one accord, made a denial of the right to question an accused person a part of their fundamental law, so that a maxim which in England was a mere rule of evidence, became clothed in this country with the impregnability of a constitutional enactment." (Brown vs. Walker, 161 U.S., 591, 597; 40 Law. ed., 819, 821)." 12 Mr. Justice Malcolm, in expressive language, tells us that this maxim was recognized in England in the early days "in a revolt against the thumbscrew and the rack." 13 An old Philippine case [1904] 14 speaks of this constitutional injunction as "older than the Government of the United States"; as having "its origin in a protest against the inquisitorial methods of interrogating the accused person"; and as having been

In the case at bar, the trial court awarded the amount, equivalent in Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with appellant that this amount is highly speculative and should be denied considering that Leino had only earned a high school degree at the International School, Manila, in 1989. He went back to Finland to serve the military and has just arrived in Manila in February 1991 to pursue his ambition to become a pilot. At the time of the shooting on July 13, 1991, he has just enrolled at the Manila Aero Club to become a professional pilot. He was thus only on his first year, first semester, in said school and was practically, a mere high school graduate. Under the foregoing circumstances, we find the records wanting with substantial evidence to justify a reasonable assumption that Leino would have been able to finish his studies at the Manila Aero Club and ultimately become a professional pilot.

We now pass upon the propriety of the award of Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased MAUREEN HULTMAN. We find that the award is not supported by the records.

In adjudging an award for Maureen's loss of earning capacity, the trial court incorrectly used the monthly salary of a secretary working in Sweden, computed at two thousand dollars ($2,000.00) a month, as per the estimate given by Anders Hultman. Nowhere in the records does it appear that, at the time of her death, Maureen had acquired the skills needed for a secretarial job or that she intended to take a secretarial course in preparation for such job in Sweden. Anders Hultman himself testified that there was uncertainty as to Maureen's future career path, thus:

ATTY. VINLUAN:

Q Mr. Witness, if Maureen would not been (sic) shot and she continued her studies, what professional career would she (sic) like to pursue considering her interests and inclinations?

WITNESS:

A That is very difficult to say. She has just turned 17 and our projection is that, certainly she would have been an artist in the creative side. She would have become an actress or a movie producer or probably she would have been a college graduate.

ATTY. VINLUAN:

Q But if you would just say based on the salary of a secretary in Sweden, how much would she have much earned?

A. Not less than Two Thousand Dollars a month. 200

Clearly, there is no factual basis for the award of thirteen million (P13,000,000.00) pesos to the heirs of Maureen far loss of earning capacity as a probable secretary in Sweden.

In any event, what was proved on record is that after graduating from high school, Maureen took up a short personality development course at the John Roberts Powers. Maureen was employed at the John Roberts Powers at the time of her death. It was her first job. In fact, she had just received her first salary, for which reason she went out with her friends to celebrate on that fateful day. However, neither the nature of her work nor her salary in said company was disclosed at the trial. Thus, to compute the award for Maureen's loss of earning capacity, we are constrained to use the minimum wage prevailing as of the date of her death (October 17, 1991), i.e., one hundred eighteen pesos (P118.00). 201 Allowing for

adopted in the Philippines "to wipe out such practices as formerly prevailed in these Islands of requiring accused persons to submit to judicial examinations, and to give testimony regarding the offenses with which they were charged."

So it is then that this right is "not merely a formal technical rule the enforcement of which is left to the discretion of the court"; it is mandatory; it secures to a defendant a valuable and substantive right; 15 it is fundamental to our scheme of justice. Just a few months ago, the Supreme Court of the United States (January 29, 1968), speaking thru Mr. Justice Harlan warned that "[t]he constitutional privilege was intended to shield the guilty and imprudent as well as the innocent and foresighted." 16

reasonable and necessary expenses in the amount of P19,800.00, her net income per annum would amount to P26,859.17. 202 Hence, using the formula repeatedly adopted by this Court: 203 (2/3 x [80 — age of victim at time of death]) x a reasonable portion of the net income which would have been received by the heirs as support, 204 we fix the award for loss of earning as capacity of deceased Maureen Hultman at Five Hundred Sixty-Four Thousand Forty-Two Pesos and Fifty-Seven Centavos (P564,042.57).

It also bears emphasis that in the computation of the award for loss of earning capacity of the deceased, the life expectancy of the deceased's heirs is not factored in. The rule is well-settled that the award of damages for death is computed on the basis of the life expectancy of the deceased, and not the beneficiary. 205

Lastly, appellant seeks a reduction of the award of attorney's fees in the amount of Three Million Pesos (P3,000,000.00), claiming that the same is exorbitant.

We disagree. The three (3) private complainants were represented by the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They agreed to pay the amount of One Million (P1,000,000.00) pesos each as attorney's fees and for litigation expenses. The three criminal cases were consolidated. A continuous trial was conducted, with some hearings having both morning and afternoon sessions. The trial lasted for almost one and a half years. More than forty (40) witnesses testified during the hearings. Several pleadings were prepared and filed. A total of sixty-eight (68) documentary exhibits were presented by the prosecution. Incidents related to the trial of the cases came up to this Court for review at least twice during the pendency of the trial. 206 Given these circumstances and the evident effort exerted by the private prosecutor throughout the trial, the trial court's award of a total of Three Million (P3,000,000.00) pesos as attorney's fees and litigation expenses appears just and reasonable.

VII

In his last assigned error, appellant urges that the hearings conducted on the cases, where no less than forty-one (41) witnesses were presented by the parties, 207 were merely hearings on the petition for bail concerning the murder charge for the killing of Roland Chapman, and not a trial on the merits of all three (3) cases. Appellant insists that after the termination of the hearing, he still had the right to adduce evidence at the trial proper. He claims he was denied due process when the trial court considered all the cases submitted for decision after the defense waived its right to present its surrebuttal evidence.

Appellant's position is untenable. This issue was resolved at the very first hearing of the cases on August 9, 1991. The incident then pending was appellant's petition for bail for the murder of Chapman. It will be remembered that, initially, there was only one murder charge against appellant since Maureen Hultman succumbed to death during the course of the proceedings on October 17, 1991.

Thus, at the initial hearing on August 9, 1991, the incident for resolution was appellant's petition for bail. The prosecution sought to present the surviving victim, Jussi Leino, to testify on all three (3) charges to obviate delay and inconvenience since all three (3) charges involved one continuing incident. Appellant, through counsel, objected to the testimony of Leino insofar as the two (2) frustrated murder charges (with respect to the wounding of Leino and Hultman) were concerned. He argued that since the pending incident was the petition for bail with respect to the killing of Chapman, any testimony relative to the two (2) other charges in which bail were recommended was irrelevant.

After arguments, the defense suggested that if the prosecution would present Leino to testify on all three (3) charges, it should wait until after accused's arraingment on August 14, 1991. 208 The prosecution agreed on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. Defense counsel agreed. 209

It is in this context that we say that the constitutional guarantee may not be treated with unconcern. To repeat, it is mandatory; it secures to every defendant a valuable and substantive right. Tañada and Fernando (Constitution of the Philippines, 4th ed., vol. I, pp. 583-584) take note of U.S. vs. Navarro, supra, which reaffirms the rule that the constitutional proscription was established on broad grounds of public policy and humanity; of policy because it would place the witness against the strongest temptation to commit perjury, and of humanity because it would be to extort a confession of truth by a kind of duress every species and degree of which the law abhors. 17

Therefore, the court may not extract from a defendant's own lips and against his will an admission of his guilt. Nor may a court as much as resort to compulsory disclosure, directly or indirectly, of facts usable against him as a confession of the crime or the tendency of which is to prove the commission of a crime. Because, it is his right to forego testimony, to remain silent, unless he chooses to take the witness stand — with undiluted, unfettered exercise of his own free, genuine will.

As agreed upon, accused was arraigned and the prosecution presented Jussi Leino as its first witness to testify on all three (3) cases. No objection was made by the defense. 210

Subsequent proceedings likewise disprove appellant's insistence that the hearings conducted by the trial court were limited to the petition for bail, viz:

1. The prosecution presented all their witnesses and documentary evidence relative to the shooting incident, including evidence in support of the claim for damages. These witnesses were extensively cross-examined by the defense counsels. The defense never objected that evidence on damages would be unnecessary if its intention was really to limit presentation of evidence to appellant's petition for bail.

2. After the prosecution and the defense rested their cases, the trial court issued an Order 211 directing the parties to submit their Memorandum, after which "the main case as well as the petition for bail are respectively submitted for Decision and Resolution." After receipt of this Order, the defense counsel filed two (2) motions for extension of time to file the defense Memorandum. In both Motions, the defense did not object to the trial court's Order submitting for decision the main case and the petition for bail. Neither did it move for a reconsideration of this Order and notify the court that it still had witnesses to present.

3. In compliance with said Order, appellant's counsel, Atty. Rodolfo Jimenez, filed a Memorandum and Supplemental Memorandum praying for accused's acquittal. This is inconsistent with the defense's position that the hearing conducted was only on the petition for bail. If the defense insist that what was submitted for decision was only his petition for bail, he would have only prayed that he be granted bail.

4. Upon receipt of the notice of promulgation of judgment from the trial court, the defense did not interpose any objection to the intended promulgation. In fact, the defense attended the promulgation of the Decision and manifested that they were ready therefor.

All these clearly show that the merits of the cases and the petition for bail were heard simultaneously and appellant acquiesced thereto. Moreover, appellant's right to present additional evidence was not abridged by the trial court. On the contrary, the records disclose that the trial court afforded the defense fair opportunity to adduce its evidence. It took the defense almost one and a half years to submit its evidence. The defense presented more than twenty (20) witnesses and several documentary evidence. It was only after the trial court rendered a decision against appellant that he filed a motion for newtrial, 212 through his new counsel, Atty. Gatmaytan, Jr. For the first time, he alleged that the joint decision of the cases, both on the merits and on the petition for bail, was irregular for he was not given a chance to present further evidence to corroborate his alibi. We note that in his motion for new trial, 213 appellant did not even identify his alleged additional witnesses and the substance of their testimonies. Nor was it shown that he could not have produced these evidence at the trial with reasonable diligence. Appellant's motion was a patent ploy to delay the decision on his cases. His motion was properly denied by the trial court.

IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the Decision of the trial court, dated December 22, 1992, thus:

Compulsion as it is understood here does not necessarily connote the use of violence; it may be the product of unintentional statements. Pressure which operates to overbear his will, disable him from making a free and rational choice, or impair his capacity for rational judgment would in our opinion be sufficient. So is moral coercion "tending to force testimony from the unwilling lips of the defendant." 18

2. With the foregoing as guideposts, we now turn to the facts. Petitioner is a defendant in a criminal case. He was called by the prosecution as the first witness in that case to testify for the People during the first day of trial thereof. Petitioner objected and invoked the privilege of self-incrimination. This he broadened by the clear cut statement that he will not testify. But petitioner's protestations were met with the judge's emphatic statement that it "is the right of the prosecution to ask anybody to act as witness on the witness stand including the accused," and that defense counsel "could not object to have the accused called on the witness stand." The cumulative impact of all these is that accused-petitioner had to take the stand. He was thus peremptorily asked to create evidence against himself. The foregoing situation molds a solid case for petitioner, backed by the Constitution, the law, and jurisprudence.

Petitioner, as accused, occupies a different tier of protection from an ordinary witness. Whereas an ordinary witness may be compelled to take the witness stand and claim the privilege as each question

(1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman, and sentencing said accused to suffer an indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for the victim's death; and, One Million (P1,000,000.00) pesos as moral damages.

(2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for her death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Five Hundred Sixty-Four Thousand Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of earning capacity of said deceased; One Million Pesos (P1,000,000.00) as moral damages; and Two Million (P2,000,000.00) pesos as exemplary damages.

(3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor as minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum, and to pay the said offended party the following amounts: (P30,000.00) pesos as Thirty Thousand (P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen Thousand Three Hundred Sixty-Nine pesos and Eighty-Four Centavos (P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; One Million (P1,000,000.00) pesos as moral damages; and, Two Million (P2,000,000.00) pesos as exemplary damages.

(4) In all three cases, ordering said accused to pay each of the three (3) offended parties the sum of One Million Pesos (P1,000,000.00; or a total of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses of litigation; and

(5) To pay the costs in all three (3) cases.

SO ORDERED.

Regalado, Mendoza and Francisco, JJ., concur.

Narvasa, C.J., is on leave.

requiring an incriminating answer is shot at him, 19 and accused may altogether refuse to take the witness stand and refuse to answer any and all questions. 20 For, in reality, the purpose of calling an accused as a witness for the People would be to incriminate him. 21 The rule positively intends to avoid and prohibit the certainly inhuman procedure of compelling a person "to furnish the missing evidence necessary for his conviction." 22 This rule may apply even to a co-defendant in a joint trial.23

And the guide in the interpretation of the constitutional precept that the accused shall not be compelled to furnish evidence against himself "is not the probability of the evidence but it is the capability of abuse." 24 Thus it is, that it was undoubtedly erroneous for the trial judge to placate petitioner with these words:.

What he will testify to does not necessarily incriminate him, counsel.

And there is the right of the prosecution to ask anybody to act as witness on the witness-stand including the accused.

If there should be any question that is incriminating then that is the time for counsel to interpose his objection and the court will sustain him if and when the court feels that the answer of this witness to the question would incriminate him.

Counsel has all the assurance that the court will not require the witness to answer questions which would incriminate him.

But surely, counsel could not object to have the accused called on the witness stand.

Paraphrasing Chief Justice Marshall in Aaron Burr's Trial, Robertsons Rep. I, 208, 244, quoted in VIII Wigmore, p. 355, 25 While a defendant's knowledge of the facts remains concealed within his bosom, he is safe; but draw it from thence, and he is exposed" — to conviction.

The judge's words heretofore quoted — "But surely counsel could not object to have the accused called on the witness stand" — wielded authority. By those words, petitioner was enveloped by a coercive force; they deprived him of his will to resist; they foreclosed choice; the realities of human nature tell us that as he took his oath to tell the truth, the whole truth and nothing but the truth, no genuine consent underlay submission to take the witness stand. Constitutionally sound consent was absent.

3. Prejudice to the accused for having been compelled over his objections to be a witness for the People is at once apparent. The record discloses that by leading questions Chavez, the accused, was made to affirm his statement given to the NBI agents on July 17, 1963 at 5:00 o'clock in the afternoon. 26 And this statement detailed the plan and execution thereof by Sumilang (Vasquez), Asistio and himself to deprive the Chinese of his Thunderbird car. And he himself proceeded to narrate the same anew in open court. He identified the Thunderbird car involved in the case. 27

The decision convicting Roger Chavez was clearly of the view that the case for the People was built primarily around the admissions of Chavez himself. The trial court described Chavez as the "star witness for the prosecution". Indeed, the damaging facts forged in the decision were drawn directly from the lips of Chavez as a prosecution witness and of course Ricardo Sumilang for the defense. There are the unequivocal statements in the decision that "even accused Chavez" identified "the very same Thunderbird that Johnson Lee had offered for sale"; that Chavez "testimony as witness for the prosecution establishes his guilt beyond reasonable doubt and that Chavez is "a self-confessed culprit". 1äwphï1.ñët

4. With all these, we have no hesitancy in saying that petitioner was forced to testify to incriminate himself, in full breach of his constitutional right to remain silent. It cannot be said now that he has waived his right. He did not volunteer to take the stand and in his own defense; he did not offer himself as a witness; on the contrary, he claimed the right upon being called to testify. If petitioner nevertheless

answered the questions inspite of his fear of being accused of perjury or being put under contempt, this circumstance cannot be counted against him. His testimony is not of his own choice. To him it was a case of compelled submission. He was a cowed participant in proceedings before a judge who possessed the power to put him under contempt had he chosen to remain silent. Nor could he escape testifying. The court made it abundantly clear that his testimony at least on direct examination would be taken right then and thereon the first day of the trial.

It matters not that, after all efforts to stave off petitioner's taking the stand became fruitless, no objections to questions propounded to him were made. Here involve is not a mere question of self-incrimination. It is a defendant's constitutional immunity from being called to testify against himself. And the objection made at the beginning is a continuing one. 1äwphï1.ñët

There is therefore no waiver of the privilege. "To be effective, a waiver must be certain and unequivocal, and intelligently, understandably, and willingly made; such waiver following only where liberty of choice has been fully accorded. After a claim a witness cannot properly be held to have waived his privilege on vague and uncertain evidence." 28 The teaching in Johnson vs. Zerbst 29 is this: "It has been pointed out that "courts indulge every reasonable presumption against waiver" of fundamental constitutional rights and that we "do not presume acquiescence in the loss of fundamental rights." A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege." Renuntiatio non praesumitur.

The foregoing guidelines, juxtaposed with the circumstances of the case heretofore adverted to, make waiver a shaky defense. It cannot stand. If, by his own admission, defendant proved his guilt, still, his original claim remains valid. For the privilege, we say again, is a rampart that gives protection - even to the guilty. 30

5. The course which petitioner takes is correct. Habeas corpus is a high prerogative writ. 31 It is traditionally considered as an exceptional remedy to release a person whose liberty is illegally restrained such as when the accused's constitutional rights are disregarded. 32 Such defect results in the absence or loss of jurisdiction 33 and therefore invalidates the trial and the consequent conviction of the accused whose fundamental right was violated. 34 That void judgment of conviction may be challenged by collateral attack, which precisely is the function of habeas corpus. 35 This writ may issue even if another remedy which is less effective may be availed of by the defendant. 36 Thus, failure by the accused to perfect his appeal before the Court of Appeals does not preclude a recourse to the writ. 37 The writ may be granted upon a judgment already final. 38 For, as explained in Johnson vs. Zerbst, 39 the writ of habeas corpus as an extraordinary remedy must be liberally given effect 40 so as to protect well a person whose liberty is at stake. The propriety of the writ was given the nod in that case, involving a violation of another constitutional right, in this wise:

Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of Counsel, compliance with this constitutional mandate is an essential jurisdictional prerequisite to a Federal Court's authority. When this right is properly waived, the assistance of Counsel is no longer a necessary element of the Court's jurisdiction to proceed to conviction and sentence. If the accused, however, is not represented by Counsel and has not competently and intelligently waived his constitutional right, the Sixth Amendment stands as a jurisdictional bar to a valid conviction and sentence depriving him of his liberty. A court's jurisdiction at the beginning of trial may be lost "in the course of the proceedings" due to failure to complete the court — as the Sixth Amendment requires — by providing Counsel for an accused who is unable to obtain Counsel, who has not intelligently waived this constitutional guaranty, and whose life or liberty is at stake. If this requirement of the Sixth Amendment is not complied with, the court no longer has jurisdiction to proceed. The judgment of conviction pronounced by a court without jurisdiction is void, and one imprisoned thereunder may obtain release of habeas corpus. 41

Under our own Rules of Court, to grant the remedy to the accused Roger Chavez whose case presents a clear picture of disregard of a constitutional right is absolutely proper. Section 1 of Rule 102 extends the writ, unless otherwise expressly provided by law, "to all cases of illegal confinement or detention by which any person is deprived of his liberty, or by which the rightful custody of any person is withheld from the person entitled thereto.

Just as we are about to write finis to our task, we are prompted to restate that: "A void judgment is in legal effect no judgment. By it no rights are divested. From it no rights can be obtained. Being worthless in itself, all proceedings founded upon it are equally worthless. It neither binds nor bars any one. All acts performed under it and all claims flowing out of it are void. The parties attempting to enforce it may be responsible as trespassers. ... " 42

6. Respondents' return 43 shows that petitioner is still serving under a final and valid judgment of conviction for another offense. We should guard against the improvident issuance of an order discharging a petitioner from confinement. The position we take here is that petitioner herein is entitled to liberty thru habeas corpus only with respect to Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, under which he was prosecuted and convicted.

Upon the view we take of this case, judgment is hereby rendered directing the respondent Warden of the City Jail of Manila or the Director of Prisons or any other officer or person in custody of petitioner Roger Chavez by reason of the judgment of the Court of First Instance of Rizal, Quezon City Branch, in Criminal Case Q-5311, entitled "People of the Philippines, plaintiff, vs. Ricardo Sumilang, et al., accused," to discharge said Roger Chavez from custody, unless he is held, kept in custody or detained for any cause or reason other than the said judgment in said Criminal Case Q-5311 of the Court of First Instance of Rizal, Quezon City Branch, in which event the discharge herein directed shall be effected when such other cause or reason ceases to exist.

No costs. So ordered.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Angeles and Fernando, JJ., concur. Castro, J., concurs in a separate opinion.

Separate Opinions

CASTRO, J., dissenting :

In 1901, early in the history of constitutional government in this country, this Court reversed the conviction of an accused who, having pleaded "not guilty," was required by the judge to testify and answer the complaint. The case was that of United States v. Junio, reported in the first volume of the Philippine Reports, on page 50 thereof.

Resolution of the case did not require an extended opinion (it consumed no more than a page in the Reports). For indeed the facts fitted exactly into the prohibition contained in The President's Instruction to the (Second) Philippine Commission1 "that no person shall ... be compelled in any criminal case to be a witness against himself.".

There was no need either for a dissertation on the Rights of Man, though occasion for this was not lacking as the predominant American members of the Court were under a special commission to prepare the Filipinos for self-government. The privilege against self-incrimination was fully understood by the Filipinos, whose own history provided the necessary backdrop for this privilege. 2

The Supreme Court simply said, "The judge had no right to compel the accused to make any statement whatever," and declared the proceedings void.

Nor was there a similar judicial error likely to be committed in the years to come, what with the constant reminder of a Bill of Rights enshrined in successive organic acts intended for the Philippines.3 This is not to say that the Philippine history of the privilege ended with the Junio case. To be sure, violations of the privilege took other, and perhaps subtle, forms4 but not the form directly prohibited by the privilege. Even in the recent case of Cabal v. Kapunan5 it was assumed as a familiar learning that the accused in a criminal case cannot be required to give testimony and that if his testimony is needed at all against his co-accused, he must first be discharged.6 If Cabal, the respondent in an administrative case, was required by an investigating committee to testify, it was because it was thought that proceedings for forfeiture of illegally acquired property under Republic Act 13797 were civil and not criminal in nature. Thus Mr. Justice (now Chief Justice) Concepcion could confidently say:

At the outset, it is not disputed that the accused in a criminal case may refuse not only to answer incriminatory questions but also to take the witness stand. (3 Whartons Criminal Evidence, pp. 1959-1960; 98 C.J.S., p. 264). Hence, the issue before us boils down to whether or not the proceedings before the aforementioned Committee is civil or criminal in character.

Today, perhaps because of long separation from our past, we need what Holmes called "education in the obvious, more than investigation of the obscure."8 The past may have receded so far into the distance that our perspectives may have been altered and our vision blurred.

When the court in the case at bar required the petitioner to testify, it in effect undid the libertarian gains made over half a century and overturned the settled law. The past was recreated with all its vividness and all its horrors: John Lilburne in England in 1637, refusing to testify before the Council of the Star Chamber and subsequently condemned by it to be whipped and pilloried for his "boldness in refusing to take a legal oath;"9 the Filipino priests Gomez, Burgos and Zamora in 1872 condemned by the Inquisition to die by their own testimony. 10

It is for this reason that I deem this occasion important for the expression of my views on the larger question of constitutional dimension.

No doubt the constitutional provision that "No person shall be compelled to be a witness against himself" 11 may, on occasion, save a guilty man from his just deserts, but it is aimed against a more far reaching evil — recurrence of the Inquisition and the Star Chamber, even if not in their stark brutality. Prevention of the greater evil was deemed of more importance than occurrence of the lesser evil. 12 As Dean Griswold put the matter with eloquence:.

[T]he privilege against self-incrimination is one of the great landmarks in man's struggle to make himself civilized ... [W]e do not make even the most hardened criminal sign his own death warrant, or dig his own grave, or pull the lever that springs the trap on which he stands. We have through the course of history developed considerable feeling of the dignity and intrinsic importance of the individual man. Even the evil man is a human being. 13

The Government must thus establish guilt by evidence independently and freely secured; it can not by coercion prove a charge against an accused out of his own mouth. 14

This is not what was done here. What was done here was to force the petitioner to take the witness stand and state his part in the crime charged as "star witness for the prosecution," to use the very words of the decision, and, by means of his testimony, prove his guilt. Thus, the trial court said in its decision:

Roger Chavez does not offer any defense. As a matter of fact, his testimony as a witness for the prosecution establishes his guilt beyond reasonable doubt.

The petitioner has been variously described by the trial court as "a car agent ... well versed in this kind of chicanery" "a self-confessed culprit," and "a man with at least two convictions for acts not very different from those charged in [the] information." But if he has thus been described it was on the basis of evidence wrung from his lips. If he was ultimately found guilty of the charge against him it was because of evidence which he was forced to give. In truth he was made the "star witness for the prosecution" against himself.

But neither torture nor an oath nor the threat of punishment such as imprisonment for contempt can be used to compel him to provide the evidence to convict himself. No matter how evil he is, he is still a human being.

The fact that the judgment of conviction became final with the dismissal of the appeal to the Court of Appeals for failure of the petitioner's former counsel to file a brief,15 is of no moment. That judgment is void, and it is precisely the abiding concern of the writ of habeas corpus to provide redress for unconstitutional and wrongful convictions. Vindication of due process, it has been well said, is precisely the historic office of the Great Writ. 16

In many respects, this case is similar to that of Fay v. Noia. 17 Noia was convicted of murder in 1942 with Santo Caminito and Frank Bonino in the County Court of Kings County, New York, in the killing of one Hemmeroff during the commission of a robbery. The sole evidence against each defendant was his signed confession. Caminito and Bonino, but not Noia appealed their convictions to the Appellate Division of the New York Supreme Court. These appeals were unsuccessful but subsequent legal proceedings resulted in the releases of Caminito and Bonino upon findings that their confessions had been coerced and their conviction therefore procured in violation of the Fourteenth Amendment. Although Noia's confession was found to have been coerced, the United States District Court for the Southern District of New York held that, because of Noia's failure to appeal, he must be denied reliefin view of the provision of 28 U.S.C. sec. 2254 that "An application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State. ..." The Court of Appeals for the Second Circuit reversed the judgment of the District Court and ordered Noia's conviction set aside, with direction to discharge him from custody unless given a new trial forthwith. From that judgment the State appealed.

As the Supreme Court of the United States phrased the issue, the "narrow question is whether the respondent Noia may be granted federal habeas corpus relief from imprisonment under a New York conviction now admitted by the State to rest upon a confession obtained from him in violation of the Fourteenth Amendment, after he was denied state post-conviction relief because the coerced confession claim had been decided against him at the trial and Noia had allowed the time for a direct appeal to lapse without seeking review by a state appellate court."

In affirming the judgment of the Court of Appeals, the United States Supreme Court, through Mr. Justice Brennan, spoke in enduring language that may well apply to the case of Roger Chavez. Said the Court: 1äwphï1.ñët

Today as always few indeed is the number of State prisoners who eventually win their freedom by means of federal habeas corpus. These few who are ultimately successful are persons whom society has grievously wronged and for whom belated liberation is little enough compensation. Surely no fair minded person will contend that those who have been deprived of their liberty without due process of law ought nevertheless to languish in prison. Noia, no less than his co-defendants Caminito and Bonino, is conceded to have been the victim of unconstitutional state action. Noia's case stands on its own; but surely no just and humane legal system can tolerate a result whereby a Caminito and a Bonino are at liberty because their confessions were found to have been coerced yet Noia, whose confession was also coerced, remains in jail for life. For such

anomalies, such affronts to the conscience of a civilized society, habeas corpus is predestined by its historical role in the struggle for personal liberty to be the ultimate remedy. If the States withhold effective remedy, the federal courts have the power and the duty to provide it. Habeas Corpus is one of the precious heritages of Anglo-American civilization. We do no more today than confirm its continuing efficacy.

A fitting conclusion of this separate opinion may perhaps be found in two memorable admonitions from Marjorie G. Fribourg and Justice William O. Douglas.

Mrs. Fribourg, in her inimitable phrase, warns us that —

... Time has taught its age-old lesson. Well-meaning people burnt witches. Well-meaning prosecutors have convicted the innocent. Well-meaning objectives espoused by those not grounded in history can lure us from protecting our heritage of equal justice under the law. They can entice us, faster than we like to believe, into endangering our liberties.18

And these are the unforgettable words of Justice Douglas:

The challenge to our liberties comes frequently not from those who consciously seek to destroy our system of government, but from men of goodwill - good men who allow their proper concerns to blind them to the fact that what they propose to accomplish involves an impairment of liberty.

x x x           x x x           x x x

The motives of these men are often commendable. What we must remember, however, is that preservation of liberties does not depend on motives. A suppression of liberty has the same effect whether the suppressor be a reformer or an outlaw. The only protection against misguided zeal is constant alertness to infractions of the guarantees of liberty contained in our Constitution. Each surrender of liberty to the demands of the moment makes easier another, larger surrender. The battle over the Bill of Rights is a never ending one. 1äwphï1.ñët

x x x           x x x           x x x

The liberties of any person are the liberties of all of us.

x x x           x x x           x x x

In short, the liberties of none are safe unless the liberties of all are protected.

But even if we should sense no danger to our own liberties, even if we feel secure because we belong to a group that is important and respected, we must recognize that our Bill of Rights is a code of fair play for the less fortunate that we in all honor and good conscience must observe.19