THIRD DIVISION

PEOPLE OF THE PHILIPPINES, G.R. No. 148547

Petitioner,
Present:
QUISUMBING, J., Chairperson,
- versus - CARPIO,
CARPIO MORALES,
TINGA, and
VELASCO, JR., JJ.
HON. MARCIAL G. EMPLEO,
in his capacity as Presiding Judge
of Branch 9, Regional Trial Court, Promulgated:
Dipolog City and DANTE MAH
y CABILIN,
Respondents. September 27, 2006
x--------------------------------------------------x

DECISION
CARPIO, J.:
The Case
This petition for review on certiorari [1] seeks to reverse the Decision[2] promulgated
on 19 June 2001 of the Court of Appeals in CA-G.R. SP No. 59269. The Court of
Appeals
affirmed
the
Resolution
and
Order
of
Judge Marcial G. Empleo (Judge Empleo) of the Regional Trial Court
of Dipolog City, Branch 9 (trial court), directing the prosecutor to amend the
two Informations filed by filing only a single Information.
The Facts

On 6 October 1999, a search warrant[3] was issued for the search and seizure
of shabu and paraphernalia at the room rented by private respondent
Dante Mah (private respondent) at the LS Lodge located at the corner
of Quezon Avenue and Mabini Street in Dipolog City.
During the search, the police officers seized the following from private respondents
room:
1.
Thirty-two small
plastic
sachets
containing
white
crystalline granules believed to be shabu, weighing 2 grams;
2. Six big plastic sachets containing white crystalline granules
believed to be shabu, weighing 4.4 grams;
3. One roll/stick of dried Indian hemp (marijuana) leaves weighing 0.2
gram; and
4. One small plastic sachet containing white crystalline granules
believed to be shabu, weighing 0.05 grams.[4]

Police Superintendent Virgilio T. Ranes, Dipolog City Chief of Police, filed two
criminal complaints for violation of Section 8, Article II and Section 16, Article III
of Republic Act No. 6425[5] (RA 6425), as amended, against private
respondent. After preliminary investigation, State Prosecutor Rodrigo
T. Eguia filed two Informations before the Regional Trial Court in Dipolog City:

Criminal Case No. 9272

INFORMATION
The undersigned Prosecutor of Region 9 accuses DANTE MAH y Cabilin of the
crime of VIOLATION OF SECTION 16, ARTICLE III of R.A. 6425, as amended,
committed as follows:
That on October 6, 1999 at 10:30, more or less at
corner Quezon Avenue
and Mabini Streets, Barra, Dipolog City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, knowing fully well that unauthorized
possession and control of regulated drug is punishable by law, did
then and there willfully, unlawfully and feloniously have in his

possession and control Thirty Two (32) pieces small plastic sachets
and six (6) pieces big plastic sachet containing Methamphetamine
Hydrochloride, more popularly known as shabu, weighing a total
of 6.4 grams, without any legal authority to possess the same, in
gross Violation of Section 16, Article III, of R.A. 6425, as
amended.
CONTRARY TO LAW.[6]

Criminal Case No. 9279

INFORMATION
The undersigned State Prosecutor of Region 9 accuses DANTE MAH
y Cabilin alias Dodoy Mah of the crime of Violation of Section 8, Article II of
Republic Act No. 6425, as amended, committed as follows:
That on October 6, 1999 at 10:30 in the morning, more or less, at
corner Quezon Avenue
and Mabini Streets, Barra, Dipolog City,
Philippines, and within the jurisdiction of this Honorable Court, the
above-named accused, knowing fully well that possession and use
of prohibited drugs is punishable by law, did then and there
willfully, unlawfully and feloniously have in his possession and
control One (1) roll/stick dried marijuana leaves, without legal
authority to possess the same, in gross Violation of Section 8,
Article II of Republic Act No. 6425, as amended.
CONTRARY TO LAW.[7]

Upon his arraignment on 28 October 1999, private respondent pleaded not guilty to
the two charges.
On 17 February 2000, private respondent filed a motion[8] to dismiss Criminal Case
No. 9279. Private respondent alleged that the single act of possession of drugs
committed at the same time and at the same place cannot be the subject of two
separate Informations. Since the prosecution already filed Criminal Case No.
9272, then the filing of Criminal Case No. 9279 is tantamount to splitting a single
cause of action into two separate cases.
The prosecution opposed the motion, claiming that unauthorized possession
of marijuana and shabu are punishable under Section 8, Article II and Section 16,

Article III of RA 6425. Hence, these acts constitute two separate and distinct
offenses with separate penalties.[9]
In a Resolution[10] dated 3 April 2000, Judge Empleo directed the prosecutor to file
only a single Information. The Resolution reads in part:
It is to be noted that the stuffs, SHABU and Marijuana Leaves are all prohibited
and regulated drugs. But what is important is that the search and seizure was done
at one time, the same place and at one occasion. Hence, there could be no two
crimes committed, regardless of the two kinds of prohibited/regulated drugs that
were confiscated from the accused. There is in this case a clear case of splitting
one single criminal act into two separate crimes.
Considering, however, that the penalty of this kind of offenses are based on the
number of grams of the regulated/prohibited drugs, instead of having these cases
dismissed, the Office of the City Prosecutor of Dipolog City is hereby directed to
amend its information by filing one single information.[11]

The prosecution filed a motion for reconsideration,[12] arguing that violation of any
of the provisions of RA 6425 constitutes a separate and distinct offense. The
prosecution maintained that private respondent cannot be charged with violating
Articles II and III of RA 6425 in one Information because that would be
tantamount to charging him with more than one offense in a single Information.
The trial court denied the motion in an Order[13] dated 2 May 2000.
Petitioner filed a petition for certiorari with the Court of Appeals, which dismissed
the petition. Hence this petition.
Meanwhile, in an Order[14] dated 12 May 2000, the trial court suspended further
proceedings in Criminal Case Nos. 9272 and 9279 pending resolution of the
petition. However, in a Resolution[15] dated 27 April 2004, the trial court, upon
private respondents motion, dismissed Criminal Case Nos. 9272 and 9279 for
unreasonable delay in the prosecution of the cases which is violative of the right of
the accused to speedy trial.[16] Upon the prosecutions motion for reconsideration,
the trial court issued an Order[17]
dated 17 June 2004, setting aside its Resolution dated 27 April 2004 and
reinstating Criminal Case Nos. 9272 and 9279, with the proceedings still
suspended pending outcome of the appeal in the Supreme Court.

The Ruling of the Court of Appeals

In a Decision promulgated on 19 June 2001, the Court of Appeals affirmed the

Order and Resolution of the trial court. The Court of Appeals held that the filing of
only one Information is proper because only one violation was committed
possession of dangerous drugs as penalized by RA 6425. The Court of Appeals
ruled that:
In the case at bar, such intent to possess is the possession of a dangerous drug,
however, without regard to the kind of substance involve[d], since both pertain to
dangerous drugs, provided it will be duly established during trial, it shall make the
accused liable for a violation of the Dangerous Drugs Act. As the possession of
the dangerous drugs happened at the same time, same occasion, same place, it
cannot be denied that only one violation [was] committed under the Dangerous
Drugs Act, which is the possession of dangerous drugs. It is not controverted that
at the time of the apprehension, what was found in his possession were
[a] marijuana and shabu. We shall not discount the fact that the circumstances
surrounding the search and seizure point to none other but a single intent to
possess a dangerous drug; not to mention that there is only one occasion, as
compared to other cases wherein the alleged offense happened on different
occasions, that with respect to the latter situation clearly it may not be said [that]
there is only one intent. It can be inferred from the action of the accused and the
surrounding circumstances that there was clearly one act intended by the former
to perpetrate; it is apparent, that the accused seems to have a single intention,
which is his intention to possess the said dangerous drugs. Thus, not just because
it involves two different kinds of dangerous drugs make the said act to constitute
two offenses. As has been repeatedly said by this Court, dangerous drugs refer to
both prohibited and regulated drug.
xxxx
Petitioner contends that since there are two acts of possession, one is possession
of a prohibited drug and the other is possession of a regulated drug, for that
reason, there are two separate offenses that the accused may be held liable for.
Petitioner puts forward the argument that it is immaterial that
the marijuana and shabu were seized in the same place and on the same occasion.
Petitioner further asserts that since two separate provisions of the Dangerous
Drugs Act were violated, concomitantly, herein private respondent may be held
liable for two distinct crimes under the said law. We hold otherwise. A careful
look into the Dangerous Drugs Act would show that it specified the manner of
commission of the particular acts that would amount to a violation of the said law,
and one of which is the possession or use of a prohibited or regulated drug.
Although the law has provided for two separate articles covering the possession or
use of a prohibited and a regulated drug, it does not mean that there are two
separate offenses that it speaks of. What the Dangerous Drugs Act penalizes is the
specific act of possession or use of dangerous drugs, among others, regardless of
the fact that it is a prohibited or a regulated drug.[18] (Emphasis in the original)

The Issue
The main issue in this case is whether the prosecution should file only one
Information for illegal possession of shabu and marijuana.
The Ruling of the Court
The petition is meritorious.
The Court of Appeals affirmed the Order and Resolution of the trial court that the
prosecution should file only one Information. The Court of Appeals held
that where possession of both prohibited and regulated drugs occurs at the same
time, on the same occasion, and in the same place, only one offense is committed
under RA 6425, which is possession of dangerous drugs.
We cannot subscribe to the appellate courts ruling. Such interpretation dilutes the
severity of the crimes committed. RA 6425 does not prescribe a single punishment
for the various offenses enumerated in the law. On the contrary, RA 6425
enumerates the punishable acts and its corresponding penalty. RA 6425 also
specifies the particular drugs and the corresponding quantity in the imposition of
penalty. For instance, under Section 20 of RA 6425, as amended, the minimum
quantity of marijuana and shabu for purposes of imposing the maximum penalties
are not the same. For marijuana, the quantity must be 750 grams or more while
for shabu, it is 200 grams or more.
The prosecution was correct in filing two separate Informations for the crimes of
illegal possession of shabu and illegal possession of marijuana. Clearly, the
Legislature did not intend to lump these two separate crimes into just one crime
of possession of dangerous drugs. Otherwise, there would be no need to specify the
different kinds of drugs and the corresponding quantity in the application of the
appropriate penalty. Multiple offenses can be committed under RA 6425 even if
the crimes are committed in the same place, at the same time, and by the same
person. Thus, this Court has upheld rulings of the lower courts convicting an
accused charged with two separate crimes of illegal possession ofshabu and illegal
possession of marijuana, even if the crimes were committed at the same time and
in the same place.[19]

Besides, in People v. Tira, we have already ruled that illegal possession

of shabu and marijuana constitutes two separate crimes and therefore,
two Informations should be filed. We held:
The trial court convicted the appellants of violating Section 16, in relation to
Section 20, of Rep. Act No. 6425, as amended. The Office of the Solicitor General
(OSG) asserts that the appellants should be convicted of violating Section 8 of
Rep. Act No. 6425, as amended. We do not agree with the trial court and the
OSG. We find and so hold that the appellants are guilty of two separate
crimes: (a) possession of regulated drugs under Section 16, in relation to
Section 20, of Rep. Act No. 6425, as amended, for their possession of
methamphetamine hydrochloride, a regulated drug; and, (b) violation of
Section 8, in relation to Section 20 of the law, for their possession
of marijuana, a prohibited drug. Although only one Information was filed
against the appellants, nevertheless, they could be tried and convicted for the
crimes alleged therein and proved by the prosecution. In this case, the appellants
were charged for violation of possession of marijuana and shabu in one
Information which reads:
That on or about March 9, 1998, in the Municipality of Urdaneta, province
of Pangasinan, and within the jurisdiction of this Honorable Court, the abovenamed accused, conspiring together, did then and there willfully, unlawfully and
feloniously have in their possession, control and custody the following:
-

Three (3) pieces (sic) sachets of shabu

Six (6) pieces opened sachets of shabu residue
One (1) brick of dried marijuana leaves weighing 721 grams
Twenty-four (24) tea bags of dried marijuana leaves weighing
86.3 grams
Six [6] disposable lighter
One (1) roll Aluminum foil
Several empty plastics (tea bag)
Cash money amounting to P12,536.00 in different
denominations believed to be proceeds of the contraband.

without first securing the necessary permit/license to posses[s] the same.

CONTRARY to Sec. 8, in relation to Sec. 20 of R.A. 6425, as amended.
The Information is defective because it charges two crimes. The appellants
should have filed a motion to quash the Information under Section 3, Rule 117 of
the Revised Rules of Court before their arraignment. They failed to do so.
Hence, under Rule 120, Section 3 of the said rule, the appellants may be
convicted of the crimes charged.[20]

Just like Tira, this case involves illegal possession of both shabu and marijuana.
Hence, it was only proper for the prosecution to file two
separate Informations since there were two distinct and separate crimes
involved. This is in accordance with the rule that a complaint or information must
charge only one offense, except when the law prescribes a single punishment for
various offenses.[21]
WHEREFORE, we SET ASIDE the Decision promulgated on 19 June 2001 of
the Court of Appeals. We ANNUL the Resolution and the Order, dated 3 April
2000 and 2 May 2000, respectively, of the Regional Trial Court of Dipolog City,
Branch 9. We ORDER Judge Marcial G. Empleo to continue with the proceedings
in Criminal Case Nos. 9272 and 9279.
SO ORDERED.
ANTONIO T. CARPIO
Associate Justice
WE CONCUR:

LEONARDO A. QUISUMBING
Associate Justice
Chairperson
CONCHITA CARPIO MORALES DANTE O. TINGA
Associate Justice Associate Justice

PRESBITERO J. VELASCO, JR.

Associate Justice

ATTESTATION
I attest that the conclusions in the above Decision had been reached in consultation
before the case was assigned to the writer of the opinion of the Courts Division.

LEONARDO A. QUISUMBING
Associate Justice
Chairperson

CERTIFICATION
Pursuant to Section 13, Article VIII of the Constitution, and the Division
Chairpersons Attestation, I certify that the conclusions in the above Decision had
been reached in consultation before the case was assigned to the writer of the
opinion of the Courts Division.

ARTEMIO V. PANGANIBAN
Chief Justice

[1]

Under Rule 45 of the 1997 Rules of Civil Procedure.

Penned by Associate Justice Teodoro P. Regino, with Associate Justices Mercedes Gozo-Dadole and Josefina
Guevara-Salonga, concurring.
[3]
Rollo, p. 47.
[4]
Id. at 51.
[5]
Known as The Dangerous Drugs Act of 1972.
[6]
Rollo, p. 52.
[7]
Id. at 54.
[8]
Id. at 57-60.
[9]
Id. at 61-62.
[2]

[10]

Id. at 63-66.
Id. at 65-66.
[12]
Records, pp. 27-28.
[13]
Rollo, p. 68.
[14]
Records, p. 32.
[15]
Id. at 104-106.
[16]
The trial court noted that private respondent has been detained since 6 October 1999. The trial court stated that
there is no showing whether the prosecution indeed elevated the case to the Supreme Court.
[17]
Records, pp. 148-150.
[18]
Rollo, pp. 39-41.
[19]
See Gutang v. People, 390 Phil. 805 (2000); People v. Crespo, 352 Phil. 57 (1998).
[20]
G.R. No. 139615, 28 May 2004, 430 SCRA 134, 153-154.
[21]
See RULES OF COURT, Rule 110, Sec. 13.
[11]

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION

G.R. No. L-80845 March 14, 1994

PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. ERNESTO M. MENDOZA, Presiding Judge, Regional Trial Court of Malaybalay, Bukidnon, Branch 10,
and JUAN MAGALOP y SALVACION, respondents.
The Solicitor General for petitioner.
Public Attorney's Office for private respondent.

BELLOSILLO, J.:
This is a petition for certiorari and mandamus filed by the Office of the Provincial Fiscal (now Provincial Prosecutor) of
Malaybalay, Bukidnon, in behalf of the People of the Philippines, assailing the judgment of respondent Judge Ernesto
M. Mendoza in Crim. Case No. 4264 acquitting accused Juan Magalop y Salvacion, private respondent herein, of the
crime of robbery with force upon things notwithstanding his plea of guilt. Petitioner prays that respondent Judge be
ordered to reverse his judgment exonerating Magalop and, instead, to impose upon him the proper penalty for the
offense to which he pleaded guilty.
The evidence discloses that on 20 January 1987, the storeroom of the Bukidnon National School of Home Industries
(BNSHI) in Maramag, Bukidnon, was ransacked. After an on-the-spot investigation, the police found themselves at a
loss as to the identity of the culprit or culprits. The value of the missing articles was estimated at P15,298.15.
Eventually, responsibility for the robbery with force upon things was laid on accused Juan Magalop y Salvacion,
Petronilo Fernandez y Cano and Ricarte Dahilan alias Ricky. All three (3) were represented by District Citizens
Attorney Isidro L. Caracol. At the arraignment on 23 June 1987, Magalop pleaded "guilty" while Fernandez pleaded
"not guilty." The arraignment of Dahilan was deferred as he was "not mentally well."

Instead of pronouncing judgment on Magalop, the court a quo conducted trial. The prosecution presented Pat.
Jakosalem, INP, who investigated the break-in, as well as a clerk and a storekeeper of the BNSHI. The prosecution
likewise offered in evidence colored pictures of the ransacked storeroom, a pair of ordinary pliers colored blue, a pair
of long-nose pliers colored red, and a coping saw. The last three items were said to have been recovered by the
police.
The defense having opted to waive its right to present evidence, the case was submitted for decision.
On 8 October 1987, respondent Judge acquitted accused Fernandez as well as Magalop who earlier pleaded guilty to
the charge. The two-paged, single-spaced judgment is quoted hereunder for careful scrutiny and better appreciation.
Thus
This is a case where three accused were allegedly responsible for forcibly taking things from the
storeroom of the Bukidnon National School of Home Industries.
It was established by the prosecution that the storeroom of the Bukidnon National School of Home
Industries at Maramag, Bukidnon, on January 20, 1987 was ransacked as shown by the
testimonies of the policemen and by the keepers of the storeroom. After on the spot investigation,
the policemen were at a loss to identify the person or persons responsible thereof.
Except for the accused Juan Magalop who pleaded guilty, the identity of the perpetrators remained
a problem. Accused Ricarte Dahilan is mentally deranged; hence the trial was separate for accused
Petronilo Fernandez and Juan Magalop.
As shown by the evidence of the prosecution, some of the stolen things were in the possession of a
certain Babie Tan, consisting of two pliers and a saw, and these were all allegedly sold to said
Babie Tan who refused to testify on the matter.
The evidence of the prosecution failed to prove that the three accused were responsible for stealing
these three articles or tools.
Although Juan Magalop pleaded guilty, it was not shown who (how?) they conspired and helped
each other in the commission of the crime charged. To the Court, the plea of Juan Magalop was
not intelligently done. In the course of the proceedings, it was not established how Juan Magalop
and Petronilo Fernandez participated in the looting. No evidence was introduced to show that the
accused sold the stolen things to Babie Tan, which the prosecution could have proved to show that
the possessors of the stolen things could have been identified as the thief or thieves; hence, the
prosecution utterly failed to prove the guilt of the accused beyond doubt (emphasis supplied).
PREMISES CONSIDERED, the accused Petronilo Fernandez and Juan Magalop are hereby
ACQUITTED. With respect to Ricarte Dahilan, let this case be held in abeyance until he is mentally
well. 1
Its motion for reconsideration having been denied, petitioner is now before us contending that the decision of 8
October 1987 and the order of 4 November 1987 denying reconsideration are "purely capricious and arbitrary, made
for no proper reason at all and rendered without legal authority whatsoever, thereby amounting to lack of jurisdiction
and/or grave abuse of discretion, and curtailed the power of the state to punish criminals." 2
Petitioner submits that the accused Magalop, who was assisted by counsel, had voluntarily, spontaneously and
intelligently pleaded guilty to the crime of robbery with force upon things. Thus, the trial court had no alternative but to
pronounce judgment and impose the proper penalty.

Parenthetically, petitioner interposed no objection to the acquittal of accused Fernandez.

It may be stressed that the petition is defective since it was filed by the Provincial Fiscal and Assistant Provincial
Fiscal of Malaybalay, Bukidnon, and not by the Solicitor General. We have already ruled in a number of cases that
only the Solicitor General may bring or defend actions on behalf of the People of the Philippines once such actions
are brought before the Court of Appeals or the Supreme Court. 3 As a matter of fact, in his Manifestation filed

with this Court on 8 June 1989, the Solicitor General steered away from the case, explaining that the
petition was filed directly by the Provincial Fiscal of Malaybalay, Bukidnon, "without coursing it through the
OSG," as a consequence of which it should be the fiscal who should submit the required pleadings.
Nonetheless, even if we overlook this procedural lapse and treat the case on the merits, the petition should, just the
same, be dismissed.
Petitioner would have this Court set aside the acquittal of Magalop, insisting that with his voluntary plea of guilt, the
trial court had no other recourse but to pronounce judgment and impose the proper penalty.
The essence of a plea of guilty is that the accused admits his guilt freely, voluntarily and with full knowledge and
understanding of the precise nature of the crime charged in the information as well as the consequences of his
plea. 4 It is an unconditional admission of guilt with respect to the offense charged. It forecloses the right to

defend oneself from said charge and leaves the court with no alternative but to impose the penalty fixed
by law under the circumstances. 5Thus, under the 1985 New Rules on Criminal Procedure, as amended,
when the accused pleads guilty to a non-capital offense, the court may receive evidence from the parties
to determine the penalty to be imposed. 6
This rule is at most directory. It will certainly be a clear abuse of discretion on the part of the judge to persist in
holding the accused bound to his admission of guilt and sentencing him accordingly when the totality of the evidence
points to his acquittal. There is no rule which provides that simply because the accused pleaded guilty to the charge
that his conviction automatically follows. Additional evidence independent of the plea may be considered to convince
the judge that it was intelligently made.
Here it is evident, even from the start, that the case of the prosecution against the three (3) accused was virtually
non-existent as the asported articles were found in the possession of a certain Babie Tan and yet, quite inexplicably,
the prosecution did not summon him to the witness stand. Babie Tan could have positively identified those who sold
him the stolen articles if called to testify. Or, he could very well have been the perpetrator of the crime himself. In the
absence of an explanation of how one has come into possession of stolen effects, the possessor is presumed to be
the author of the crime of robbery. 7
Indeed, not even the testimonies and the mute exhibits introduced during the trial could breathe life into the moribund
state of the case for the prosecution. While the loss of articles in the storeroom of the BNSHI was established, there
was nothing, independent of the acknowledgment of guilt, which could link accused Magalop to the robbery. As the
trial court succinctly put it, "the plea of Juan Magalop was not intelligently done."
Admittedly, the procedure followed by respondent judge was not the normal course, as the better procedure would
have been that set forth in People v. Padernal, 8 where the court sustained the exoneration of the accused

notwithstanding his plea of guilt. In that case, in view of the exculpatory testimony of the accused who had
earlier pleaded guilty to the charge of homicide, the trial court correctly considered the plea as withdrawn
and, in its place, ordered a plea of not guilty entered. This was not done by respondent judge. For even
after finding that the plea of Magalop was not intelligently made, Judge Mendoza proceeded to pass
judgment without requiring Magalop to plead anew to the charge. Applying the principle laid down in the
Padernal case, it can fairly be concluded that there was no standing plea at the time the court rendered its
judgment of acquittal hence said acquittal was a nullity.

Be that as it may, however, in the interest of substantial justice, we cannot allow such procedural error to prevail over
the constitutional right of the accused to be presumed innocent until the contrary is proved. In fairness to Magalop,
outside of his improvident plea of guilt, there is absolutely no evidence against him presented or forthcoming. From
the evidence of the prosecution, there is no way by which accused Magalop could have been implicated. It is for this
fundamental reason that, even pro hac vice, his acquittal must be sustained. Interdum even it ut exceptio quae prima
facie justa videtur, tamen inique noceat. It may sometime happen that a plea which on its face seem just,
nevertheless is injurious and inequitable. It is so in this instance.
WHEREFORE, in view of the foregoing, the petition is DISMISSED for lack of merit and the acquittal of the accusedrespondent JUAN MAGALOP Y SALVACION is sustained.
SO ORDERED.
Cruz J., Davide, Jr., Quiason and Kapunan, JJ., concur.

Separate Opinions

CRUZ, J., concurring:

I am bothered by the improvident plea of guilty made by accused Juan Magalop, presumably upon the advice of his
counsel, Atty. Isidro L. Caracol of the CLAO (now the PAO). It would seem that this lawyer was less than
conscientious when he advised his indigent client to admit a crime the man did not commit. As the ponenciaobserves,
"outside of his improvident plea of guilt, there is absolutely no evidence against him presented or forthcoming.
From the evidence of the prosecution, there is no way by which Magalop could have been implicated."
It seems to me that if any one is guilty in this case, it is the PAO lawyer who, through an incredible lack of zeal in the
discharge of his duties, was apparently willing, without any moral compunctions at all, and without proof, to consign
an innocent man to prison.
The PAO is supposed to defend the accused, not to condemn them without cause. The defense counsel in this case
did not seem to appreciate this responsibility when he prodded Magalop to plead guilty and waived the right to submit
evidence in his behalf.

# Separate Opinions
CRUZ, J., concurring:
I am bothered by the improvident plea of guilty made by accused Juan Magalop, presumably upon the advice of his
counsel, Atty. Isidro L. Caracol of the CLAO (now the PAO). It would seem that this lawyer was less than

conscientious when he advised his indigent client to admit a crime the man did not commit. As the ponenciaobserves,
"outside of his improvident plea of guilt, there is absolutely no evidence against him presented or forthcoming.
From the evidence of the prosecution, there is no way by which Magalop could have been implicated."
It seems to me that if any one is guilty in this case, it is the PAO lawyer who, through an incredible lack of zeal in the
discharge of his duties, was apparently willing, without any moral compunctions at all, and without proof, to consign
an innocent man to prison.
The PAO is supposed to defend the accused, not to condemn them without cause. The defense counsel in this case
did not seem to appreciate this responsibility when he prodded Magalop to plead guilty and waived the right to submit
evidence in his behalf.
#Footnotes
1 Annex "C", Rollo, p. 9.
2 Petition, pp. 3-4.
3 People v. Eduarte, G.R. No. 88232, 26 February 1990, 182 SCRA 750; People v. Nano, G.R. No.
94639, 13 January 1992, 205 SCRA 155.
4 People v. Formentera, No. L-30892, 29 June 1984, 130 SCRA 114.
5 People v. Balicasan, No. L-26376, 31 August 1966, 17 SCRA 1119; People v. Ng Pek, 81 Phil.
563 (1948).
6 Rule 116, Sec. 4.
7 Sec. 5, par. (j), Rule 131, Rules of Court; People v. Kagui Malasugui, 63 Phil. 221 (1936).
8 No. L-26734, 5 September 1967, 21 SCRA 34, 40.

SECOND DIVISION

[G.R. No. 116607. April 10, 1996]

EMILIO TUASON, petitioner, vs. COURT OF APPEALS and MARIA

VICTORIA L. TUASON, respondents.
SYLLABUS
1. REMEDIAL LAW; CIVIL PROCEDURE; RELIEF FROM JUDGMENT; ALLOWED
ONLY IN EXCEPTIONAL CASES WHERE THERE IS NO OTHER AVAILABLE OR
ADEQUATE REMEDY. - A petition for relief from judgment is an equitable remedy;
it is allowed only in exceptional cases where there is no other available or adequate
remedy. When a party has another remedy available to him, which may be either a

motion for new trial or appeal from an adverse decision of the trial court, and he was
not prevented by fraud, accident, mistake or excusable negligence from filing such
motion or taking such appeal, he cannot avail himself of this petition. Indeed, relief
will not be granted to a party who seeks avoidance from the effects of the judgment
when the loss of the remedy at law was due to his own negligence; otherwise the
petition for relief can be used to revive the right to appeal which have been lost thru
inexcusable negligence.
2. ID.; ID.; ID.; WHEN AVAILED MUST BE BASED ON THE GROUND OF FRAUD,
ACCIDENT, MISTAKE OR EXCUSABLE NEGLIGENCE AND THAT IT IS SHOWN
THAT PETITIONER HAS A GOOD, SUBSTANTIAL AND MERITORIOUS
DEFENSE OR CAUSE OF ACTION. - A petition for relief from judgment is
governed by Rule 38, Section 2 of the Revised Rules of Court. A final and executory
judgment or order of the Regional Trial Court may be set aside on the ground of
fraud, accident, mistake or excusable negligence. In addition, the petitioner must
assert facts showing that he has a good, substantial and meritorious defense or
cause of action. If the petition is granted, the court shall proceed to hear and
determine the case as if a timely motion for new trial had been granted therein.
3. ID.; ID.; ID.; NOTICES SENT TO COUNSEL OF RECORD, BINDING UPON THE
CLIENT. The failure of petitioners counsel to notify him on time of the adverse
judgment to enable him to appeal therefrom is negligence which is not
excusable. Notice sent to counsel of record is binding upon the client and the
neglect or failure of counsel to inform him of an adverse judgment resulting in the
loss of this right to appeal is not a ground for setting aside a judgment valid and
regular on its face.
4. ID.; ID.; ID.; COUNSEL REQUIRED TO INFORM THE TRIAL COURT THE
REASON FOR HIS CLIENTS NON-APPEARANCE AT THE SCHEDULED
HEARINGS. - Similarly inexcusable was the failure of his former counsel to inform
the trial court of petitioners confinement and medical treatment as the reason for his
non-appearance at the scheduled hearings. Petitioner has not given any reason
why his former counsel, intentionally or unintentionally, did not inform the court of
this fact. This led the trial court to order the case deemed submitted for decision on
the basis of the evidence presented by the private respondent alone. To compound
the negligence of petitioners counsel, the order of the trial court was never assailed
via a motion for reconsideration.
5. ID.; EVIDENCE; CREDIBILITY OF WITNESSES; FACTUAL FINDINGS OF THE
TRIAL COURT UPHELD ABSENT PROOF THAT THE WITNESSES
TESTIMONIES ARE CLEARLY AND MANIFESTLY ERRONEOUS. - Suffice it to
state that the finding of the trial court as to the existence or non-existence of
petitioners psychological incapacity at the time of the marriage is final and binding
on us. Petitioner has not sufficiently shown that the trial courts factual findings and
evaluation of the testimonies of private respondents witnesses vis-a-vispetitioners
defenses are clearly and manifestly erroneous.
6. CONSTITUTIONAL LAW; BILL OF RIGHTS; PROCEDURAL DUE PROCESS; NOT
VIOLATED IF PETITIONER WAS GIVEN OPPORTUNITY TO BE HEARD.

- Petitioner cannot now claim that he was deprived of due process. He may have
lost his right to present evidence but he was not denied his day in court. As the
records show, petitioner, through counsel, actively participated in the proceedings
below. He filed his answer to the petition, cross-examined private respondents
witnesses and even submitted his opposition to private respondents motion for
dissolution of the conjugal partnership of gains.
7. CIVIL LAW; FAMILY CODE; ANNULMENT, DECLARATION OF NULLITY AND
LEGAL SEPARATION; PROSECUTING ATTORNEY OR FISCAL MAY BE
ORDERED BY THE COURT TO INTERVENE ON BEHALF OF THE STATE TO
PREVENT COLLUSION BETWEEN THE PARTIES. - A grant of annulment of
marriage or legal separation by default is fraught with the danger of
collusion. Hence, in all cases for annulment, declaration of nullity of marriage and
legal separation, the prosecuting attorney or fiscal is ordered to appear on behalf of
the state for the purpose of preventing any collusion between the parties and to take
care that their evidence is not fabricated or suppressed. If the defendant spouse
fails to answer the complaint, the court cannot declare him or her in default but
instead, should order the prosecuting attorney to determine if collusion exists
between the parties. The prosecuting attorney or fiscal may oppose the application
for legal separation or annulment through the presentation of his own evidence, if in
his opinion, the proof adduced is dubious and fabricated.
8. ID.; ID.; ID.; NON-INTERFERENCE OF A PROSECUTING ATTORNEY IS NOT
FATAL TO THE VALIDITY OF THE PROCEEDINGS IN THE TRIAL COURT IF
PETITIONER VEHEMENTLY OPPOSED THE ANNULMENT OF THEIR
MARRIAGE IN THE SAID COURT. - The role of the prosecuting attorney or fiscal in
annulment of marriage and legal separation proceedings is to determine whether
collusion exists between the parties and to take care that the evidence is not
suppressed or fabricated. Petitioners vehement opposition to the annulment
proceedings negates the conclusion that collusion existed between the
parties. There is no allegation by the petitioner that evidence was suppressed or
fabricated by any of the parties. Under these circumstances, we are convinced that
the non-intervention of a prosecuting attorney to assure lack of collusion between
the contending parties is not fatal to the validity of the proceedings in the trial court.
APPEARANCES OF COUNSEL
Seguion Reyna, Montecillo & Ongsiako for petitioner.
Salonga, Hernandez & Allado for private respondent.

DECISION
PUNO, J.:

This petition for review on certiorari seeks to annul and set aside the decision dated
July 29, 1994 of the Court of Appeals in CA-G.R. CV No. 37925 denying petitioners
appeal from an order of the Regional Trial Court, Branch 149, Makati in Civil Case No.
3769.

This case arose from the following facts:

In 1989, private respondent Maria Victoria Lopez Tuason filed with the Regional
Trial Court, Branch 149, Makati a petition for annulment or declaration of nullity of her
marriage to petitioner Emilio R. Tuason. In her complaint, private respondent alleged
that she and petitioner were married on June 3, 1972 and from this union, begot two
children; that at the time of the marriage, petitioner was already psychologically
incapacitated to comply with his essential marital obligations which became manifest
afterward and resulted in violent fights between husband and wife; that in one of their
fights, petitioner inflicted physical injuries on private respondent which impelled her to
file a criminal case for physical injuries against him; that petitioner used prohibited
drugs, was apprehended by the authorities and sentenced to a one-year suspended
penalty and has not been rehabilitated; that petitioner was a womanizer, and in 1984, he
left the conjugal home and cohabited with three women in succession, one of whom he
presented to the public as his wife; that after he left the conjugal dwelling, petitioner
gave minimal support to the family and even refused to pay for the tuition fees of their
children compelling private respondent to accept donations and dole-outs from her
family and friends; that petitioner likewise became a spendthrift and abused his
administration of the conjugal partnership by alienating some of their assets and
incurring large obligations with banks, credit card companies and other financial
institutions, without private respondents consent; that attempts at reconciliation were
made but they all failed because of petitioners refusal to reform. In addition to her
prayer for annulment of marriage, private respondent prayed for powers of
administration to save the conjugal properties from further dissipation.
[1]

Petitioner answered denying the imputations against him. As affirmative defense, he

claimed that he and private respondent were a normal married couple during the first
ten years of their marriage and actually begot two children during this period; that it was
only in 1982 that they began to have serious personal differences when his wife did not
accord the respect and dignity due him as a husband but treated him like a persona non
grata; that due to the extreme animosities between them, he temporarily left the
conjugal home for a cooling-off period in 1984; that it is private respondent who had
been taking prohibited drugs and had a serious affair with another man; that petitioners
work as owner and operator of a radio and television station exposed him to malicious
gossip linking him to various women in media and the entertainment world; and that
since 1984, he experienced financial reverses in his business and was compelled, with
the knowledge of his wife, to dispose of some of the conjugal shares in exclusive golf
and country clubs. Petitioner petitioned the court to allow him to return to the conjugal
home and continue his administration of the conjugal partnership.
After the issues were joined, trial commenced on March 30, 1990. Private
respondent presented four witnesses, namely, herself; Dr. Samuel Wiley, a Canon Law
expert and marriage counselor of both private respondent and petitioner; Ms. Adelita
Prieto, a close friend of the spouses, and Any. Jose F. Racela IV, private respondents
counsel. Private respondent likewise submitted documentary evidence consisting of
newspaper articles of her husbands relationship with other women, his apprehension by
the authorities for illegal possession of drugs; and copies of a prior church annulment
decree. The parties marriage was clerically annulled by the Tribunal Metropolitanum
[2]

Matrimoniale which was affirmed by the National Appellate Matrimonial Tribunal in 1986.
[3]

During presentation of private respondents evidence, petitioner, on April 18, 1990,

filed his Opposition to private respondents petition for appointment as administratrix of
the conjugal partnership of gains.
After private respondent rested her case, the trial court scheduled the reception of
petitioners evidence on May 11, 1990.
On May 8, 1990, two days before the scheduled hearing, a counsel for petitioner
moved for a postponement on the ground that the principal counsel was out of the
country and due to return on the first week of June. The court granted the motion and
reset the hearing to June 8, 1990.
[4]

[5]

On June 8, 1990, petitioner failed to appear. On oral motion of private respondent,

the court declared petitioner to have waived his right to present evidence and deemed
the case submitted for decision on the basis of the evidence presented.
On June 29, 1990, the trial court rendered judgment declaring the nullity of private
respondents marriage to petitioner and awarding custody of the children to private
respondent. The court ruled:

WHEREFORE, in view of the foregoing, the marriage contracted by Ma. Victoria L.

Tuason and Emilio R. Tuason on June 3, 1972 is declared null and void oh initio on
the ground of psychological incapacity on the part of the defendant under Sec. 36 of
the Family Code. Let herein judgment of annulment be recorded in the registry of
Mandaluyong, Metro Manila where the marriage was contracted and in the registry of
Makati, Metro Manila where the marriage is annulled.
The custody of the two (2) legitimate children of the plaintiff and the defendant is
hereby awarded to the plaintiff.
The foregoing judgment is without prejudice to the application of the other effects of
annulment as provided for under Arts. 50 and 51 of the Family Code of the Philippines.
[6]

Counsel for petitioner received a copy of this decision on August 24, 1990. No
appeal was taken from the decision.
On September 24, 1990, private respondent filed a Motion for Dissolution of
Conjugal Partnership of Gains and Adjudication to Plaintiff of the Conjugal Properties.
Petitioner opposed the motion on October 17, 1990
[7]

[8]

Also on the same day, October 17, 1990, petitioner, through new counsel, filed with
the trial court a petition for relief from judgment of the June 29, 1990 decision.
The trial court denied the petition on August 8, 1991.

[9]

Petitioner appealed before the Court of Appeals the order of the trial court denying
his petition for relief from judgment. On July 29, 1994, the Court of Appeals dismissed
the appeal and affirmed the order of the trial court.
[10]

Hence this petition.

The threshold issue is whether a petition for relief from judgment is warranted under
the circumstances of the case.
We rule in the negative.
A petition for relief from judgment is governed by Rule 38, Section 2 of the Revised
Rules of Court which provides:

Section 2. Petition to Court of First Instance for relief from judgment or other
proceedings thereof. - When a judgment or order is entered, or any other proceeding is
taken, against a party in a court of first instance through fraud, accident, mistake, or
excusable negligence, he may file a petition in such court and in the same cause
praying that the judgment, order or proceeding be set aside.
Under the rules, a final and executory judgment or order of the Regional Trial Court
may be set aside on the ground of fraud, accident, mistake or excusable negligence. In
addition, the petitioner must assert facts showing that he has a good, substantial and
meritorious defense or cause of action. If the petition is granted, the court shall
proceed to hear and determine the case as if a timely motion for new trial had been
granted therein.
[11]

[12]

In the case at bar, the decision annulling petitioners marriage to private respondent
had already become final and executory when petitioner failed to appeal during the
reglementary period. Petitioner however claims that the decision of the trial court was
null and void for violation of his right to due process. He contends he was denied due
process when, after failing to appear on two scheduled hearings, the trial court deemed
him to have waived his right to present evidence and rendered judgment on the basis of
the evidence for private respondent.Petitioner justifies his absence at the hearings on
the ground that he was then confined for medical and/or rehabilitation reasons. In his
affidavit of merit before the trial court, he attached a certification by Lt. Col. Plaridel F.
Vidal, Director of the Narcotics Command, Drug Rehabilitation Center which states that
on March 27, 1990 petitioner was admitted for treatment of drug dependency at the
Drug Rehabilitation Center at Camp Bagong Diwa, Bicutan, Taguig, Metro Manila of the
Philippine Constabulary-Integrated National Police. The records, however, show that
the former counsel of petitioner did not inform the trial court of this confinement. And
when the court rendered its decision, the same counsel was out of the country for which
reason the decision became final and executory as no appeal was taken therefrom.
[13]

[14]

[15]

The failure of petitioners counsel to notify him on time of the adverse judgment to
enable him to appeal therefrom is negligence which is not excusable. Notice sent to
counsel of record is binding upon the client and the neglect or failure of counsel to
inform him of an adverse judgment resulting in the loss of his right to appeal is not a
ground for setting aside a judgment valid and regular on its face.
[16]

Similarly inexcusable was the failure of his former counsel to inform the trial court of
petitioners confinement and medical treatment as the reason for his non-appearance at
the scheduled hearings. Petitioner has not given any reason why his former counsel,

intentionally or unintentionally, did not inform the court of this fact. This led the trial court
to order the case deemed submitted for decision on the basis of the evidence presented
by the private respondent alone. To compound the negligence of petitioners counsel,
the order of the trial court was never assailed via a motion for reconsideration.
Clearly, petitioner cannot now claim that he was deprived of due process. He may
have lost his right to present evidence but he was not denied his day in court. As the
records show, petitioner, through counsel, actively participated in the proceedings
below. He filed his answer to the petition, cross-examined private respondents
witnesses and even submitted his opposition to private respondents motion for
dissolution of the conjugal partnership of gains.
[17]

A petition for relief from judgment is an equitable remedy; it is allowed only in

exceptional cases where there is no other available or adequate remedy. When a party
has another remedy available to him, which may be either a motion for new trial or
appeal from an adverse decision of the trial court, and he was not prevented by fraud,
accident, mistake or excusable negligence from filing such motion or taking such
appeal, he cannot avail himself of this petition. Indeed, relief will not be granted to a
party who seeks avoidance from the effects of the judgment when the loss of the
remedy at law was due to his own negligence; otherwise the petition for relief can be
used to revive the right to appeal which had been lost thru inexcusable negligence.
[18]

[19]

Petitioner also insists that he has a valid and meritorious defense. He cites the
Family Code which provides that in actions for annulment of marriage or legal
separation, the prosecuting officer should intervene for the state because the law looks
with disfavor upon the haphazard declaration of annulment of marriages by default. He
contends that when he failed to appear at the scheduled hearings, the trial court should
have ordered the prosecuting officer to intervene for the state and inquire as to the
reason for his non-appearance.
[20]

Articles 48 and 60 of the Family Code read as follows:

Art. 48. In all cases of annulment or declaration of absolute nullity of marriage, the
Court shall order the prosecution attorney or fiscal assigned to it to appear on behalf
of the State to take steps to prevent collusion between the parties and to take care that
evidence is not fabricated or suppressed.
In the cases referred to in the preceding paragraph, no judgment shall be based upon a
stipulation of facts or confession of judgment.
xxxxxxxxx
Art. 60. No decree of legal separation shall be based upon a stipulation of facts or a
confession of judgment.

In any case, the Court shall order the prosecuting attorney or fiscal assigned to it to
take steps to prevent collusion between the parties and to take care that the evidence is
not fabricated or suppressed.
[21]

A grant of annulment of marriage or legal separation by default is fraught with the

danger of collusion. Hence, in all cases for annulment, declaration of nullity of
marriage and legal separation, the prosecuting attorney or fiscal is ordered to appear on
behalf of the state for the purpose of preventing any collusion between the parties and
to take care that their evidence is not fabricated or suppressed. If the defendant spouse
fails to answer the complaint, the court cannot declare him or her in default but instead,
should order the prosecuting attorney to determine if collusion exists between the
parties. The prosecuting attorney or fiscal may oppose the application for legal
separation or annulment through the presentation of his own evidence, if in his opinion,
the proof adduced is dubious and fabricated. Our Constitution is committed to the
policy of strengthening the family as a basic social institution. Our family law is based
on the policy that marriage is not a mere contract, but a social institution in which the
state is vitally interested. The state can find no stronger anchor than on good, solid and
happy families. The break up of families weakens our social and moral fabric and,
hence, their preservation is not the concern alone of the family members.
[22]

[23]

[24]

[25]

The facts in the case at bar do not call for the strict application of Articles 48 and 60
of the Family Code. For one, petitioner was not declared in default by the trial court for
failure to answer. Petitioner filed his answer to the complaint and contested the cause of
action alleged by private respondent. He actively participated in the proceedings below
by filing several pleadings and cross-examining the witnesses of private respondent. It
is crystal clear that every stage of the litigation was characterized by a no-holds barred
contest and not by collusion.
The role of the prosecuting attorney or fiscal in annulment of marriage and legal
separation proceedings is to determine whether collusion exists between the parties
and to take care that the evidence is not suppressed or fabricated. Petitioners vehement
opposition to the annulment proceedings negates the conclusion that collusion existed
between the parties. There is no allegation by the petitioner that evidence was
suppressed or fabricated by any of the parties. Under these circumstances, we are
convinced that the non-intervention of a prosecuting attorney to assure lack of collusion
between the contending parties is not fatal to the validity of the proceedings in the trial
court.
Petitioner also refutes the testimonies of private respondents witnesses, particularly
Dr. Samuel Wiley and Ms. Adelita Prieto, as biased, incredible and hearsay. Petitioner
alleges that if he were able to present his evidence, he could have testified that he was
not psychologically incapacitated at the time of the marriage as indicated by the fact that
during their first ten years, he and private respondent lived together with their children
as one normal and happy family, that he continued supporting his family even after he
left the conjugal dwelling and that his work as owner and operator of a radio and
television corporation places him in the public eye and makes him a good subject for
malicious gossip linking him with various women. These facts, according to petitioner,
should disprove the ground for annulment of his marriage to petitioner.

Suffice it to state that the finding of the trial court as to the existence or nonexistence of petitioners psychological incapacity at the time of the marriage is final and
binding on us. Petitioner has not sufficiently shown that the trial courts factual findings
and evaluation of the testimonies of private respondents witnesses vis-a-vis petitioners
defenses are clearly and manifestly erroneous.
[26]

[27]

IN VIEW WHEREOF, the petition is denied and the decision dated July 29, 1994 of
the Court of Appeals in CA-G.R. CV No. 37925 is affirmed.
SO ORDERED.
Regalado (Chairman), Romero, and Mendoza, JJ., concur.
Torres, Jr., J., on leave.

[1]

Amended Complaint, Records, pp. 22-30.

[2]

Records, pp. 96-118.

[3]

Exhibits O, and P; Records, pp. 113-118.

[4]

Records, pp. 126-127.

[5]

Id., p. 128.

[6]

Id., pp. 132-133.

[7]

Id., pp. 136-139.

[8]

Id., pp. 143-145. Despite petitioners opposition, the court, on September 9, 1991, granted said motion
and declared the establishment between husband and wife of the regime of complete separation
of property and adjudicated to private respondent the conjugal home and lot on which the
conjugal home stands.

[9]

Id., pp. 215-216.

[10]

CA-G.R. CV No. 37925, Rollo, pp. 33-40.

[11]

Mateo v. Court of Appeals, 196 SCRA 280 [1991]; Torno v. Court of Appeals, 166 SCRA 742 [1988].

[12]

Revised Rules of Court, Rule 39, Section 7.

[13]

Petitioners Reply to Comment, p. 3; Rollo, p. 110.

[14]

Records, pp. 151-152.

[15]

Petitioners Reply to Comment, p. 3; Rollo, p. 110.

[16]

Palanca v. American Food Mfg. Co., 24 SCRA 819 [1968]; Duran v. Pagarigan, 106 Phil. 907 [1960].

[17]

Court of Appeals Decision, p. 6; Rollo, p. 38.

[18]

Somoso v. Court of Appeals, 178 SCRA 654, 660 [1989]; Ibabao v. Intermediate Appellate Court, 150
SCRA 76 [1987]; Rizal Commercial Banking Corporation v. Lood, 110 SCRA 205 [1981].

[19]

Ibabao v. Intermediate Appellate Court, supra, at 86; Manila Electric Co. p. Court of Appeals, 187 SCRA
201 [1990].

[20]

Petition, p. 4; Rollo, p. 15.

[21]

Taken from Articles 88 and 101 of the Civil Code of the Philippines which were also taken from Article
85 of the Old Civil Code.

[22]

Dean Francisco Capistrano, member of the Civil Code Commission, cited in I Francisco, Revised Rules
of Court in the Philippines 1026 [1973].

[23]

Rule 18, Section 6 provides:

Sec. 6. No defaults in actions for annulment of marriage or for legal separation. - If the defendant in an
action for annulment of marriage or for legal separation fails to answer, the court shall order the
prosecuting attorney to investigate whether or not a collusion between the parties exists, and if
there is no collusion, to intervene for the State in order to see to it that the evidence submitted is
not fabricated.
[24]

San Gabriel v. San Gabriel, (CA) 56 O.G. 3555, Nov. 27, 1959.

[25]

Sec. 12, Article II.

[26]

cf. Periquet, Jr. v. Intermediate Appellate Court, 238 SCRA 697, 710 [1994].

[27]

Philippine Bank of Commerce v. Aruego, 102 SCRA 530 [1981]; Bank of the Philippine Islands v. de
Coster, 47 Phil. 594 [1925].
Republic of the Philippines
SUPREME COURT
Manila
EN BANC

G.R. No. L-21438

September 28, 1966

AIR FRANCE, petitioner,

vs.
RAFAEL CARRASCOSO and the HONORABLE COURT OF APPEALS, respondents.
Lichauco, Picazo and Agcaoili for petitioner.
Bengzon Villegas and Zarraga for respondent R. Carrascoso.

SANCHEZ, J.:
The Court of First Instance of Manila 1 sentenced petitioner to pay respondent Rafael Carrascoso P25,000.00 by way
of moral damages; P10,000.00 as exemplary damages; P393.20 representing the difference in fare between first
class and tourist class for the portion of the trip Bangkok-Rome, these various amounts with interest at the legal rate,
from the date of the filing of the complaint until paid; plus P3,000.00 for attorneys' fees; and the costs of suit.
On appeal,2 the Court of Appeals slightly reduced the amount of refund on Carrascoso's plane ticket from P393.20 to
P383.10, and voted to affirm the appealed decision "in all other respects", with costs against petitioner.
The case is now before us for review on certiorari.
The facts declared by the Court of Appeals as " fully supported by the evidence of record", are:
Plaintiff, a civil engineer, was a member of a group of 48 Filipino pilgrims that left Manila for Lourdes on
March 30, 1958.

On March 28, 1958, the defendant, Air France, through its authorized agent, Philippine Air Lines, Inc., issued
to plaintiff a "first class" round trip airplane ticket from Manila to Rome. From Manila to Bangkok, plaintiff
travelled in "first class", but at Bangkok, the Manager of the defendant airline forced plaintiff to vacate the
"first class" seat that he was occupying because, in the words of the witness Ernesto G. Cuento, there was a
"white man", who, the Manager alleged, had a "better right" to the seat. When asked to vacate his "first
class" seat, the plaintiff, as was to be expected, refused, and told defendant's Manager that his seat would
be taken over his dead body; a commotion ensued, and, according to said Ernesto G. Cuento, "many of the
Filipino passengers got nervous in the tourist class; when they found out that Mr. Carrascoso was having a
hot discussion with the white man [manager], they came all across to Mr. Carrascoso and pacified Mr.
Carrascoso to give his seat to the white man" (Transcript, p. 12, Hearing of May 26, 1959); and plaintiff
reluctantly gave his "first class" seat in the plane.3
1. The trust of the relief petitioner now seeks is that we review "all the findings" 4 of respondent Court of Appeals.
Petitioner charges that respondent court failed to make complete findings of fact on all the issues properly laid before
it. We are asked to consider facts favorable to petitioner, and then, to overturn the appellate court's decision.
Coming into focus is the constitutional mandate that "No decision shall be rendered by any court of record without
expressing therein clearly and distinctly the facts and the law on which it is based". 5 This is echoed in the statutory
demand that a judgment determining the merits of the case shall state "clearly and distinctly the facts and the law on
which it is based"; 6 and that "Every decision of the Court of Appeals shall contain complete findings of fact on all
issues properly raised before it". 7
A decision with absolutely nothing to support it is a nullity. It is open to direct attack. 8 The law, however, solely insists
that a decision state the "essential ultimate facts" upon which the court's conclusion is drawn. 9 A court of justice is not
hidebound to write in its decision every bit and piece of evidence 10 presented by one party and the other upon the
issues raised. Neither is it to be burdened with the obligation "to specify in the sentence the facts"which a party
"considered as proved". 11 This is but a part of the mental process from which the Court draws the essential ultimate
facts. A decision is not to be so clogged with details such that prolixity, if not confusion, may result. So long as the
decision of the Court of Appeals contains the necessary facts to warrant its conclusions, it is no error for said court to
withhold therefrom "any specific finding of facts with respect to the evidence for the defense". Because as this Court
well observed, "There is no law that so requires". 12 Indeed, "the mere failure to specify (in the decision) the
contentions of the appellant and the reasons for refusing to believe them is not sufficient to hold the same contrary to
the requirements of the provisions of law and the Constitution". It is in this setting that in Manigque, it was held that
the mere fact that the findings "were based entirely on the evidence for the prosecution without taking into
consideration or even mentioning the appellant's side in the controversy as shown by his own testimony", would not
vitiate the judgment. 13 If the court did not recite in the decision the testimony of each witness for, or each item of
evidence presented by, the defeated party, it does not mean that the court has overlooked such testimony or such
item of evidence. 14 At any rate, the legal presumptions are that official duty has been regularly performed, and that all
the matters within an issue in a case were laid before the court and passed upon by it. 15
Findings of fact, which the Court of Appeals is required to make, maybe defined as "the written statement of the
ultimate facts as found by the court ... and essential to support the decision and judgment rendered thereon". 16They
consist of the court's "conclusions" with respect to the determinative facts in issue". 17 A question of law, upon the
other hand, has been declared as "one which does not call for an examination of the probative value of the evidence
presented by the parties." 18
2. By statute, "only questions of law may be raised" in an appeal by certiorari from a judgment of the Court of
Appeals. 19 That judgment is conclusive as to the facts. It is not appropriately the business of this Court to alter the
facts or to review the questions of fact. 20
With these guideposts, we now face the problem of whether the findings of fact of the Court of Appeals support its
judgment.
3. Was Carrascoso entitled to the first class seat he claims?
It is conceded in all quarters that on March 28, 1958 he paid to and received from petitioner a first class ticket. But
petitioner asserts that said ticket did not represent the true and complete intent and agreement of the parties; that
said respondent knew that he did not have confirmed reservations for first class on any specific flight, although he

had tourist class protection; that, accordingly, the issuance of a first class ticket was no guarantee that he would have
a first class ride, but that such would depend upon the availability of first class seats.
These are matters which petitioner has thoroughly presented and discussed in its brief before the Court of Appeals
under its third assignment of error, which reads: "The trial court erred in finding that plaintiff had confirmed
reservations for, and a right to, first class seats on the "definite" segments of his journey, particularly that from Saigon
to Beirut". 21
And, the Court of Appeals disposed of this contention thus:
Defendant seems to capitalize on the argument that the issuance of a first-class ticket was no guarantee
that the passenger to whom the same had been issued, would be accommodated in the first-class
compartment, for as in the case of plaintiff he had yet to make arrangements upon arrival at every station for
the necessary first-class reservation. We are not impressed by such a reasoning. We cannot understand
how a reputable firm like defendant airplane company could have the indiscretion to give out tickets it never
meant to honor at all. It received the corresponding amount in payment of first-class tickets and yet it
allowed the passenger to be at the mercy of its employees. It is more in keeping with the ordinary course of
business that the company should know whether or riot the tickets it issues are to be honored or not.22
Not that the Court of Appeals is alone. The trial court similarly disposed of petitioner's contention, thus:
On the fact that plaintiff paid for, and was issued a "First class" ticket, there can be no question. Apart from his
testimony, see plaintiff's Exhibits "A", "A-1", "B", "B-1," "B-2", "C" and "C-1", and defendant's own witness, Rafael
Altonaga, confirmed plaintiff's testimony and testified as follows:
Q. In these tickets there are marks "O.K." From what you know, what does this OK mean?
A. That the space is confirmed.
Q. Confirmed for first class?
A. Yes, "first class". (Transcript, p. 169)
xxx

xxx

xxx

Defendant tried to prove by the testimony of its witnesses Luis Zaldariaga and Rafael Altonaga that although plaintiff
paid for, and was issued a "first class" airplane ticket, the ticket was subject to confirmation in Hongkong. The court
cannot give credit to the testimony of said witnesses. Oral evidence cannot prevail over written evidence, and
plaintiff's Exhibits "A", "A-l", "B", "B-l", "C" and "C-1" belie the testimony of said witnesses, and clearly show that the
plaintiff was issued, and paid for, a first class ticket without any reservation whatever.
Furthermore, as hereinabove shown, defendant's own witness Rafael Altonaga testified that the reservation for a "first
class" accommodation for the plaintiff was confirmed. The court cannot believe that after such confirmation defendant
had a verbal understanding with plaintiff that the "first class" ticket issued to him by defendant would be subject to
confirmation in Hongkong. 23
We have heretofore adverted to the fact that except for a slight difference of a few pesos in the amount refunded on
Carrascoso's ticket, the decision of the Court of First Instance was affirmed by the Court of Appeals in all other
respects. We hold the view that such a judgment of affirmance has merged the judgment of the lower court. 24Implicit
in that affirmance is a determination by the Court of Appeals that the proceeding in the Court of First Instance was
free from prejudicial error and "all questions raised by the assignments of error and all questions that might have
been raised are to be regarded as finally adjudicated against the appellant". So also, the judgment affirmed "must be
regarded as free from all error". 25 We reached this policy construction because nothing in the decision of the Court of
Appeals on this point would suggest that its findings of fact are in any way at war with those of the trial court. Nor was
said affirmance by the Court of Appeals upon a ground or grounds different from those which were made the basis of
the conclusions of the trial court. 26

If, as petitioner underscores, a first-class-ticket holder is not entitled to a first class seat, notwithstanding the fact that
seat availability in specific flights is therein confirmed, then an air passenger is placed in the hollow of the hands of an
airline. What security then can a passenger have? It will always be an easy matter for an airline aided by its
employees, to strike out the very stipulations in the ticket, and say that there was a verbal agreement to the contrary.
What if the passenger had a schedule to fulfill? We have long learned that, as a rule, a written document speaks a
uniform language; that spoken word could be notoriously unreliable. If only to achieve stability in the relations
between passenger and air carrier, adherence to the ticket so issued is desirable. Such is the case here. The lower
courts refused to believe the oral evidence intended to defeat the covenants in the ticket.
The foregoing are the considerations which point to the conclusion that there are facts upon which the Court of
Appeals predicated the finding that respondent Carrascoso had a first class ticket and was entitled to a first class seat
at Bangkok, which is a stopover in the Saigon to Beirut leg of the flight. 27 We perceive no "welter of distortions by the
Court of Appeals of petitioner's statement of its position", as charged by petitioner. 28 Nor do we subscribe to
petitioner's accusation that respondent Carrascoso "surreptitiously took a first class seat to provoke an issue". 29 And
this because, as petitioner states, Carrascoso went to see the Manager at his office in Bangkok "to confirm my seat
and because from Saigon I was told again to see the Manager". 30 Why, then, was he allowed to take a first class seat
in the plane at Bangkok, if he had no seat? Or, if another had a better right to the seat?
4. Petitioner assails respondent court's award of moral damages. Petitioner's trenchant claim is that Carrascoso's
action is planted upon breach of contract; that to authorize an award for moral damages there must be an averment
of fraud or bad faith;31 and that the decision of the Court of Appeals fails to make a finding of bad faith. The pivotal
allegations in the complaint bearing on this issue are:
3. That ... plaintiff entered into a contract of air carriage with the Philippine Air Lines for a valuable
consideration, the latter acting as general agents for and in behalf of the defendant, under which said
contract, plaintiff was entitled to, as defendant agreed to furnish plaintiff, First Class passage on defendant's
plane during the entire duration of plaintiff's tour of Europe with Hongkong as starting point up to and until
plaintiff's return trip to Manila, ... .
4. That, during the first two legs of the trip from Hongkong to Saigon and from Saigon to Bangkok, defendant
furnished to the plaintiff First Class accommodation but only after protestations, arguments and/or insistence
were made by the plaintiff with defendant's employees.
5. That finally, defendant failed to provide First Class passage, but instead furnished plaintiff
only TouristClass accommodations from Bangkok to Teheran and/or Casablanca, ... the plaintiff has
been compelled by defendant's employees to leave the First Class accommodation berths at Bangkok after
he was already seated.
6. That consequently, the plaintiff, desiring no repetition of the inconvenience and embarrassments brought
by defendant's breach of contract was forced to take a Pan American World Airways plane on his return trip
from Madrid to Manila.32
xxx

xxx

xxx

2. That likewise, as a result of defendant's failure to furnish First Class accommodations aforesaid, plaintiff suffered
inconveniences, embarrassments, and humiliations, thereby causing plaintiff mental anguish, serious anxiety,
wounded feelings, social humiliation, and the like injury, resulting in moral damages in the amount of P30,000.00. 33
xxx

xxx

xxx

The foregoing, in our opinion, substantially aver: First, That there was a contract to furnish plaintiff a first class
passage covering, amongst others, the Bangkok-Teheran leg; Second, That said contract was breached when
petitioner failed to furnish first class transportation at Bangkok; and Third, that there was bad faith when petitioner's
employee compelled Carrascoso to leave his first class accommodation berth "after he was already, seated" and to
take a seat in the tourist class, by reason of which he suffered inconvenience, embarrassments and humiliations,
thereby causing him mental anguish, serious anxiety, wounded feelings and social humiliation, resulting in moral
damages. It is true that there is no specific mention of the term bad faith in the complaint. But, the inference of bad
faith is there, it may be drawn from the facts and circumstances set forth therein. 34 The contract was averred to
establish the relation between the parties. But the stress of the action is put on wrongful expulsion.

Quite apart from the foregoing is that (a) right the start of the trial, respondent's counsel placed petitioner on guard on
what Carrascoso intended to prove: That while sitting in the plane in Bangkok, Carrascoso was oustedby petitioner's
manager who gave his seat to a white man; 35 and (b) evidence of bad faith in the fulfillment of the contract was
presented without objection on the part of the petitioner. It is, therefore, unnecessary to inquire as to whether or not
there is sufficient averment in the complaint to justify an award for moral damages. Deficiency in the complaint, if any,
was cured by the evidence. An amendment thereof to conform to the evidence is not even required. 36 On the
question of bad faith, the Court of Appeals declared:
That the plaintiff was forced out of his seat in the first class compartment of the plane belonging to the
defendant Air France while at Bangkok, and was transferred to the tourist class not only without his consent
but against his will, has been sufficiently established by plaintiff in his testimony before the court,
corroborated by the corresponding entry made by the purser of the plane in his notebook which notation
reads as follows:
"First-class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene",
and by the testimony of an eye-witness, Ernesto G. Cuento, who was a co-passenger. The captain of the
plane who was asked by the manager of defendant company at Bangkok to intervene even refused to do so.
It is noteworthy that no one on behalf of defendant ever contradicted or denied this evidence for the plaintiff.
It could have been easy for defendant to present its manager at Bangkok to testify at the trial of the case, or
yet to secure his disposition; but defendant did neither. 37
The Court of appeals further stated
Neither is there evidence as to whether or not a prior reservation was made by the white man. Hence, if the
employees of the defendant at Bangkok sold a first-class ticket to him when all the seats had already been
taken, surely the plaintiff should not have been picked out as the one to suffer the consequences and to be
subjected to the humiliation and indignity of being ejected from his seat in the presence of others. Instead of
explaining to the white man the improvidence committed by defendant's employees, the manager adopted
the more drastic step of ousting the plaintiff who was then safely ensconsced in his rightful seat. We are
strengthened in our belief that this probably was what happened there, by the testimony of defendant's
witness Rafael Altonaga who, when asked to explain the meaning of the letters "O.K." appearing on the
tickets of plaintiff, said "that the space is confirmed for first class. Likewise, Zenaida Faustino, another
witness for defendant, who was the chief of the Reservation Office of defendant, testified as follows:
"Q How does the person in the ticket-issuing office know what reservation the passenger has
arranged with you?
A They call us up by phone and ask for the confirmation." (t.s.n., p. 247, June 19, 1959)
In this connection, we quote with approval what the trial Judge has said on this point:
Why did the, using the words of witness Ernesto G. Cuento, "white man" have a "better right" to the
seat occupied by Mr. Carrascoso? The record is silent. The defendant airline did not prove "any
better", nay, any right on the part of the "white man" to the "First class" seat that the plaintiff was
occupying and for which he paid and was issued a corresponding "first class" ticket.
If there was a justified reason for the action of the defendant's Manager in Bangkok, the defendant
could have easily proven it by having taken the testimony of the said Manager by deposition, but
defendant did not do so; the presumption is that evidence willfully suppressed would be adverse if
produced [Sec. 69, par (e), Rules of Court]; and, under the circumstances, the Court is constrained
to find, as it does find, that the Manager of the defendant airline in Bangkok not merely asked but
threatened the plaintiff to throw him out of the plane if he did not give up his "first class" seat
because the said Manager wanted to accommodate, using the words of the witness Ernesto G.
Cuento, the "white man".38

It is really correct to say that the Court of Appeals in the quoted portion first transcribed did not use the term
"bad faith". But can it be doubted that the recital of facts therein points to bad faith? The manager not only
prevented Carrascoso from enjoying his right to a first class seat; worse, he imposed his arbitrary will; he
forcibly ejected him from his seat, made him suffer the humiliation of having to go to the tourist class
compartment - just to give way to another passenger whose right thereto has not been established.
Certainly, this is bad faith. Unless, of course, bad faith has assumed a meaning different from what is
understood in law. For, "bad faith" contemplates a "state of mind affirmatively operating with furtive design or
with some motive of self-interest or will or for ulterior purpose." 39
And if the foregoing were not yet sufficient, there is the express finding of bad faith in the judgment of the
Court of First Instance, thus:
The evidence shows that the defendant violated its contract of transportation with plaintiff in bad
faith, with the aggravating circumstances that defendant's Manager in Bangkok went to the extent
of threatening the plaintiff in the presence of many passengers to have him thrown out of the
airplane to give the "first class" seat that he was occupying to, again using the words of the witness
Ernesto G. Cuento, a "white man" whom he (defendant's Manager) wished to accommodate, and
the defendant has not proven that this "white man" had any "better right" to occupy the "first class"
seat that the plaintiff was occupying, duly paid for, and for which the corresponding "first class"
ticket was issued by the defendant to him.40
5. The responsibility of an employer for the tortious act of its employees need not be essayed. It is well settled in
law. 41 For the willful malevolent act of petitioner's manager, petitioner, his employer, must answer. Article 21 of the
Civil Code says:
ART. 21. Any person who willfully causes loss or injury to another in a manner that is contrary to morals,
good customs or public policy shall compensate the latter for the damage.
In parallel circumstances, we applied the foregoing legal precept; and, we held that upon the provisions of Article
2219 (10), Civil Code, moral damages are recoverable. 42
6. A contract to transport passengers is quite different in kind and degree from any other contractual relation. 43And
this, because of the relation which an air-carrier sustains with the public. Its business is mainly with the travelling
public. It invites people to avail of the comforts and advantages it offers. The contract of air carriage, therefore,
generates a relation attended with a public duty. Neglect or malfeasance of the carrier's employees, naturally, could
give ground for an action for damages.
Passengers do not contract merely for transportation. They have a right to be treated by the carrier's employees with
kindness, respect, courtesy and due consideration. They are entitled to be protected against personal misconduct,
injurious language, indignities and abuses from such employees. So it is, that any rule or discourteous conduct on the
part of employees towards a passenger gives the latter an action for damages against the carrier. 44
Thus, "Where a steamship company 45 had accepted a passenger's check, it was a breach of contract and a tort,
giving a right of action for its agent in the presence of third persons to falsely notify her that the check was worthless
and demand payment under threat of ejection, though the language used was not insulting and she was not
ejected." 46 And this, because, although the relation of passenger and carrier is "contractual both in origin and nature"
nevertheless "the act that breaks the contract may be also a tort". 47 And in another case, "Where a passenger on a
railroad train, when the conductor came to collect his fare tendered him the cash fare to a point where the train was
scheduled not to stop, and told him that as soon as the train reached such point he would pay the cash fare from that
point to destination, there was nothing in the conduct of the passenger which justified the conductor in using insulting
language to him, as by calling him a lunatic," 48 and the Supreme Court of South Carolina there held the carrier liable
for the mental suffering of said passenger.
1awphl.nt

Petitioner's contract with Carrascoso is one attended with public duty. The stress of Carrascoso's action as we have
said, is placed upon his wrongful expulsion. This is a violation of public duty by the petitioner air carrier a case
of quasi-delict. Damages are proper.
7. Petitioner draws our attention to respondent Carrascoso's testimony, thus

Q You mentioned about an attendant. Who is that attendant and purser?

A When we left already that was already in the trip I could not help it. So one of the flight attendants
approached me and requested from me my ticket and I said, What for? and she said, "We will note that you
transferred to the tourist class". I said, "Nothing of that kind. That is tantamount to accepting my transfer."
And I also said, "You are not going to note anything there because I am protesting to this transfer".
Q Was she able to note it?
A No, because I did not give my ticket.
Q About that purser?
A Well, the seats there are so close that you feel uncomfortable and you don't have enough leg room, I
stood up and I went to the pantry that was next to me and the purser was there. He told me, "I have
recorded the incident in my notebook." He read it and translated it to me because it was recorded in
French "First class passenger was forced to go to the tourist class against his will, and that the captain
refused to intervene."
Mr. VALTE
I move to strike out the last part of the testimony of the witness because the best evidence would be the
notes. Your Honor.
COURT
I will allow that as part of his testimony. 49
Petitioner charges that the finding of the Court of Appeals that the purser made an entry in his notebook reading "First
class passenger was forced to go to the tourist class against his will, and that the captain refused to intervene" is
predicated upon evidence [Carrascoso's testimony above] which is incompetent. We do not think so. The subject of
inquiry is not the entry, but the ouster incident. Testimony on the entry does not come within the proscription of the
best evidence rule. Such testimony is admissible. 49a
Besides, from a reading of the transcript just quoted, when the dialogue happened, the impact of the startling
occurrence was still fresh and continued to be felt. The excitement had not as yet died down. Statements then, in this
environment, are admissible as part of the res gestae. 50 For, they grow "out of the nervous excitement and mental
and physical condition of the declarant". 51 The utterance of the purser regarding his entry in the notebook was
spontaneous, and related to the circumstances of the ouster incident. Its trustworthiness has been guaranteed. 52 It
thus escapes the operation of the hearsay rule. It forms part of the res gestae.
At all events, the entry was made outside the Philippines. And, by an employee of petitioner. It would have been an
easy matter for petitioner to have contradicted Carrascoso's testimony. If it were really true that no such entry was
made, the deposition of the purser could have cleared up the matter.
We, therefore, hold that the transcribed testimony of Carrascoso is admissible in evidence.
8. Exemplary damages are well awarded. The Civil Code gives the court ample power to grant exemplary damages
in contracts and quasi- contracts. The only condition is that defendant should have "acted in a wanton, fraudulent,
reckless, oppressive, or malevolent manner." 53 The manner of ejectment of respondent Carrascoso from his first
class seat fits into this legal precept. And this, in addition to moral damages.54
9. The right to attorney's fees is fully established. The grant of exemplary damages justifies a similar judgment for
attorneys' fees. The least that can be said is that the courts below felt that it is but just and equitable that attorneys'
fees be given. 55 We do not intend to break faith with the tradition that discretion well exercised as it was here
should not be disturbed.

10. Questioned as excessive are the amounts decreed by both the trial court and the Court of Appeals, thus:
P25,000.00 as moral damages; P10,000.00, by way of exemplary damages, and P3,000.00 as attorneys' fees. The
task of fixing these amounts is primarily with the trial court. 56 The Court of Appeals did not interfere with the same.
The dictates of good sense suggest that we give our imprimatur thereto. Because, the facts and circumstances point
to the reasonableness thereof.57
On balance, we say that the judgment of the Court of Appeals does not suffer from reversible error. We accordingly
vote to affirm the same. Costs against petitioner. So ordered.
Concepcion, C.J., Reyes, J.B.L., Barrera, Dizon, Regala, Makalintal, Zaldivar and Castro, JJ., concur.
Bengzon, J.P., J., took no part.
Footnotes
1

Civil Case No. 38810, "Rafael Carrascoso, plaintiff, vs. Air France, defendant," R.A., pp. 79-80.

C.A.-G.R. No. 26522-R, "Rafael Carrascoso, plaintiff-appellee, vs. Air France, defendant-appellant."

Appendix A, petitioner's brief, pp 146-147. See also R.A., pp. 66-67.

Petitioner's brief, p. 142.

Section 12, Article VIII, Constitution.

Section 1, Rule 36, Rules of Court. See also Section 2, Rule 120, in reference to judgments in criminal
cases.
6

Sec. 4. Rule 51; Sec. 33(2), Judiciary Act of 1948, as amended.

Edwards vs. McCoy, 22 Phil. 598, 601; Yangco vs. Court of First Instance of Manila, et al., 29 Phil. 183,
191.
8

Braga vs. Millora, 3 Phil. 458, 465.

Id.

10

Aringo vs. Arena 14 Phil. 263, 266; emphasis supplied.

11

Reyes vs. People. 71 Phil. 598, 600.

12

People vs. Manigque 35 O.G., No. 94, pp. 1682, 1683, citing Section 133 of the Code of Civil Procedure
and Section 12, Art. VIII, Constitution, supra.
13

Badger et al. vs. Boyd, 65 S.W. (2d), pp. 601, 610.

14

Section 5, (m) and (o), Rule 131, Rules of Court.

15

In re Good's Estate, 266 P. (2d), pp. 719, 729.

16

Badger et al. vs. Boyd, supra.

17

Goduco vs. Court of Appeals, et al., L-17647, February 28, 1964.

18

Section 2, Rule 45, Rules of Court, formerly Section 2, Rule 46 of the Rules of Court.

19

Medel, et al. vs. Calasanz, et al. L-14835, August 31, 1960; Astraquillo, et al. vs. Javier, et al., L-20034,
January 30, 1965.
20

Petitioner's brief in the Court of Appeals, pp. 82-98.

21

Decision of the Court of Appeals, Appendix A, petitioner's brief, pp. 148-149.

22

R.A., pp. 67, 73.

23

5 B C.J.S., p. 295; 3 Am. Jur. p. 678.

24

3 Am. Jur., pp. 677-678.

25

See Garcia Valdez vs. Seterana Tuason, 40 Phil, 943, 951.

26

Carrascoso's ticket, according to petitioner (brief, pp. 7-8), shows:

27

Segment or leg
1. Manila to Hongkong
2. Hongkong to Saigon
3. Saigon to Beirut

Carrier
PAL
VN(Air Vietnam)
AF(Air France)

Flight No.
300A
693
245

Date of Departure
March 30
March 31
March 31

Petitioner's brief, p. 50; see also id., pp. 37 and 46.

28

Id., p. 103.

29

Ibid., p. 102.

30

Article 2220, Civil Code reads: "Willful injury to property may be a legal ground for awarding moral
damages if the court should find that, under the circumstances, such damages are justly due. The same rule
applies to breaches of contract where the defendant acted fraudulently or in bad faith."
31

R.A., p. 2-4; emphasis supplied.

32

R.A., P. 5; second cause of action.

33

Copeland vs. Dunehoo et al., 138 S.E., 267, 270. See also 25 C.J.S., pp. 758-759; 15 Am. Jur., pp. 766767.
34

Statement of Attorney Villegas for respondent Carrascoso in open court. Respondent's brief, p. 33.

35

Section 5, Rule 10, Rules of Court, in part reads: "SEC. 5. Amendment to conform to or authorize
presentation of evidence.When issues not raised by the pleadings are tried by express or implied consent
of the parties, they shall be treated in all respects, as if they had been raised in the pleadings. Such
amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise
these issues may be made upon motion of any party at any time, even after judgment; but failure so to
amend does not affect the result of the trial of these issues ..."; Co Tiamco vs. Diaz, etc., et al., 75 Phil. 672,
679; J.M. Tuason & Co., Inc., etc. vs. Bolanos, 95 Phil. 106, 110.
36

Decision, Court of Appeals, Appendix A of petitioner's brief, pp. 147-148.

37

Decision of the Court of Appeals, Appendix A of petitioner's brief, pp. 147-151.

38

Words & Phrases, Perm. Ed., Vol. 5, p. 13, citing Warfield Natural Gas Co. vs. Allen, 59 S.W. (2d) 534, 538.

39

R.A., p.74; emphasis supplied.

40

Article 2180, Civil Code.

41

Philippine Refining Co. vs. Garcia, et al., L-21871 and L-21962, September 27, 1966.

42

See Section 4, Chapter 3, Title VIII, Civil Code.

43

4 R.C.L., pp. 1174-1175.

44

An air carrier is a common carrier; and air transportation is similar or analogous to land and water
transportation. Mendoza vs. Philippine Air Lines, Inc., 90 Phil. 836, 841-842.
45

Austro-American S.S. Co. vs. Thomas, 248 F. 231.

46

Id., p. 233.

47

Lipman vs. Atlantic Coast Line R. Co., 93 S.E. 714, 716.

48

Petitioner's brief, pp, 104-105.

49

49a

V Moran, Comments on the Rules of Court, 1963 ed., p. 76.

Section 36, Rule 130, Rules of Court.

50

IV Martin, Rules of Court in the Philippines, 1963 ed., p. 324.

51

Ibid.

52

Article 2232, Civil Code.

53

Article 2229, Civil Code.

54

Article 2208, (1) and (11), Civil Code.

55

Coleongco vs. Claparols, L-18616, March 31, 1964; Corpus vs. Cuaderno, et al., L-23721, March 31, 1965.

56

Cf. Yutuk vs. Manila Electric Company, L-13016, May 31, 1961; Lopez et al. vs. Pan American World
Airways, L-22415, March 30, 1966.
57

Republic of the Philippines

Supreme Court
Baguio City

THIRD DIVISION

PEOPLE OF THE

G.R. No. 168641

PHILIPPINES,
Petitioner,

Present:

YNARES-SANTIAGO, J.,
Chairperson,
AUSTRIA-MARTINEZ,
- versus -

CALLEJO, SR.,
CHICO-NAZARIO, and
NACHURA, JJ.

Promulgated:
CLEMENTE BAUTISTA,
Respondent.

April 27, 2007

x-----------------------------------------------x

DECISION

AUSTRIA-MARTINEZ, J.:

Before us is a Petition for Review on Certiorari filed by the

People of the Philippines assailing the Decision[1] of the Court of
Appeals (CA) dated June 22, 2005 in CA-G.R. SP No. 72784,
reversing the Order of the Regional Trial Court (RTC), Branch 19,
Manila and dismissing the criminal case for slight physical injuries
against respondent on the ground that the offense charged had
already prescribed.

The undisputed facts are as follows.

On June 12, 1999, a dispute arose between respondent and

his co-accused Leonida Bautista, on one hand, and private
complainant Felipe Goyena, Jr., on the other.

Private complainant filed a Complaint with the Office of

the Barangay of Malate, Manila,
but
no
settlement
was
reached. The barangay chairman then issued a Certification to file
action dated August 11, 1999.[2]

On August 16, 1999, private complainant filed with the Office

of the City Prosecutor (OCP) a Complaint for slight physical
injuries against herein respondent and his co-accused. After
conducting
the
preliminary
investigation,
Prosecutor
Jessica Junsay-Ong issued a Joint Resolution dated November 8,
1999 recommending the filing of an Information against herein
respondent. Such recommendation was approved by the City
Prosecutor,
represented
by
First
Assistant
City
Prosecutor Eufrocino A. Sulla, but the date of such approval
cannot be found in the records. The Information was, however,
filed with the Metropolitan Trial Court (MeTC) of Manila, Branch 28
only on June 20, 2000.

Respondent sought the dismissal of the case against him on the ground that by the
time the Information was filed, the 60-day period of prescription from the date of
the commission of the crime, that is, on June 12, 1999 had already
elapsed. The MeTC ruled that the offense had not yet prescribed.
Respondent elevated the issue to the RTC via a Petition for Certiorari, but
the RTC denied said petition and concurred with the opinion of the MeTC.

Respondent then filed a Petition for Certiorari with the CA. On June 22,
2005, the CA rendered its Decision wherein it held that, indeed, the 60-day
prescriptive period was interrupted when the offended party filed a Complaint with
the OCP of Manila on August 16, 1999. Nevertheless, the CA concluded that the
offense had prescribed by the time the Information was filed with the MeTC,
reasoning as follows:

In the case on hand, although the approval of the Joint Resolution of ACP JunsayOng bears no date, it effectively terminated the proceedings at the OCP. Hence,
even if the 10-day period for the CP or ACP Sulla, his designated alter ego, to act

on the resolution is extended up to the utmost limit, it ought not have been taken
as late as the last day of the year 1999. Yet, the information was filed with
the MeTC only on June 20, 2000, or already nearly six (6) months into the next
year. To use once again the language of Article 91 of the RPC, the proceedings
at the CPO was unjustifiably stopped for any reason not imputable to him
(the accused) for a time very much more than the prescriptive period of only
two (2) months. The offense charged had, therefore, already prescribed when
filed with the court on June 20, 2000. x x x[3] (Emphasis supplied)

The dispositive portion of the assailed CA Decision reads as follows:

WHEREFORE, we hereby REVERSE and SET ASIDE the appealed Orders of

both courts below and Criminal Case No. 344030-CR, entitled: People of
the Philippines, Plaintiff, -versus-Clemente Bautista and Leonida Bautista,
Accused, is ordered DISMISSED. Costs de oficio.

SO ORDERED.[4]

Petitioner now comes before this Court seeking the reversal of the foregoing CA
Decision. The Court gives due course to the petition notwithstanding the fact that
petitioner did not file a Motion for Reconsideration of the decision of the CA
before the filing of herein petition. It is not a condition sine qua non for the filing
of a petition for review under Rule 45 of the Rules of Court.[5]

The Court finds merit in the petition.

It is not disputed that the filing of the Complaint with the OCP effectively
interrupted the running of the 60-day prescriptive period for instituting the criminal

action for slight physical injuries. However, the sole issue for resolution in this
case is whether the prescriptive period began to run anew after the investigating
prosecutors recommendation to file the proper criminal information against
respondent was approved by the City Prosecutor.

The answer is in the negative.

Article 91 of the Revised Penal Code provides thus:

Art. 91. Computation of prescription of offenses. - The period of prescription shall

commence to run from the day on which the crime is discovered by the offended
party, the authorities, or their agents, and shall be interrupted by the filing of the
complaint or information, and shall commence to run again when such
proceedings terminate without the accused being convicted or acquitted, or
are unjustifiably stopped for any reason not imputable to him.

The term of prescription shall not run when the offender is absent from
the Philipppine Archipelago. (Emphasis supplied)

The CA and respondent are of the view that upon approval of the investigating
prosecutor's recommendation for the filing of an information against respondent,
the period of prescription began to run again. The Court does not agree. It is a
well-settled rule that the filing of the complaint with the fiscals office suspends the
running of the prescriptive period.[6]
The proceedings against respondent was not terminated upon the City
Prosecutor's approval of the investigating prosecutor's recommendation that an
information be filed with the court. The prescriptive period remains tolled from the
time the complaint was filed with the Office of the Prosecutor until such time that
respondent is either convicted or acquitted by the proper court.

The Office of the Prosecutor miserably incurred some delay in filing the
information but such mistake or negligence should not unduly prejudice the
interests of the State and the offended party. As held in People v. Olarte,[7] it is
unjust to deprive the injured party of the right to obtain vindication on account of
delays that are not under his control. All that the victim of the offense may do on
his part to initiate the prosecution is to file the requisite complaint.[8]

The constitutional right of the accused to a speedy trial cannot be invoked by

the petitioner in the present petition considering that the delay occurred not in the
conduct of preliminary investigation or trial in court but in the filing of the
Information after the City Prosecutor had approved the recommendation of the
investigating prosecutor to file the information.

The Office of the Solicitor General does not offer any explanation as to the
delay in the filing of the information. The Court will not be made as an unwitting
tool in the deprivation of the right of the offended party to vindicate a wrong
purportedly inflicted on him by the mere expediency of a prosecutor not filing the
proper information in due time.

The Court will not tolerate the prosecutors apparent lack of a sense of
urgency in fulfilling their mandate. Under the circumstances, the more appropriate
course of action should be the filing of an administrative disciplinary action against
the erring public officials.

WHEREFORE, the Petition is hereby GRANTED. The Decision of the Court of

Appeals in CA-G.R. SP No. 72784 is hereby REVERSED and SET ASIDE and

the Decision of the Regional Trial Court of Manila in Civil Case No. 02103990 is hereby REINSTATED.

Let the Secretary of the Department of Justice be furnished a copy of herein

Decision for appropriate action against the erring officials.

SO ORDERED.

MA. ALICIA AUSTRIA-MARTINEZ

Associate Justice

WE CONCUR:

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson

ROMEO J. CALLEJO, SR.

Associate Justice

MINITA V. CHICONAZARIO
Associate Justice

ANTONIO EDUARDO B. NACHURA

Associate Justice

ATTESTATION

I attest that the conclusions in the above Decision had been

reached in consultation before the case was assigned to the writer
of the opinion of the Courts Division.

CONSUELO YNARES-SANTIAGO
Associate Justice
Chairperson, Third Division

CERTIFICATION

Pursuant to Section 13, Article VIII of the Constitution, and

the Division Chairpersons Attestation, it is hereby certified that
the conclusions in the above Decision had been reached in
consultation before the case was assigned to the writer of the
opinion of the Courts Division.

REYNATO S. PUNO
Chief Justice

[1]

Penned by Associate Justice Salvador J. Valdez, Jr. (retired) and concurred in by Associate Justices Mariano C.
Del Castillo and Magdangal M. De Leon; rollo, pp. 31-44.

[2]

Section 410 (c), Republic Act No. 7160, otherwise known as Local Government Code provides:
Section 410. (c) Suspension of prescriptive periods of offense While the dispute is under
mediation, conciliation, or arbitration the prescriptive periods for offenses and cause of action
under existing laws shall be interrupted upon filing the complaint with the punong barangay. The
prescriptive periods shall resume upon receipt by the complainant of the complaint or the
certificate of repudiation or of the certification to file action issued by
the lupon orpangkat secretary: Provided, however, That such interruption shall not exceed sixty
(60) days from the filing of the complaint with the punong barangay.

[3]

Rollo, p. 42.

[4]

Id. at 43.

[5]

Almora v. Court of Appeals, 369 Phil. 23, 35 (1999); Commissioner of Internal Revenue v. Hantex Trading Co.,
Inc., G.R. No. 136975, March 31, 2005, 454 SCRA 301, 320.

[6]

Arambulo v. Laqui, Sr., 396 Phil. 914, 923 (2000); Francisco v. Court of Appeals, 207 Phil. 471, 477
(1983); People v. Olarte, 125 Phil. 895, 902 (1967).

[7]

People v. Olarte, id.

[8]

Id.

G.R. No. L-101003 March 24, 1994

PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. JONATHAN
BARLIS Y MERCADO, FERDINAND DOE and EDUARDO DOE,
accused. JONATHAN BARLIS Y MERCADO,Accused-Appellant.
The Solicitor General for plaintiff-appellee.

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Alfredo U. Malabaguio for accused-appellant.

DAVIDE, JR., J.:

On 30 January 1990, Jonathan Barlis, accompanied by his uncle,

Pfc. Patrocinio Mercado of the Northern Police District, surrendered
to
Pfc. Mariano Rivera at the Kamias police station, Quezon City.
Jonathan admitted that he was with the group which was
responsible for the killing on
20 January 1990 of Honorina Ballerda inside her house at No. 30,
Masaya Street, Gulod, Novaliches, Quezon City, and that on the
same occasion, one of his companions, "Buboy" (Eduardo Nining),
took three men's watches while his other companion, Ferdie
(Ferdinand Lopez) took some money which they later divided among
themselves. Thereafter, assisted by Atty. Confesor B. Sansano,
Chairman of the Legal Assistance Office of the IBP-Quezon City
Chapter, Jonathan signed a sworn statement wherein he narrated in
detail how the crime was committed and the extent of his
participation therein.
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On 6 February 1990, an information 1 for robbery with homicide,

docketed as Criminal Case No. Q-40-10283, was filed with the
Regional Trial Court of Quezon City against Jonathan Barlis and his
companions. Its accusatory portion reads as follows:
That on or about the 20th day of January, 1990, in Quezon City,
Metro Manila, Philippines, and within the jurisdiction of this
Honorable Court, the above-named accused, conspiring together,
confederating with and mutually helping one another, with intent to
gain and by means of violence and intimidation against person, did
then and there wilfully, unlawfully and feloniously rob HONORINA
BALLERDA Y CASADA, in the following manner, to wit: on the date
and in the place aforementioned, the said accused pursuant to their
conspiracy went to the house of said complainant-victim and once
inside the house, rob, took and carted away victim's personal
properties, to wit:
One (1) ladies gold necklace worth P1,500.00
One (1) ladies Seiko wrist watch worth P2,000.00
One (1) diamond stone worth P800.00
Cash money in the amount of P3,000.00
Assorted pieces of jewelry of undetermined value

in the total amount of P7,300.00 and assorted pieces of jewelry of

undetermined amount, belonging to HONORINA BALLERDA Y
CASADA, and on the occasion of said Robbery, the said accused
pursuant to their conspiracy, with intent to kill and without any
justifiable cause, attacked, assaulted and employed personal
violence upon the person of HONORINA BALLERDA Y CASADA by
stabbing her on the neck and upper chest, thereby inflicting upon
her serious and mortal wounds which were the direct and immediate
cause of her untimely death, to the damage and prejudice of the
heirs of the said victim in the amount aforementioned and in such
amount as may be awarded to them under the provisions of the
New Civil Code.
The case was assigned to Branch 88 of the said court.

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Trial proceeded against Jonathan Barlis only because the two other
accused remained at large.
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The witnesses presented by the prosecution to establish its case

were Adela Argate, who was the house helper and companion of the
deceased victim, Pfc. Mariano Rivera, Atty. Confesor Sansano, Dr.
Dario Gajardo, and Wilma Ballerda, the victim's daughter.
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Adela Argate testified that at about 9:20 a.m. of 20 January 1990,

Jonathan Barlis and his two other companions entered the house of
Honorina Ballerda with the permission of the latter. Thereafter, while
she was about to cook, Honorina called her and when she turned to
face Honorina, she saw the latter being pushed ("ginigitgit") by
Jonathan and one of his companions. Another companion, who was
carrying an icepick, grabbed her (Adela), gagged and hogtied her,
and brought her inside the bathroom. She observed that the volume
of the radio was increased and that the two untied dogs inside the
house were barking. She was able to free herself and when she
went out of the bathroom, she noticed that Jonathan and his
companions were no longer in the house. She then saw the body of
Honorina sprawled on the floor with her face covered with blood.
She went out of the house and asked their neighbors to call the
police. 2
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She was able to identify Jonathan "because he is tall and had no

hat." His companions were thin and young, but she failed to identify
them because they were always looking down and were hiding
behind Jonathan. 3 She further declared that she lost a wrist watch
and less than P100.00 in cash during the incident. 4
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Pfc. Mariano Rivera testified that he investigated Jonathan who then

voluntarily gave his confession, with the assistance of Atty. Confesor
Sansano of the IBP-Quezon City Chapter, after he was duly apprised
of his constitutional rights in Tagalog. He identified the extrajudicial
confession (Exhibit "B"), which is in the form of a sworn statement
or"salaysay," and the advice to Jonathan of his constitutional rights
(Exhibit "A"). 5 Atty. Sansano's testimony corroborated that of
Rivera. 6 The pertinent part of the extrajudicial confession reads as
follows:
T.3 - Alam mo na ba ngayon ang dahilan kung bakit tayo naririto at
nagbibigay ng salaysay?
S - Dahil ho sa nasangkot ako sa pagnanakaw at pagpatay sa loob
ng bahay ni Aling Nena sa Masaya St. corner Nenita, RP Shooters,
Gulod, Novaliches, Quezon City.
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T.4 - Kailan nangyari ang sinasabi mong iyan? Natatandaan mo pa?

S - A beinte ho ng Enero 1990, mga alas-9:00 ng umaga.

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T.5 - Meron ka bang kasama nang maganap ang pangyayaring iyan?

S - Meron ho, sina FERDIE at BUBOY na mga taga Sta. Lucia din.

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T.6 - Alam mo ba kung anong buong pangalan nina FERDIE at

BUBOY?
S - Si FERDIE ho ay FERDINAND LOPEZ at si BUBOY ay si EDUARDO
NINING.
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T.7 - Ang sabi mo ay nasangkot ka sa pagnanakaw at pagpatay sa

bahay ni Aling Nena, sino naman ang napatay at ninakawan doon?
S - Si Aling Nena ho and napatay doon at ninakawan.

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T.8 - Sino ang pumatay kay Aling Nena?

S - Si FERDIE ho, pinagsasaksak ho ng treskantos.

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T.9 - Nakita mo ba ng sinaksak ni FERDIE si Aling Nena?

S - Oho, marami ho, hindi ko matandaan, pero nakita kong sinaksak
niya sa leeg si Aling NENA.
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T.10 - Ano naman ang dahilan at sinaksak ni FERDIE si Aling NENA?

S - Hoholdapin ho sana namin, pero nanlaban at sumigaw.

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T.11 - Isalaysay mo nga ang buong pangyayari kung paano napatay

si Aling NENA at napagnakawan.
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S - Gipit ho kasi ang girlfriend kong si Cristy at kailangangkailangan niya ang pera kaya ipinasangla sa akin yun kanyang
Crown Video Home Service. Ngayon, dahil ho sa bagong galing ako
sa trangkaso, isinama ko sina FERDIE at BUBOY para salisi kami sa
pagbuhat dahil sa mabigat yung VHS. Pagkakatok namin ay
pinapasok kami ni Aling NENA. Inaalok ko sa kanya na isangla o
ibenta na yung dala naming VHS. Tumanggi siya at wala daw pera.
Yun namang VHS na nakalagay sa dala naming bag ay nakabukas at
nakapatong sa ibabaw ng ref. Nang ayaw niyang tanggapin ay
isinara ko na yung zipper ng bag at bubuhatin ko na. Sinenyasan ko
sina Ferdie na aalis na kami pero bigla na lang pinagsasaksak ni
FERDIE yung matanda. Pumalag pa si Aling Nena at sumigaw
habang sinasaksak ni FERDIE. Hanggang sa bumagsak si Aling
NENA ay pumapalag siya. Nabigla ako. Umakyat ako sa itaas ng
bahay at naghalughog. Sumunod din sa akin si FERDIE at
naghalughog. Wala naman akong nakuha.
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T.12 - Si FERDIE, meron ba siyang nakuha habang naghahalughog

din sa itaas ng bahay?
S - Meron akong nakitang ibinulsa niya na galing sa aparador, hindi
ko lang alam kung ano iyon.
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T.13 - Ano pa ang alam mong nakuha ni FERDIE sa bahay na iyon?

S - Ang alam ko lang ay tatlong relos na panlalaki, isa lang ang

natatandaan ko na SEIKO automatic na stainless, saka mga barya.
Sa tindahan yata niya nakuha iyon dahil si FERDIE ang pumasok sa
tindahan.
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T.14 - Si BUBOY naman, ano ang alam mong ginawa niya.

S - Itinali ho yung katulong at dinala yata sa CR.

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T.15 - Ayon sa salaysay ni REGINO FLORENCIO, yung asawa ng

biktimang si NENA, nawalan din sila ng mga alahas, meron ba
kayong nakuhang mga alahas kina NENA?
S - Wala ho.

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T.16 - Sa tantiya mo, mga gaano kayo katagal sa loob ng bahay

nina NENA nang umagang mangyari iyon?
S - Mga kinse minutos lang ho siguro.

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T.17 - Ang ibig mo bang sabihin, sa buong panahong iyon, wala

kang nakuhang pera o alahas at mamahaling bagay?
S - Wala ho, kasi pagdating namin sa Blumentritt, si FERDIE lang
ang naglabas ng pera. Si Buboy ay inabot sa akin yung tatlong
relos.
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T.18 - Paano naman kayo nakarating sa Blumentritt?

S - Nang paalis na kami ay una-una lang. Una si Buboy, pangalawa
si Ferdie at ako ang huli. Naglakad lang kami hanggang sa sakayan.
Pagdating sa Quirino Highway ay sumakay kaming tatlo sa jeep na
papuntang Blumentritt. Pagdating doon sa may Avenida ay naghatihati na lang kami sa kalye habang naglalakad. Nakaparte kaming
tatlo ng tigpo-four hundred pesos. Naghiwalay na kami at yung
dalawa ay pupunta daw sila sa Alfonso, Cavite. Isinasama nila ako,
pero hindi ako sumama. Tumuloy ako sa bahay ng tiyuhin ko sa
may Grotto. Pero pagkaraan ng may ilang araw ay nagpagala ako sa
Maynila, at bumalik ako sa tiyuhin ko ng January 23, 1990. Hindi
ako mapakali.

xxx xxx xxx

(Signed)
JONATHAN M. BARLIS
Nagsasalaysay?
NILAGDAAN SA HARAP NINA:
(Unsigned) (Unsigned)
1. Cristina A. Lopez 2. Luzviminda M. Barlis

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ASSISTED BY:

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(Signed)
ATTY. CONFESSOR SANSANO
SUBSCRIBED AND SWORN to before me this 30[th] day of January
1990 at Quezon City, Philippines.
(Signed)
ASST. CITY PROSECUTOR
Dr. Dario L. Gajardo, Medico-Legal Officer of the PC/INP Crime
Laboratory Service at Camp Crame, conducted an autopsy on the
body of Honorina Ballerda. He testified that he found thirty-four stab
wounds caused by a pointed instrument, such as an icepick, located
mainly on the neck and front of the body. Sixteen of these stab
wounds were fatal. 7
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Wilma Ballerda testified that in connection with the untimely death

of her mother, she spent P15,900.00 for the funeral services,
P3,900.00 for burial services, which excluded that for the lot, and
P3,725.00 for the mass, flowers, and food during the wake. She
hired the services of a lawyer for P20,000.00. 8
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The witnesses for the defense were accused Jonathan Barlis,

Cristina Lopez, Rizaldy Reyes, Hernando Angeles, Joselito Gatdula,
and the accused's uncle, Pfc. Patrocinio Mercado. The accused's
testimony is summarized by the trial court as follows:

That on January 20, 1990 at around 9 o'clock in the morning,

accused Barlis was on his way to Grotto, San Jose, Bulacan when he
met his co-accused Ferdinand Lopez and Eduardo Nining; that the
two requested him to accompany them to Ballerda's place in order
to pawn their VHS to the latter; that he accompanied them but
immediately went to Bulacan after talking to Honorina Ballerda at
the latter's store and when said Ballerda allowed the two to enter
her house; that he did not stay long at Grotto, San Jose, Bulacan
and went back to Novaliches; that he learned, upon reaching home,
that police authorities are looking for him; that since he does not
know what to do, he went back to Bulacan and stayed there until
January 30, 1990 when police officers, one of whom is his uncle
(Pfc. Patrocinio Mercado), went thereat and fetch him to act as a
witness against Ferdinand Lopez and Eduardo Nining; that he
actually aided police operatives in tracking them although said
Lopez was able to escape from the police officers; that he was
brought to the Quezon City Police Station where he was investigated
and told to sign a paper (his salaysay), that he signed the same
since Pfc. Mariano Rivera was in a hurry to get a lawyer; that they
(accused Barlis and Pfc. Rivera) went to the office of a lawyer who
signed the document without asking any question from him; that he
was brought back to the police station where he was detained. 9
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Cristina Lopez, Jonathan's girlfriend, testified that she and

Jonathan's mother accompanied Jonathan when he surrendered to
the police in Quezon City and when he was brought to the Office of
the IBP-Quezon City Chapter. However, she and Jonathan's mother
were not allowed to go inside the said Office. 10
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Rizaldy Reyes, Hernando Angeles, and Joselito Gatdula tried to

corroborate Jonathan's alibi. Rizaldy claimed that he and Jonathan
were on board the same passenger jeepney when he went to work
at about 9:00 a.m. on 20 January 1990. Jonathan told him that he
was going to Grotto, San Jose, Bulacan. 11 Hernando declared that
he only saw Ferdinand Lopez and Eduardo Nining coming out from
the house of Honorina Ballerda at about 9:00 a.m. to 9:20 a.m. of
the said date. 12 Joselito testified that he and Jonathan were on the
same passenger jeepney bound for Grotto, San Jose, Bulacan,
before 9:30 a.m. of that date. 13
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Pfc. Patrocinio Mercado, Jonathan's uncle and a member of the

Quezon City Police, testified that on 30 January 1990, he and
Jonathan's mother went to Grotto, San Jose, Bulacan, to see
Jonathan. The latter told him of his intention to surrender because
he is innocent. They brought Jonathan to the Quezon City Police
Station where an investigator helped Jonathan to be a witness in
the case. He was not with Jonathan inside the investigation room.
After the investigation, he discovered that Jonathan had executed a
sworn statement and had been included in the charge. He asked
Jonathan if he was assisted by a lawyer when he executed the
sworn statement to which Jonathan answered that he was. 14
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On 4 April 1991, the trial court promulgated its decision 15 finding

Jonathan Barlis guilty beyond reasonable doubt of the crime of
robbery with homicide and sentencing him "to suffer the penalty
of RECLUSION PERPETUA . . . to pay the heirs of Honorina Ballerda
the amount of Fifty Thousand Pesos (P50,000.00) by virtue of the
former's death and Ten Thousand Pesos (P10,000.00) by way of
moral damages" and to restore to the victim's heirs one lady's gold
necklace, one Seiko wrist watch, one diamond stone, or their
equivalent value of P4,300.00 if restoration cannot be done, and
cash worth P3,000.00.16
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The trial court found that there was a conspiracy among Jonathan
and his companions in the commission of the crime and convicted
the former on the basis of the circumstantial evidence and his
extrajudicial confession, thus:
While the prosecution did not show any real evidence to establish
the killing of the victim and the taking of personal properties at her
residence, nonetheless, the attending circumstances of the instant
case are indicative of accused['s] participation in the commission of
the offense charge[d]. There is no dispute that movables were lost
and the victim died of stab wounds on January 20, 1990. Such
occurrence transpired after accused went inside the house of
Ballerda, gagged their victim and tied Adela Argate. These facts are
conclusive upon him since he did not advance any denial. His
defense of alibi cannot prevail over his positive identification by
Argate.
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The acts of gagging their victims, tying and carrying Argate to the
bathroom, and increasing the volume of the radio manifest a clear
case of conspiracy. For this purpose, the Honorable Supreme Court
held that:
Direct proof is not essential to establish conspiracy. Since by its
nature, conspiracy is planned in utmost secrecy, it can rarely be
proved by direct evidence. Consequently, the presence and
concurrence of minds which is involved in conspiracy, may be
inferred from proof of facts and circumstances which, taken
together, apparently indicate that they are merely parts of some
complete whole.
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If it is proved that two or more persons aimed by their acts towards

the accomplishment of the same unlawful object, each doing a part
so that their acts, though apparently independent were in fact
connected and cooperative, indicating closeness of personal
association and concurrence of sentiment, a conspiracy may be
inferred though no actual meeting among them to concert means is
proved. That would be termed as implied conspiracy. (Orodio v. CA,
September 13, 1988, GR 57519).
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Accused likewise questions the admissibility of his "salaysay" by

proving that the same was executed by him without the assistance
of counsel. Testimonies to this effect lack credence. His uncle and
his own witness, Pfc. Patrocinio Mercado, admitted that such
"salaysay" was taken regularly and with the constitutional requisite
of assistance [of] counsel. While the constitutional presumption of
innocence should be upheld, such presumption cannot rise above
the regularity in the performance of police duties and lawyer's
function when the latter evidence is strong. 17
Jonathan Barlis (hereinafter appellant) appealed the judgment to
this Court. In his brief, he contends that the trial court erred:
1. . . . IN NOT CONSIDERING THE DEFENSE OF ALIBI RAISED BY
THE ACCUSED.
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2. . . . IN GIVING CREDENCE TO THE STATEMENT (EXHIBIT "B") OF

THE ACCUSED.
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3. . . . IN ADJUDGING THE ACCUSED AS CIVILLY LIABLE.

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4. . . . IN CONVICTING THE ACCUSED JONATHAN BARLIS OF THE

CRIME OF ROBBERY WITH HOMICIDE. 18
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We shall take up these assigned errors seriatim.

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In the first assignment of error, the appellant asserts that the trial
court erred in rejecting his strongly corroborated alibi and in
convicting him on the basis of the weak circumstantial evidence of
the prosecution. He argues that even the trial court recognized the
weakness of the prosecution's evidence when it stated in its decision
that "[w]hile the prosecution did not show any real evidence to
establish the killing of the victim and the taking of personal
properties at her residence, nonetheless, the attending
circumstances of the instant case are indicative of accused['s]
participation in the commission of the offense charge[d]." He also
assails the credibility of Adela Argate whose statements on the
identity of the malefactors before the police which investigated the
crime in the afternoon of 20 January 1990 (Exhibit "2") 19 were
inconsistent with her declaration given in court and who could not
have seen the malefactors because, as she testified, the house was
dark. Finally, he attacks the "seeming suppression of evidence by
the prosecution when it did not present in evidence Exhibit "2."
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The appellant's defense of alibi was rightly rejected by the trial

court not only because it was belied by his sworn statement (Exhibit
"B") but also because he was positively identified by Adela Argate.
The appellant admitted in his sworn statement that he was one of
three persons who entered the house of Honorina with the intention
of robbing her although he denied that he killed
her; 20 that after the victim was killed, he searched the house for
things which he could take with him but was unsuccessful; however,
his companion, Ferdie, took three men's watches. He also admitted
that they divided the loot among themselves and each of them got
P400.00 in cash. 21
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Adela Argate positively identified the appellant as one of the three

persons who entered the house of the victim. Contrary to the
appellant's claim, there was sufficient illumination inside the house

when they entered it. The lights were turned off by the appellant
and his companions only after they consummated the crime and
before they left the house. 22 She also identified him as one of two
persons who pushed ("ginigitgit") the victim. We have ruled time
and again that alibi is a weak defense and cannot prevail over the
positive identification of the accused. 23
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The appellant's claim that the prosecution suppressed evidence is

without merit. It was not necessary for the prosecution to present
Adela Argate's statement before the police authorities since Adela
Argate was herself presented as a witness and the prosecution had
explained that it opted not to present such statement because the
same was not sworn to before any officer authorized to administer
oaths. 24 Moreover, the defense had access to a copy of such
statement and even marked it as its Exhibit "2." The presumption
that evidence willfully suppressed would be adverse if
produced 25 does not apply where the evidence is available to the
accused. 26 Furthermore, the defense did not comply with Section
13, Rule 132 of the Rules of Court 27 in attempting to impeach
Adela's credibility by evidence of a prior inconsistent statement
(Exhibit "2"). In this case, while Adela was cross-examined by the
counsel for the appellant, she was never confronted regarding her
alleged inconsistent statements in
Exhibit "2".
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In his second assignment of error, the appellant contends that the

trial court erred in giving credence to his sworn statement
or "salaysay" (Exhibit "B") which was taken without the assistance
of a lawyer in violation of Section 12(1), Article 3 of the 1987
Constitution. He alleges that he surrendered to the police only to
help them find the real culprits, that Pfc. Rivera misled him into
signing the sworn statement by telling him not to worry, and that he
was brought to the Office of the IBP-Quezon City Chapter where
Atty. Sansano signed the document without conferring with him.
Furthermore, he questions the fact that the names of his girlfriend,
Cristina Lopez, and his mother, Luzviminda Barlis, appear as
witnesses in Exhibit "B-1" although they had not signed it.
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We are not persuaded. It was the appellant's uncle who surrendered

him to Pfc. Rivera, his uncle's colleague. Before he was questioned,
he was duly informed and advised in Tagalog, a language he speaks
and understands, of his constitutional rights to remain silent and to
have a competent and independent counsel, preferably of his own
choice. 28 He voluntarily agreed to be assisted by no less than the
Chairman of the Legal Aid Assistance Office of the IBP-Quezon City
Chapter, Atty. Confesor Sansano. The latter affirmed in court that he
assisted the appellant during the investigation. A lawyer is an officer
of the court and upon his shoulders lies the responsibility to see to it
that protection has been accorded the rights of the accused and that
no injustice to him has been committed. 29 He has in his favor the
presumption of regularity in the performance of his duties. This
presumption was not rebutted in this case. With the presence of
Atty. Sansano, we believe that the rights of the appellant were duly
protected.
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The failure of the mother and the girlfriend of the appellant to sign
as witnesses to the taking of his sworn statement is of no moment
for the Constitution does not require the presence of witnesses
during custodial investigation. What is required is the assistance of
counsel, which can even be waived. As held in People vs.
Layuso, 30 what is sought to be protected by the Constitution is the
compulsory disclosure of incriminating facts. The right is guaranteed
merely to preclude the slightest coercion as would lead the accused
to admit something false, not to prevent him from freely and
voluntarily telling the truth.
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The last two assigned errors, being interrelated, shall be discussed

jointly.
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The information alleged that the appellant took one ladies' gold
necklace, one ladies' Seiko watch, one diamond stone worth
P800.00, cash in the amount of P3,000.00, and assorted pieces of
jewelry of undetermined value, "all belonging to the victim."
However, the only evidence of such taking is the appellant's sworn
statement wherein he admitted that his companions took three
men's watches and about P1,200.00 in cash which they divided
among themselves. Adela Argate, for her part, testified that she lost

one ladies' watch and less than P100.00 in cash. The Office of the
Solicitor General in the Brief for the Appellee agrees with the
appellant that it was an error for the trial court to order the
restitution of (a) one ladies' gold necklace, (b) one Seiko wrist
watch, (c) one diamond stone and (d) cash in the amount of
P3,000.00, since there was no proof of loss thereof. It maintains,
however, that it was proved that witness Adela Argate lost her wrist
watch and cash of less than P100.00, which fact was not disputed
by the appellant; hence, "the element of unlawful taking of property
was amply established." 31
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To sustain a conviction for the crime of robbery with homicide, it is

necessary that the robbery itself be proved as conclusively as any
other essential element of the crime. 32The taking with intent to
gain of personal property belonging to another, by means of
violence against or intimidation of any person, or using force upon
things are the essential elements of robbery. 33 There is robbery
with homicide when by reason or on occasion of a robbery with the
use of violence against or intimidation of person, the crime of
homicide shall have been committed. 34
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As shown above, the only evidence of the taking of the personal

property of the victim is the extrajudicial confession of the
appellant. Under Section 3, Rule 133 of the Rules of Court, "an
extrajudicial confession made by an accused shall not be sufficient
ground for conviction, unless corroborated by evidence of corpus
delicti." Corpus delicti is the body (material substance) upon which
a crime has been committed, e.g., the corpse of a murdered man or
the charred remains of a house burned down. In a derivative sense,
it means the substantial fact that a crime was committed. 35 It is
made up of two elements:
(a) that a certain result has been proved, for example, a man has
died or a building has been burned; and (b) that some person is
criminally responsible for the act. 36 Section 3, Rule 133 does not
mean that every element of the crime charged must be clearly
established by independent evidence apart from the confession. It
means merely that there should be some evidence tending to show
the commission of the crime apart from the confession. Otherwise,
utility of the confession as a species of proof would vanish if it were

necessary, in addition to the confession, to adduce other evidence

sufficient to justify conviction independently of such
confession. 37 Otherwise stated, the other evidence need not,
independently of the confession, establish the corpus delicti beyond
a reasonable doubt. 38
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The prosecution failed to corroborate the extrajudicial confession of

the appellant on the robbery with evidence of corpus delicti. In
short, the robbery was not conclusively proved. The instant case
should be distinguished from People vs. Mones. 39 In Mones, the
four accused who were charged with robbery with homicide
executed separate confessions of the crime charged. Their
confessions were also corroborated by the testimony of a witness.
We held therein:
[W]here the accusation of robbery fails, but multiple homicide or
murder is proved, the accused must be sentenced for the several
separate offenses of homicide or murder (U.S. vs. Lahoylahoy and
Madanlog, 38 Phil., 330); and in this case, if the proof should be
held insufficient as to the robbery, the result would be, under the
Revised Penal Code, that each of the accused would be sentenced
for the four murders committed by them. In view of this fact we are
constrained to sustain the conviction for robbery with homicide,
upon the concurrent confessions of each of the four accused to the
effect that robbery was the purpose of the crime and that P100 in
money were taken from the trunk of Manuel Mico. As to the moral
basis of this fact we entertain no doubt whatever, although there is
no independent evidence, apart from the confessions that robbery
was committed. In thus sustaining the trial court in its finding of
robbery we do not wish to be understood as declaring that this
appreciation could prevail if the prosecution consisted of a charge of
robbery only, or if the conclusion reached were in fact unfavorable
to the accused. 40
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In Mones, the conviction of the four accused for robbery with

homicide is sustainable under the doctrine of interlocking
confessions: "extra-judicial confessions independently made without
collusion which are identical with each other in their essential details
and are corroborated by other evidence on record are admissible, as

circumstantial evidence, against the person implicated to show the

probability of the latter's actual participation in the commission of
the crime." 41 Clearly, the doctrine is inapplicable here for we only
have the solitary confession of the appellant.
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The Office of the Solicitor General, as earlier observed, concedes

that there was no proof of robbery. It argues, however, that such is
not fatal because the unrebutted fact remains that Adela Argate lost
a wrist watch and cash of less than P100.00 on the occasion of the
robbery. We cannot sustain this proposition because of the rule
enumerated in United States vs. Lahoylahoy, 42 to wit:
To permit a defendant to be convicted upon a charge of robbing one
person when the proof shows that he robbed an entirely different
person, when the first was not present, is violative of the
rudimentary principles of pleading; and in addition, is subject to the
criticism that the defendant is thereby placed in a position where he
could not be protected from a future prosecution by a plea of former
conviction or acquittal. If we should convict or acquit these
defendants to-day of the robbery which is alleged to have been
committed upon the property of Roman Estriba, it is perfectly clear
that they could be prosecuted tomorrow for robbery committed
upon the property of Juana; and the plea of former jeopardy would
be of no avail.
The death of the victim has been sufficiently established by
evidence independent of the appellant's extrajudicial confession,
namely, the unrebutted testimonies of prosecution witnesses Adela
Argate, Dr. Dario Gajardo, and Wilma Ballerda.
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Finally, we agree with the trial court that the conspiracy among the
appellant and his two companions was proved beyond reasonable
doubt by circumstantial evidence.
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Since the alleged robbery was not conclusively proved in this case,
the appellant could only be convicted of homicide under Article 249
of the Revised Penal Code. The penalty prescribed therefor
is reclusion temporal.
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The aggravating circumstance of dwelling 43 was proved in this case

and may be appreciated against the appellant. This is offset,
however, by the mitigating circumstance of voluntary
surrender. 44 The applicable period of reclusion temporal is therefore
the medium period or fourteen (14) years, eight (8) months and
one (1) day to seventeen (17) years and four (4) months. 45 Since
he is entitled to the benefits of the Indeterminate Sentence
Law, 46 the penalty to be imposed upon him shall be one whose
minimum shall be within the range of prision mayor and whose
maximum shall be within the range of the prescribed penalty taking
into account the modifying circumstances. 47
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The award of moral damages in the amount of P10,000.00 is proper

under Article 2206(3) of the Civil Code considering that Wilma
Ballerda, the only child of the victim, testified that she was shocked
and could not sleep for several nights when she learned of her
mother's death. 48
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WHEREFORE, the appealed decision is MODIFIED as follows:

appellant JONATHAN BARLIS Y MERCADO is hereby found guilty
beyond reasonable doubt of the crime of Homicide under Article 249
of the Revised Penal Code, and, applying the Indeterminate
Sentence Law, is hereby sentenced to suffer an indeterminate
penalty ranging from ten (10) years ofprision mayor as minimum to
sixteen (16) years of reclusion temporal as maximum. The appellant
is ordered to pay the heirs of Honorina Ballerda the sum of
P50,000.00 as indemnity and P10,000.00 as moral damages. Costs
against the appellant.
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SO ORDERED.
Cruz, Bellosillo, Quiason and Kapunan, JJ., concur.
Endnotes:

1 Original Records (OR), 1-2; Rollo, 3-4.

2 TSN, 15 March 1990, 5-8.
3 Id., 5-6.

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4 Id., 10.

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5 TSN, 19 March 1990, 4-5.

6 TSN, 22 March 1990, 5.

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7 TSN, 24 July 1990, 5-7.

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8 TSN, 31 July 1990, 5-10.

9 OR, 172-173.

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10 TSN, 17 August 1990, 3-4.

11 TSN, 20 August 1990, 2.
12 TSN, 20 August 1990, 8.
13 TSN, 22 August 1990, 3.

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14 Id., 5-6.

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15 OR, 171-175. Per Judge Tirso D.C. Velasco.

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16 OR, 174-175.
17 OR, 173-174.

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18 Rollo, 62.

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19 OR, 139-140.

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20 "T.10 - Ano naman ang dahilan at sinaksak ni FERDIE si Aling NENA?

S - Hoholdapin ho sana namin, pero nanlaban at sumigaw."
21 Exhibit "B-1," T.18.

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22 TSN, 15 March 1990, 8.

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23 People vs. Lee, 204 SCRA 900 [1991]; People vs. Devaras, 205 SCRA 676 [1992]; People vs. De la Cruz, 207 SCRA 632
[1992]; People vs. Florida, 214 SCRA 227 [1992].
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24 TSN, 22 August 1990, 7.

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25 Section 3(e), Rule 131, Rules of Court.

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26 People vs. Casinillo, 213 SCRA 777 [1992].

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27 Said section reads: "Sec. 13. How witness impeached by evidence of inconsistent statements. - Before a witness can be
impeached by evidence that he has made at other times statements inconsistent with his present testimony, the
statements must be related to him, with the circumstances of the times and places and the persons present, and he must
be asked whether he made such statements, and if so, allowed to explain them. If the statements be in writing they must
be shown to the witness before any question is put to him concerning them."
28 Section 12(1), Article III, 1987 Constitution.

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29 People vs. Alvarez, 201 SCRA 364 [1991].

30 175 SCRA 47 [1989].

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31 Rollo, 152.

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32 People vs. Martinado, 214 SCRA 712 [1992]; People vs. De la Cruz, 217 SCRA 283 [1993].
33 Article 293, Revised Penal Code.

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34 Article 294(1), Id.

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35 BLACK'S LAW DICTIONARY 310 (5th ed. 1979).

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36 7 (Part 2) VICENTE J. FRANCISCO, THE REVISED RULES OF COURT, 694 (1973 ed.).

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37 People vs. Bantagan, 54 Phil. 834 [1930]. See also, People vs. Mones, 58 Phil. 46 [1933].
38 FRANCISCO, op. cit., 699.
39 Supra at footnote no. 37.

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40 Id. at 59.

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41 People vs. Molleda, 86 SCRA 667, 701 [1978].

42 38 Phil. 330, 334-335 [1918].

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43 Article 14(3), Revised Penal Code.

44 Article 13(7), Id.

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45 Article 64(4), in relation to Article 77, Id. See 1 RAMON C. AQUINO, THE REVISED PENAL CODE, 712 (1987 ed.).
46 Act No. 4103, as amended.

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47 Article 61(3), Revised Penal Code.

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48 TSN, 31 July 1990, 7.

Republic of the Philippines

SUPREME COURT
Manila
FIRST DIVISION
G.R. No. 85215 July 7, 1989
THE PEOPLE OF THE PHILIPPINES, petitioner,
vs.
HON. JUDGE RUBEN AYSON, Presiding over Branch 6, Regional Trial Court, First Judicial Region, Baguio
City, and FELIPE RAMOS, respondents.
Nelson Lidua for private respondent.

NARVASA, J.:
What has given rise to the controversy at bar is the equation by the respondent Judge of the right of an individual not
to "be compelled to be a witness against himself" accorded by Section 20, Article III of the Constitution, with the right
of any person "under investigation for the commission of an offense . . . to remain silent and to counsel, and to be
informed of such right," granted by the same provision. The relevant facts are not disputed.
Private respondent Felipe Ramos was a ticket freight clerk of the Philippine Airlines (PAL), assigned at its Baguio City
station. It having allegedly come to light that he was involved in irregularities in the sales of plane tickets, 1 the PAL

management notified him of an investigation to be conducted into the matter of February 9, 1986. That
investigation was scheduled in accordance with PAL's Code of Conduct and Discipline, and the Collective
Bargaining Agreement signed by it with the Philippine Airlines Employees' Association (PALEA) to which
Ramos pertained. 2
On the day before the investigation, February 8,1986, Ramos gave to his superiors a handwritten notes 3 reading as

follows:
2-8-86
TO WHOM IT MAY CONCERN:
THE UNDERSIGNED WOULD LIKE TO STATE THAT HE IS WILLING TO SETTLE
IRREGULARITIES ALLEGEDLY CHARGED VS. HIM IN THE AMT. OF P 76,000 (APPROX.)
SUBJECT TO CONDITIONS AS MAY BE IMPOSED BY PAL ON OR BEFORE 1700/9 FEB 86.
(s) Felipe
Ramos
(Printed)
F. Ramos
At the investigation of February 9, 1986, conducted by the PAL Branch Manager in Baguio City, Edgardo R. Cruz, in
the presence of Station Agent Antonio Ocampo, Ticket Freight Clerk Rodolfo Quitasol, and PALEA Shop Steward
Cristeta Domingo, Felipe Ramos was informed "of the finding of the Audit Team." Thereafter, his answers in response
to questions by Cruz, were taken down in writing. Ramos' answers were to the effect inter alia that he had not indeed
made disclosure of the tickets mentioned in the Audit Team's findings, that the proceeds had been "misused" by him,
that although he had planned on paying back the money, he had been prevented from doing so, "perhaps (by)
shame," that he was still willing to settle his obligation, and proferred a "compromise x x to pay on staggered basis,
(and) the amount would be known in the next investigation;" that he desired the next investigation to be at the same
place, "Baguio CTO," and that he should be represented therein by "Shop stewardees ITR Nieves Blanco;" and that
he was willing to sign his statement (as he in fact afterwards did). 4 How the investigation turned out is not dealt

with the parties at all; but it would seem that no compromise agreement was reached much less
consummated.
About two (2) months later, an information was filed against Felipe Ramos charging him with the crime of estafa
allegedly committed in Baguio City during the period from March 12, 1986 to January 29, 1987. In that place and
during that time, according to the indictment, 5 he (Ramos)

.. with unfaithfulness and/or abuse of confidence, did then and there willfully ... defraud the
Philippine Airlines, Inc., Baguio Branch, ... in the following manner, to wit: said accused ... having
been entrusted with and received in trust fare tickets of passengers for one-way trip and round-trip
in the total amount of P76,700.65, with the express obligation to remit all the proceeds of the sale,
account for it and/or to return those unsold, ... once in possession thereof and instead of complying
with his obligation, with intent to defraud, did then and there ... misappropriate, misapply and
convert the value of the tickets in the sum of P76,700.65 and in spite of repeated demands, ...
failed and refused to make good his obligation, to the damage and prejudice of the offended party ..
.
On arraignment on this charge, Felipe Ramos entered a plea of "Not Guilty," and trial thereafter ensued. The
prosecution of the case was undertaken by lawyers of PAL under the direction and supervision of the Fiscal.
At the close of the people's case, the private prosecutors made a written offer of evidence dated June 21,
1988, 6which included "the (above mentioned) statement of accused Felipe J. Ramos taken on February 9,

1986 at PAL Baguio City Ticket Office," which had been marked as Exhibit A, as well as his "handwritten
admission x x given on February 8, 1986," also above referred to, which had been marked as Exhibit K.
The defendant's attorneys filed "Objections/Comments to Plaintiff s Evidence." 7 Particularly as regards the

peoples' Exhibit A, the objection was that "said document, which appears to be a confession, was taken
without the accused being represented by a lawyer." Exhibit K was objected to "for the same reasons
interposed under Exhibits 'A' and 'J.'
By Order dated August 9, 1988, 8 the respondent judge admitted all the exhibits "as part of the testimony of

the witnesses who testified in connection therewith and for whatever they are worth," except Exhibits A
and K, which it rejected. His Honor declared Exhibit A "inadmissible in evidence, it appearing that it is the
statement of accused Felipe Ramos taken on February 9, 1986 at PAL Baguio City Ticket Office, in an
investigation conducted by the Branch Manager x x since it does not appear that the accused was
reminded of this constitutional rights to remain silent and to have counsel, and that when he waived the
same and gave his statement, it was with the assistance actually of a counsel." He also declared
inadmissible "Exhibit K, the handwritten admission made by accused Felipe J. Ramos, given on February
8, 1986 x x for the same reason stated in the exclusion of Exhibit 'A' since it does not appear that the
accused was assisted by counsel when he made said admission."
The private prosecutors filed a motion for reconsideration. 9 It was denied, by Order dated September 14,

1988. 10 In justification of said Order, respondent Judge invoked this Court's rulings in Morales, Jr. v. Juan
Ponce Enrile, et al., 121 SCRA 538, People v. Galit, 135 SCRA 467, People. v. Sison, 142 SCRA 219,
and People v. Decierdo, 149 SCRA 496, among others, to the effect that "in custodial investigations the
right to counsel may be waived but the waiver shall not be valid unless made with the assistance of
counsel," and the explicit precept in the present Constitution that the rights in custodial investigation
"cannot be waived except in writing and in the presence of counsel." He pointed out that the investigation
of Felipe Ramos at the PAL Baguio Station was one "for the offense of allegedly misappropriating the
proceeds of the tickets issued to him' and therefore clearly fell "within the coverage of the constitutional
provisions;" and the fact that Ramos was not detained at the time, or the investigation was administrative
in character could not operate to except the case "from the ambit of the constitutional provision cited."
These Orders, of August 9, 1988 and September 14, 1988 are now assailed in the petition for certiorari and
prohibition at bar, filed in this Court by the private prosecutors in the name of the People of the Philippines. By
Resolution dated October 26, 1988, the Court required Judge Ayson and Felipe Ramos to comment on the petition,
and directed issuance of a "TEMPORARY RESTRAINING ORDER . . . ENJOINING the respondents from proceeding

further with the trial and/or hearing of Criminal Case No. 3488-R (People ... vs. Felipe Ramos), including the issuance
of any order, decision or judgment in the aforesaid case or on any matter in relation to the same case, now pending
before the Regional Trial Court of Baguio City, Br. 6, First Judicial Region." The Court also subsequently required the
Solicitor General to comment on the petition. The comments of Judge Ayson, Felipe Ramos, and the Solicitor
General have all been filed. The Solicitor General has made common cause with the petitioner and prays "that the
petition be given due course and thereafter judgment be rendered setting aside respondent Judge's Orders . . . and
ordering him to admit Exhibits 'A' and 'K' of the prosecution." The Solicitor General has thereby removed whatever
impropriety might have attended the institution of the instant action in the name of the People of the Philippines by
lawyers de parte of the offended party in the criminal action in question.
The Court deems that there has been full ventilation of the issue of whether or not it was grave abuse of discretion
for respondent Judge to have excluded the People's Exhibits A and K. It will now proceed to resolve it.

to which respondent Judge has

given a construction that is disputed by the People. The section reads as follows:
At the core of the controversy is Section 20, Article IV of the 1973 Constitution,

11

SEC. 20. No person shall be compelled to be a witness against himself Any person under
investigation for the commission of an offense shall have the right to remain silent and to counsel,
and to be informed of such right. No force, violence, threat, intimidation, or any other means which
vitiates the free will shall be used against him. Any confession obtained in violation of this section
shall be inadmissible in evidence.
It should at once be apparent that there are two (2) rights, or sets of rights, dealt with in the section, namely:
1) the right against self-incrimination i.e., the right of a person not to be compelled to be a
witness against himself set out in the first sentence, which is a verbatim reproduction of Section
18, Article III of the 1935 Constitution, and is similar to that accorded by the Fifth Amendment of the
American Constitution, 12 and
2) the rights of a person in custodial interrogation, i.e., the rights of every suspect "under
investigation for the commission of an offense."
Parenthetically, the 1987 Constitution indicates much more clearly the individuality and disparateness of these rights.
It has placed the rights in separate sections. The right against self- incrimination, "No person shall be compelled to be
a witness against himself," is now embodied in Section 17, Article III of the 1987 Constitution. The lights of a person
in custodial interrogation, which have been made more explicit, are now contained in Section 12 of the same Article
III. 13
Right Against Self-Incrimination
The first right, against self-incrimination, mentioned in Section 20, Article IV of the 1973 Constitution, is accorded to
every person who gives evidence, whether voluntarily or under compulsion of subpoena, in any civil, criminal, or
administrative proceeding. 14 The right is NOT to "be compelled to be a witness against himself"
The precept set out in that first sentence has a settled meaning. 15 It prescribes an "option of refusal to answer

incriminating questions and not a prohibition of inquiry." 16 It simply secures to a witness, whether he be a
party or not, the right to refue to answer any particular incriminatory question, i.e., one the answer to
which has a tendency to incriminate him for some crime. However, the right can be claimed only when the
specific question, incriminatory in character, is actually put to the witness. It cannot be claimed at any
other time. It does not give a witness the right to disregard a subpoena, to decline to appear before the
court at the time appointed, or to refuse to testify altogether. The witness receiving a subpoena must obey

it, appear as required, take the stand, be sworn and answer questions. It is only when a particular
question is addressed to him, the answer to which may incriminate him for some offense, that he may
refuse to answer on the strength of the constitutional guaranty.
That first sentence of Section 20, Article IV of the 1973 Constitution does not impose on the judge, or other officer
presiding over a trial, hearing or investigation, any affirmative obligation to advise a witness of his right against selfincrimination. It is a right that a witness knows or should know, in accordance with the well known axiom that every
one is presumed to know the law, that ignorance of the law excuses no one. Furthermore, in the very nature of things,
neither the judge nor the witness can be expected to know in advance the character or effect of a question to be put
to the latter. 17
The right against self-incrimination is not self- executing or automatically operational. It must be claimed. If not
claimed by or in behalf of the witness, the protection does not come into play. It follows that the right may be waived,
expressly, or impliedly, as by a failure to claim it at the appropriate time. 18
Rights in Custodial Interrogation
Section 20, Article IV of the 1973 Constitution also treats of a second right, or better said, group of rights. These
rights apply to persons "under investigation for the commission of an offense," i.e., "suspects" under investigation by
police authorities; and this is what makes these rights different from that embodied in the first sentence, that against
self-incrimination which, as aforestated, indiscriminately applies to any person testifying in any proceeding, civil,
criminal, or administrative.
This provision granting explicit rights to persons under investigation for an offense was not in the 1935 Constitution. It
is avowedly derived from the decision of the U.S. Supreme Court in Miranda v. Arizona, 19 a decision described as

an "earthquake in the world of law enforcement."

20

Section 20 states that whenever any person is "under investigation for the commission of an offense"-1) he shall have the right to remain silent and to counsel, and to be informed of such right, 21

2) nor force, violence, threat, intimidation, or any other means which vitiates the free will
shall be used against him; 22 and
3) any confession obtained in violation of x x (these rights shall be inadmissible in evidence. 23
In Miranda, Chief Justice Warren summarized the procedural safeguards laid down for a person in police custody, "incustody interrogation" being regarded as the commencement of an adversary proceeding against the suspect.24
He must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used
against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an
attorney one will be appointed for him prior to any questioning if he so desires. Opportunity to exercise those rights
must be afforded to him throughout the interrogation. After such warnings have been given, such opportunity afforded
him, the individual may knowingly and intelligently waive these rights and agree to answer or make a statement. But
unless and until such warnings and waivers are demonstrated by the prosecution at the trial, no evidence obtained as
a result of interrogation can be used against him.
The objective is to prohibit "incommunicado interrogation of individuals in a police-dominated atmosphere, resulting in
self-incriminating statement without full warnings of constitutional rights." 25

The rights above specified, to repeat, exist only in "custodial interrogations," or "in-custody interrogation of accused
persons." 26 And, as this Court has already stated, by custodial interrogation is meant "questioning initiated

by law enforcement officers after a person has been taken into custody or otherwise deprived of his
freedom of action in any significant way." 27 The situation contemplated has also been more precisely
described by this Court." 28
.. . After a person is arrested and his custodial investigation begins a confrontation arises which at
best may be tanned unequal. The detainee is brought to an army camp or police headquarters and
there questioned and "cross-examined" not only by one but as many investigators as may be
necessary to break down his morale. He finds himself in strange and unfamiliar surroundings, and
every person he meets he considers hostile to him. The investigators are well-trained and
seasoned in their work. They employ all the methods and means that experience and study have
taught them to extract the truth, or what may pass for it, out of the detainee. Most detainees are
unlettered and are not aware of their constitutional rights. And even if they were, the intimidating
and coercive presence of the officers of the law in such an atmosphere overwhelms them into
silence. Section 20 of the Bill of Rights seeks to remedy this imbalance.
Not every statement made to the police by a person involved in some crime is within the scope of the constitutional
protection. If not made "under custodial interrogation," or "under investigation for the commission of an offense," the
statement is not protected. Thus, in one case, 29 where a person went to a police precinct and before any sort

of investigation could be initiated, declared that he was giving himself up for the killing of an old woman
because she was threatening to kill him by barang, or witchcraft, this Court ruled that such a statement
was admissible, compliance with the constitutional procedure on custodial interrogation not being exigible
under the circumstances.
Rights of Defendant in Criminal Case
As Regards Giving of Testimony
It is pertinent at this point to inquire whether the rights just discussed, i.e., (1) that against self-incrimination and (2)
those during custodial interrogation apply to persons under preliminary investigation or already charged in court for a
crime.
It seems quite evident that a defendant on trial or under preliminary investigation is not under custodial interrogation.
His interrogation by the police, if any there had been would already have been ended at the time of the filing of the
criminal case in court (or the public prosecutors' office). Hence, with respect to a defendant in a criminal case already
pending in court (or the public prosecutor's office), there is no occasion to speak of his right while under "custodial
interrogation" laid down by the second and subsequent sentences of Section 20, Article IV of the 1973 Constitution,
for the obvious reason that he is no longer under "custodial interrogation."
But unquestionably, the accused in court (or undergoing preliminary investigation before the public prosecutor), in
common with all other persons, possesses the right against self- incrimination set out in the first sentence of Section
20 Article IV of the 1973 Constitution, i.e., the right to refuse to answer a specific incriminatory question at the time
that it is put to him. 30
Additionally, the accused in a criminal case in court has other rights in the matter of giving testimony or refusing to do
so. An accused "occupies a different tier of protection from an ordinary witness." Under the Rules of Court, in all
criminal prosecutions the defendant is entitled among others-

1) to be exempt from being a witness against himself, 31 and 2) to testify as witness in his own behalf; but if he

offers himself as a witness he may be cross-examined as any other witness; however, his neglect or
refusal to be a witness shall not in any manner prejudice or be used against him. 32
The right of the defendant in a criminal case "to be exempt from being a witness against himself' signifies that he
cannot be compelled to testify or produce evidence in the criminal case in which he is the accused, or one of the
accused. He cannot be compelled to do so even by subpoena or other process or order of the Court. He cannot be
required to be a witness either for the prosecution, or for a co-accused, or even for himself. 33 In other words

unlike an ordinary witness (or a party in a civil action) who may be compelled to testify by subpoena,
having only the right to refuse to answer a particular incriminatory question at the time it is put to him-the
defendant in a criminal action can refuse to testify altogether. He can refuse to take the witness stand, be
sworn, answer any question. 34 And, as the law categorically states, "his neglect or refusal to be a witness
shall not in any manner prejudice or be used against him." 35
If he should wish to testify in his own behalf, however, he may do so. This is his right. But if he does testify, then he
"may be cross- examined as any other witness." He may be cross-examined as to any matters stated in his direct
examination, or connected therewith . 36 He may not on cross-examination refuse to answer any question on

the ground that the answer that he will give, or the evidence he will produce, would have a tendency to
incriminate him for the crime with which he is charged.
It must however be made clear that if the defendant in a criminal action be asked a question which might incriminate
him, not for the crime with which he is charged, but for some other crime, distinct from that of which he is accused, he
may decline to answer that specific question, on the strength of the right against self-incrimination granted by the first
sentence of Section 20, Article IV of the 1973 Constitution (now Section 17 of the 1987 Constitution). Thus, assuming
that in a prosecution for murder, the accused should testify in his behalf, he may not on cross-examination refuse to
answer any question on the ground that he might be implicated in that crime of murder; but he may decline to answer
any particular question which might implicate him for a different and distinct offense, say, estafa.
In fine, a person suspected of having committed a crime and subsequently charged with its commission in court, has
the following rights in the matter of his testifying or producing evidence, to wit:
1) BEFORE THE CASE IS FILED IN COURT (or with the public prosecutor, for preliminary
investigation), but after having been taken into custody or otherwise deprived of his liberty in some
significant way, and on being interrogated by the police: the continuing right to remain silent and to
counsel, and to be informed thereof, not to be subjected to force, violence, threat, intimidation or
any other means which vitiates the free will; and to have evidence obtained in violation of these
rights rejected; and
2) AFTER THE CASE IS FILED IN COURT 37
a) to refuse to be a witness;
b) not to have any prejudice whatsoever result to him by such refusal;
c) to testify in his own behalf, subject to cross-examination by the prosecution;
d) WHILE TESTIFYING, to refuse to answer a specific question which tends to
incriminate him for some crime other than that for which he is then prosecuted.
It should by now be abundantly apparent that respondent Judge has misapprehended the nature and import of the
disparate rights set forth in Section 20, Article IV of the 1973 Constitution. He has taken them as applying to the same

juridical situation, equating one with the other. In so doing, he has grossly erred. To be sure, His Honor sought to
substantiate his thesis by arguments he took to be cogent and logical. The thesis was however so far divorced from
the actual and correct state of the constitutional and legal principles involved as to make application of said thesis to
the case before him tantamount to totally unfounded, whimsical or capricious exercise of power. His Orders were thus
rendered with grave abuse of discretion. They should be as they are hereby, annulled and set aside.
It is clear from the undisputed facts of this case that Felipe Ramos was not in any sense under custodial
interrogation, as the term should be properly understood, prior to and during the administrative inquiry into the
discovered irregularities in ticket sales in which he appeared to have had a hand. The constitutional rights of a person
under custodial interrogation under Section 20, Article IV of the 1973 Constitution did not therefore come into play,
were of no relevance to the inquiry. It is also clear, too, that Ramos had voluntarily answered questions posed to him
on the first day of the administrative investigation, February 9, 1986 and agreed that the proceedings should be
recorded, the record having thereafter been marked during the trial of the criminal action subsequently filed against
him as Exhibit A, just as it is obvious that the note (later marked as Exhibit K) that he sent to his superiors on
February 8,1986, the day before the investigation, offering to compromise his liability in the alleged irregularities, was
a free and even spontaneous act on his part. They may not be excluded on the ground that the so-called "Miranda
rights" had not been accorded to Ramos.
His Honor adverts to what he perceives to be the "greater danger x x (of) the violation of the right of any person
against self-incrimination when the investigation is conducted by the complaining parties, complaining companies, or
complaining employers because being interested parties, unlike the police agencies who have no propriety or
pecuniary interest to protect, they may in their over-eagerness or zealousness bear heavily on their hapless suspects,
whether employees or not, to give statements under an atmosphere of moral coercion, undue ascendancy and undue
influence." It suffices to draw attention to the specific and peremptory requirement of the law that disciplinary
sanctions may not be imposed on any employee by his employer until and unless the employee has been accorded
due process, by which is meant that the latter must be informed of the offenses ascribed to him and afforded
adequate time and opportunity to explain his side. The requirement entails the making of statements, oral or written,
by the employee under such administrative investigation in his defense, with opportunity to solicit the assistance of
counsel, or his colleagues and friends. The employee may, of course, refuse to submit any statement at the
investigation, that is his privilege. But if he should opt to do so, in his defense to the accusation against him, it would
be absurd to reject his statements, whether at the administrative investigation, or at a subsequent criminal action
brought against him, because he had not been accorded, prior to his making and presenting them, his "Miranda
rights" (to silence and to counsel and to be informed thereof, etc.) which, to repeat, are relevant only in custodial
investigations. Indeed, it is self-evident that the employee's statements, whether called "position paper," "answer,"
etc., are submitted by him precisely so that they may be admitted and duly considered by the investigating officer or
committee, in negation or mitigation of his liability.
Of course the possibility cannot be discounted that in certain instances the judge's expressed apprehensions may be
realized, that violence or intimidation, undue pressure or influence be brought to bear on an employee under
investigation or for that matter, on a person being interrogated by another whom he has supposedly offended. In
such an event, any admission or confession wrung from the person under interrogation would be inadmissible in
evidence, on proof of the vice or defect vitiating consent, not because of a violation of Section 20, Article IV of the
1973 Constitution, but simply on the general, incontestable proposition that involuntary or coerced statements may
not in justice be received against the makers thereof, and really should not be accorded any evidentiary value at all.
WHEREFORE, the writ of certiorari is granted annulling and setting aside the Orders of the respondent Judge in
Criminal Case No. 3488-R, dated August 9, 1988 and September 14, 1988, and he is hereby ordered to admit in
evidence Exhibits "A" and "K" of the prosecution in said Criminal Case No. 3488-R, and thereafter proceed with the
trial and adjudgment thereof. The temporary restraining order of October 26, 1988 having become functus officio, is
now declared of no further force and effect.
Cruz, Gancayco, Grio-Aquino and Medialdea, JJ., concur.

Footnotes
1 Rollo, P. 21, 34.
2 Id., p. 13.
3 Id., p, 29.
4 Rollo pp. 6, 28.
5 Id., p. 19.
6 Rollo, pp. 8, 21-27.
7 Id., pp. 30-32.
8 Id., pp. 8-9, 33.
9 Id., pp. 34-44.
10 Id., pp. 48-55.
11 The admissions were allegedly made on February 8 and 9, 1986, at which time the 1987
Constitution was not yet in effect, indeed had not yet been conceived or drafted.
12 SEE, e.g., Tanada & Fernando, Constitution of the Phil., Anno., 2d ed., pp. 378-379.
13 The provision reads as follows:
SEC. 12. (1) Any person under investigation for the commission of an offense shall have the right to
be informed of his right to remain silent and to have competent and independent counsel preferably
of his own choice. If the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel. (2) No torture,
force, violence, threat, intimidation, or any other means which vitiate the free will shall be used
against him. Secret detention places, solitary, incommunicado, or other similar forms of detention
are prohibited. (3) Any confession or admission obtained in violation of this or the preceding section
shall be inadmissible in evidence against him. (4) The law shall provide for penal and civil sanctions
for violations of this section as well as compensation to and rehabilitation of victims of torture or
similar practices, and their families.
14 Bermudez v. Castillo, 64 Phil. 483; Gonzales v. Secretary of Labor, 94 Phil. 325; Suarez v.
Tengco, 2 SCRA 71; Pascual v. Board of Medical Examiners, 28 SCRA 344.
15 SEE Chavez v. C.A., 24 SCRA 663; Suarez v. Tengco, supra, 2 SCRA 71; Gonzales v. Secretary
of Labor, supra, 94 Phil. 325, citing Jones on Evidence, Vol. 6, pp. 4926-7.
16 Suarez v. Tengco, supra, at p. 73.
17 SEE Cruz, I.A., Constitutional Law, 1987 ed., p. 275.

18 U.S. v. Molina, 317 U.S., 424; U.S. v. Binayoh, 35 Phil. 23; SEE also Tanada & Fernando, op.
cit., p. 379.
19 384 U.S. 436, 16 L. Ed. 694. 1 0 A.L.R. 3d 974.
20 Peo. v. Duero, 104 SCRA 379.
21 The 1987 Constitution (Sec. 12, ART. III) makes clear that the person's right to "counsel" refers
to "competent and independent counsel preferably of his own choice," that if "the person cannot
afford the services of (such) counsel, he must be provided with one," and, as suggested in Peo. v.
Galit, 135 SCRA 465, that the rights to silence and to counsel "cannot be waived except in writing
and in the presence of counsel' (SEE Cruz, op. cit., p. 282).
22 The 1987 Constitution adds that "Secret detention places, solitary, incommunicado, or other
similar forms of detention are prohibited."
23 The proviso, as now found in the 1987 Constitution, makes inadmissible in evidence any
confession or admission obtained not only in infringement of the rights mentioned (to silence, to
counsel, etc.) but also in violation of Sec. 11, Art. III, to the effect that "Free access to the courts
and quasi-judicial bodies and adequate legal assistance shall not be denied to any person by
reason of poverty." The new charter also requires that "The law shall provide for penal and civil
sanctions for violations of this section as well as compensation to and rehabilitation of victims of
torture or similar practices, and their families."
24 SEE Peo. v. Duero, supra, 104 SCRA 379; Peo. v. Jimenez, 71 SCRA 186; Peo. v. Robles, 104
SCRA 450; Peo. v. Caguioa, 95 SCRA 2.
25 Peo. v. Duero, supra, at p. 388.
26 Peo. v. Duero, supra, at p. 386.
The Solicitor General's Comment, rollo, pp. 95, 102-103, states that the 1971 Constitutional
Convention defined "investigation" as "investigation conducted by the police authorities which will
include investigations conducted by the municipal police, the PC and the NBI and such other police
agencies in our government (Session, November 25,1972)."
27 Peo. V. Caguioa, 95 SCRA 2, 9, quoting Miranda.
The Solicitor General's Comment (rollo, p. 103) states that according to Escobedo v. Illinois, 378
U.S. 478, which preceded Miranda, 384 U.S. 436, "the right to counsel attaches when 'the
investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a
particular suspect. the suspect has been taken into police custody, the police carry out a process of
interrogations that lends itself to eliciting incriminating statements."' The Comment (rollo, p. 108)
also draws attention to Gamboa v. Cruz G.R. No. 56292, June 27, 1988 where this Court declared
that "The right to counsel attaches only upon the start of an investigation, when the police officer
starts to ask questions designed to elicit information and/or confessions or admissions from the
accused."
28 Morales v. Enrile, et al; Moncupa, Jr. v. Enrile, et al., 121 SCRA 538, 553.
29 Peo. v. Taylaran 108 SCRA 373. In this connection, the Solicitor General opines that so-called
"on-the-scene questioning" of citizens by police officers in the fact- finding process are

"undoubtedly admissible," for, as "distinguished from all questioning of a suspect, in x x (such a)

situation the compelling atmosphere inherent in the process of in-custody interrogation is not
necessarily present." According to him, "when investigating crimes, an officer may inquire of
persons not under restraint (Constitutional Law, Klotter/Kanovitz, 4th ed., 1984) x x x and such
general on-the-scene questions are not thought to be accusatory because they lack the compelling
atmosphere inherent in the process of in-custody interrogation' (Civil Rights and Liberties, A.L.
Bonnicksen, 1982 ed.).'
30 See footnotes 2 to 5 and related text, at p. 5, supra.
31 Sec. 1 (e), Rule 115 of the 1964 Rules of Court. The 1985 Rules on Criminal Procedure have
amended the provision to read, 'to be exempt from being compelled to be a witness against
himself.'
32 Sec. 1 (d), Rule 115. The 1985 Rules on Criminal Procedure amended the provision to read: "To
testify as a witness in his own behalf but subject to cross-examination on matters covered by direct
examination. His silence instead of merely his 'neglect or refusal to be a witness shall not in any
manner prejudice him."
33 Chavez v. C.A., supra, 24 SCRA 663.
34 Id., at pp. 677-678, citing; Cabal v. Kapunan, L-19052, Dec. 29, 1962; 21 Am. Jur. 2d., p. 383;
98 C.J.S., p. 265; Wigmore, Evidence, 1961 ed., p. 406; 3 Wharton's Criminal Evidence, llth ed.,
pp. 19591960, all cited in Gupit, Jr., Rules of Criminal Procedure, 1986 ed., p. 240.
35 See People v. Gargoles, 83 SCRA 282.
36 However, as already pointed out, the rule now limits cross-examination of an accused only to
"matters covered by direct examination."
37 Or during preliminary investigation before a Judge or public prosecutor.