Page | 17Human Rights FINALS Cases

1. People Vs. Ochate Gr No. 127154 July 30, 2002 388 Scra 353

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ROLDAN A. OCHATE alias Boy, accused-appellant.

D E C I S I O N

AUSTRIA-MARTINEZ, J.:

On automatic review is the decision of the Regional Trial Court of Sindangan, Zamboanga del Norte (Branch 11) dated September 20, 1996 in Criminal Case No. S-2504 finding accused Roldan A. Ochate guilty beyond reasonable doubt of rape with homicide, sentencing him to suffer the penalty of death and ordering him to indemnify the heirs of the victim the amount of Fifty Thousand Pesos (P50,000.00).

The facts of the case:

Around 5:15 in the afternoon of September 26, 1994, Rowena Albiso and her older brother Roseller were walking together on their way home from school at Tampilisan, Zamboanga del Norte. Upon reaching the house of the barangay captain, which is about twenty (20) meters from their school, Rowena stopped and went to the communal water pump to wash her food container and her slippers. Roseller went home ahead of her sister.[1] On his way home, he passed by the hut of accused Roldan Ochate where he saw the latter in the yard tucking a scythe on his waist.[2] When Roseller arrived home, their father, Romulo, asked for the whereabouts of Rowena. Roseller told Romulo that his sister was not yet home. Romulo then went to meet Rowena. However, he was unable to find her. Romulo and Roseller thereafter went to the house of the accused who is their neighbor but finding no one there, they proceeded to report the incident to barangay councilman and acting barangay captain Crisanto Montano.[3] Montano, in turn, sought the assistance of some of the men in the barangay in order to find Rowena. The search was conducted the whole evening of September 26, 1994 to no avail. It was only around eight oclock the following morning that the group found Rowena in a ricefield about fifty meters from Ochates house.[4] She was already dead. The medico-legal officer who later examined the cadaver reported that the cause of death was hemorrhagic shock due to deep and penetrating incised wounds in the neck and abdomen.[5] Suspecting that Ochate was the culprit, police officers as well as other members of the barangay went to see Ochate at his house but they were not able to find him. It was only on September 29, 1994 that a certain Bienvenido Pantallano, a member of the CAFGU, was able to locate Ochate and he took Ochate in his custody and brought him to the Chief of Police of Tampilisan.[6]

On January 9, 1995, an Information for Rape with Homicide was filed against Ochate, to wit:

The undersigned, Provincial Prosecutor, accuses ROLDAN A. OCHATE @ Boy of the crime of RAPE WITH HOMICIDE, committed as follows:

That, in the afternoon, on or about the 26th day of September, 1994, in the municipality of Tampilisan, Zamboanga del Norte, within the jurisdiction of this Honorable Court, the said accused armed with a scythe, moved by lewd and unchaste design, did then and there willfully, unlawfully and feloniously, by means of force, violence and intimidation, have carnal knowledge with one ROWENA ALBISO, 8 year old child, against her will and without her consent; that in the pursuance of his evil motive and to better accomplish his evil purpose the said accused, did then and there willfully, unlawfully and feloniously attack, assault and hack said ROWENA ALBISO, thereby inflicting upon her injuries on the vital parts of her body which caused her instantaneous death; that as a result of the commission of the crime the heirs of the herein victim suffered the following damages, viz:

a) Indemnity for victims death. . P50,000.00

b) Loss of earning capacity . . . . . . P20,000.00

P70,000.00

CONTRARY TO LAW.[7]

Ochate entered a plea of not guilty.

After trial, the lower court found the accused guilty beyond reasonable doubt of the crime of rape with homicide and meted the penalty of death.

Hence, this automatic review.

Accused-appellant raises the following Assignment of Errors:

I

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED ON ALLEGED INCRIMINATORY CIRCUMSTANTIAL EVIDENCE.

II

THE TRIAL COURT ERRED IN TAKING AGAINST THE ACCUSED VERBAL ADMISSIONS ALLEGEDLY MADE DURING CUSTODIAL INVESTIGATION IN VIOLATION OF HIS RIGHT TO REMAIN SILENT AND TO COUNSEL.

III

THE TRIAL COURT ERRED IN FINDING THE ACCUSED GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF RAPE WITH HOMICIDE.[8]

Appellant contends that he knew nothing about the rape and the killing of Rowena Albiso; that around three oclock in the afternoon of September 26, 1994, he was at his residence, sleeping; that upon waking up at three-thirty in the same afternoon he went to gather tuba then proceeded to his copra drier which is approximately 100 meters from his house; that he went back home at four oclock and later went to sleep at six oclock in the evening; that he did not notice any unusual incident on the night of September 26, 1994; that on September 29, 1994, he was arrested without warrant for reasons he was not aware of; that it was only after he was brought to the public market where he was informed that he was the suspect in the killing of a certain person, the identity of whom he only knew when he was already brought to the municipal building.

As to the first assigned error, we agree with accused-appellant that the trial court erred in convicting him based on circumstantial evidence. The requisites to sustain a conviction of an accused based on circumstantial evidence are: (1) there must be more than one circumstance; (2) the inference must be based on proven facts; and (3) the combination of all circumstances produces a conviction beyond reasonable doubt of the guilt of the accused.[9] And in the appreciation of circumstantial evidence, there are four basic guidelines: (1) it should be acted upon with caution; (2) all the essential facts must be consistent with the hypothesis of guilt; (3) the facts must exclude every other theory but that of guilt; and (4) the facts must establish such a certainty of guilt of the accused as to convince the judgment beyond a reasonable doubt that the accused is the one who committed the offense. [10]

Prosecution evidence established the following circumstances: (1) in the afternoon of September 26, 1994, when the victim was last seen alive by her brother Roseller, appellant was seen near his house located along the road where the victim and Roseller pass on their way home;[11] (2) the road passing through accused-appellants house is the only path coming from the school going to the house of the victims family;[12] (3) appellant was the only person seen by Roseller on his way home;[13] (4) appellant, who was alone at that time, appeared to Roseller as if he was waiting for somebody;[14] (5) upon waking up in the morning of September 27, 1994 and noticing that people in their barangay were gathering and looking for somebody, appellant did not bother to inquire about the reason for such activity;[15] (6) he did not participate in the search for the missing girl;[16] (7) the victims cadaver was found about 50 meters from appellants hut;[17] (8) when he was informed by his wife that the victims cadaver was found near their house, he showed no surprise and he did nothing;[18] (9) on two occasions, when he was informed by the police that someone was killed in their barangay and that he is a suspect in the killing, he did not bother to ask who the victim was.[19]

After a careful review of the entire evidence presented, we find that a combination of the foregoing circumstances is insufficient to convict appellant of rape with homicide. Said circumstances do not lead to a fair and reasonable conclusion that accused-appellant, to the exclusion of all others, is the person guilty of the offense charged. Appellants indifference to the events that happened in their barangay beginning September 26, 1994 up to the time of his arrest on September 29, 1994 may lend support to the suspicion of the barangay and police authorities that he is the author of the crime. But then, mere suspicion, no matter how strong it may be, is not sufficient to sustain conviction.[20] Law and jurisprudence demand proof beyond reasonable doubt before any person may be deprived of his life, liberty, or even property.[21] Enshrined in the Bill of Rights is the right of the accused to be presumed innocent until the contrary is proved, and to overcome the presumption nothing but proof beyond reasonable doubt must be established by the prosecution.[22] The constitutional presumption of innocence requires courts to take a more than casual consideration of every circumstances or doubt proving the innocence of the accused.[23]

In his testimony, Crisanto Montano admitted that accused-appellant was considered a suspect because he did not join the search for the missing girl.[24] Appellant testified that he did not participate in the search because he was busy drying copra.[25] It cannot be contradicted that such passive reaction is susceptible to different interpretations. Indeed, it may be construed as an indication of guilt; but, it may also be interpreted as mere indifference or even downright insensibility.

Moreover, there was no evidence presented to show that after Roseller left his sister to wash her food container and slippers at the communal water pump, appellant was seen with her. Furthermore, the testimony of Roseller that he saw appellant along the road on his way home is not sufficient to support the conclusion that it was appellant who committed the crime. At best, it is mere conjecture or speculation which the Court will not subscribe to.

Jurisprudence instructs that where the circumstances obtaining in a case are capable of two inferences, one of which is consistent with the presumption of innocence while the other may be compatible with the finding of guilt, the court must acquit the accused because the evidence does not fulfill the test of moral certainty and, therefore, is insufficient to support a judgment of conviction.[26]

Doubtless, accused-appellants defenses of alibi and denial are weak. Nevertheless, it is a settled principle in criminal law that a finding of guilt must rest on the strength of the prosecutions own evidence and not on the weakness or absence of evidence for the defense.[27] In the present case, the circumstantial evidence presented by the prosecution is not sufficient to establish the guilt of the accused beyond reasonable doubt.

As to the second assignment of error, we agree with appellant that his confessions to Bienvenido Pantallano, Dr. Henry Cawley, and before the barangay captain may not be used in evidence against him as they are in violation of his constitutional right to remain silent and to counsel while under custodial investigation.

Custodial investigation, as defined in Miranda vs. Arizona[28] is any 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.

Pantallano and Cawley are law enforcement officers, the former being a CAFGU member and the latter, an NBI officer. With respect to Pantallano, accused-appellants confession was made when the former was pointing his gun at the latter;[29] thus, effectively depriving accused-appellant of his freedom of action. On the other hand, accused-appellants confession to Dr. Cawley was made when the former is already under detention.[30] Both Pantallano and Cawley elicited questions that prompted accused-appellant to confess his guilt in the absence of a counsel and without being informed of his constitutional rights. Hence, it is clear that his confessions are inadmissible in evidence having been obtained in violation of the provisions of Section 12, Article III of the 1987 Constitution, to wit:

Section 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 the presence of counsel.

x x x x x x x x x

(3) Any confession or admission obtained in violation of this or Section 17 hereof shall be inadmissible in evidence against him.

x x x x x x x x x.

Likewise, appellants admission of guilt before the barangay captain is inadmissible in evidence. Montano testified that at the time he heard appellant admit that he committed the crime because he was possessed by the devil, it was actually in response to the query of the barangay captain as to why he committed the crime charged. The question and answer transpired in the presence of the chief of police. Appellant had already been singled out as a suspect, arrested, taken into custody and was being investigated by the police.[31] While it is true that the barangay captain is not a police officer or a law enforcement agent, it is clear from the records that he asked his question in the course of police interrogation without the accused-appellant being informed of his rights under the constitution.[32] In People vs. Morada,[33] this Court held that the confession made by the accused-appellant to the barangay captain is inadmissible because it appeared that the conversation between the two was part of the then ongoing police investigation.

The rape and killing of eight-year old Rowena Albiso is beyond question, a dastardly act that every sensible and God-fearing human being abhors. The assault on the child is tragic and we condemn in the strongest possible terms the beastly act committed against her. However, we must uphold the primacy of the presumption of innocence in favor of the accused-appellant when the evidence at hand falls short of the quantum required to support conviction.[34] Here, the prosecution failed to present evidence sufficient to prove the guilt of the accused-appellant beyond reasonable doubt.

WHEREFORE, the decision under automatic review is REVERSED and SET ASIDE, and accused-appellant Roldan A. Ochate alias Boy is hereby ACQUITTED on the ground of reasonable doubt. The Director of the Bureau of Corrections is directed to cause the immediate release of accused-appellant unless he is being lawfully held for another cause, and to inform this Court of the date of his release, or the ground for his continued confinement, within ten (10) days from notice of herein decision.

SO ORDERED.

2. People Vs. Bolanos Gr No. 101808 July 3, 1992 211 Scra 262G.R. No. 101808 July 3, 1992PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.RAMON BOLANOS, accused-appellant.PARAS, J.:This is a review of the decision of the Regional Trial Court of Malolos, Bulacan, Branch 14, under Criminal Case No. 1831-M-90, for "Murder", wherein the accused-appellant, Ramon Bolanos was convicted, as follows:WHEREFORE, judgment is rendered finding the accused guilty beyond reasonable doubt of the Crime of Murder and the Court hereby imposed upon the accused Ramon Bolanos the penalty of Reclusion Perpetua (life imprisonment) and to pay the heirs of the victim P50,000.00 With Costs.SO ORDERED. (Judgment, p. 6)The antecedent facts and circumstances, follow:The evidence for the prosecution consisted of the testimonies of Patrolmen Marcelo J. Fidelino and Francisco Dayao of the Integrated National Police (INP), Balagtas, Bulacan, Calixto Guinsaya, and Dr. Benito Caballero, Medico-Legal Officer of Bocaue, Bulacan and documentary exhibits. The testimonial evidence were after the fact narration of events based on the report regarding the death of the victim, Oscar Pagdalian which was communicated to the Police Station where the two (2) policemen who responded to the incident are assigned and subsequently became witnesses for the prosecution. (Appellant's Brief, p. 2)Patrolmen Rolando Alcantara and Francisco Dayao testified that they proceeded to the scene of the crime of the Marble Supply, Balagtas, Bulacan and upon arrival they saw the deceased Oscar Pagdalian lying on an improvised bed full of blood with stab wounds. They then inquired about the circumstances of the incident and were informed that the deceased was with two (2) companions, on the previous night, one of whom was the accused who had a drinking spree with the deceased and another companion (Claudio Magtibay) till the wee hours of the following morning, June 23, 1990. (Ibid., p. 3)The corroborating testimony of Patrolmen Francisco Dayao, further indicated that when they apprehend the accused-appellant, they found the firearm of the deceased on the chair where the accused was allegedly seated; that they boarded Ramon Bolanos and Claudio Magtibay on the police vehicle and brought them to the police station. In the vehicle where the suspect was riding, "Ramon Bolanos accordingly admitted that he killed the deceased Oscar Pagdalian because he was abusive." (Ibid., p. 4)During the trial, it was clearly established that the alleged oral admission of the appellant was given without the assistance of counsel as it was made while on board the police vehicle on their way to the police station. The specific portion of the decision of the court a quo reads as follows:. . . the police boarded the two, the accused Ramon Bolanos and Claudio Magtibay in their jeep and proceeded to the police station of Balagtas, Bulacan to be investigated, on the way the accused told the police, after he was asked by the police if he killed the victim, that he killed the victim because the victim was abusive; this statement of the accused was considered admissible in evidence against him by the Court because it was given freely and before the investigation.The foregoing circumstances clearly lead to a fair and reasonable conclusion that the accused Ramon Bolanos is guilty of having killed the victim Oscar Pagdalian. (Judgment, p. 6)A Manifestation (in lieu of Appellee's Brief), was filed by the Solicitor General's Office, dated April 2, 1992, with the position that the lower court erred in admitting in evidence the extra-judicial confession of appellant while on board the police patrol jeep. Said office even postulated that: "(A)ssuming that it was given, it was done in violation of appellant's Constitutional right to be informed, to remain silent and to have a counsel of his choice, while already under police custody." (Manifestation, p. 4)Being already under custodial investigation while on board the police patrol jeep on the way to the Police Station where formal investigation may have been conducted, appellant should have been informed of his Constitutional rights under Article III, Section 12 of the 1987 Constitution which explicitly provides:(1) Any person under investigation for the commission of an offense shall have the right to remain silent and to have competent and independent preferably of his own choice. If the person cannot afford the service 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 violation of this section as well as compensation and rehabilitation of victims of torture or similar practices and their families. (Emphasis supplied).Considering the clear requirements of the Constitution with respect to the manner by which confession can be admissible in evidence, and the glaring fact that the alleged confession obtained while on board the police vehicle was the only reason for the conviction, besides appellant's conviction was not proved beyond reasonable doubt, this Court has no recourse but to reverse the subject judgment under review.WHEREFORE, finding that the Constitutional rights of the accused-appellant have been violated, the appellant is ACQUITTED, with costs de oficio.SO ORDERED.Narvasa, C.J., Padilla, Regalado, and Nocon, JJ., concur.

3. People Vs. Tawat Gr No. L-62871 May 25, 1984 129 Scra 431PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FELICITO TAWAT and LEO TAWAT, accused. FELICITO TAWAT, accused whose death sentence is under review. The Solicitor General for plaintiff-appellee. Julian B. San Juan, Jr. for accused.PER CURIAM:This is an automatic review of the decision of the Court of First Instance of Catanduanes, finding Felicito Tawat and Leo Tawat guilty of robbery with triple homicide, sentencing Felicito to death and Leo to an indeterminate penalty within the range of reclusion temporal and ordering them to pay solidarily damages of P32,000 to each set of heirs of the three victims, Bernarda Salvador, Lito Siao and Jose Magdaraog. (Crim. Case No. 927.) Leo did not appeal. In the morning of January 23, 1980, Andrea Magdaraog-Siao and her nephew, Luis Magdaraog, who were residing in the barrio proper of Agban, Baras, Catanduanes, went to her hut located in Sitio Banog, a mountainous portion of Agban. They wanted to find out what happened to her mother, Bernardo da Salvador Magdaraog, 79, and her two grandchildren who were staying with the old woman. The horrible and gory sight, which greeted them, beggars description (Exh. F): Sprawled on the floor of the humble abode, four by two and a half meters, were the dead bodies of Bernarda, Andrea's son Lito Siao, 13, and Luis' brother Jose, 15, bathed in their own blood (Exh. B).Bernarda had six stab wounds in the chest, two stab wounds in the abdomen (one gaping), a hack wound in the forehead, fractures on the left temple, mandible and ribs and a hack wound in the lower left leg, severing the bone with only a thread of skin remaining, or fourteen wounds in all (Exh. A). Lito had eight stab, gaping wounds in the chest, which penetrated his lungs, six stab wounds in the neck, cutting the carotid arteries, and a hack wound in the head, fracturing the skull, fifteen wounds in all (Exh. A-1 and A-3, p. 202, Record). Jose Magdaraog had three stab wounds in the chest which injured his lungs, a hack wound in the occipital region, fracturing the bone, and a stab wound which penetrated his heart, five serious wounds in all (Exh. A-2).Bernarda was prostrate on the floor with her teeth showing. Her waist was slashed. She was naked from the waist down. The cloth-belt, where she kept her money, was missing. Also missing were a pig, four chickens, a mosquito net, three kettles, one frying pan and plates and spoons, all valued at P705. The door of the hut wits destroyed. The belongings were scattered on the floor. There was a black underwear with garter belt marked "Armin" and "No. 7" (Exh. D) which was later proven to have been worn by accused Felicito Tawat. Who were the perpetrators of the dastardly misdeeds? They were Felicito Tawat, 23, and his first cousin, Leo Tawat, 16. At about three o'clock in the afternoon of the following day January 23, 1980, they unexpectedly arrived at the hut of Floro Ogalesco, '"15, an abaca and rattan stripper, in the remote and isolated forest of Sitio Capipian, Barrio Paraiso, San Miguel, Catanduanes,Felicito, in the presence of Leo, confessed to Ogalesco that they were taking refuge in his secluded hut because the night before they had killed at Sitio Banog, Barrio Agban, Baras an old woman and two boys, one of whom was Andrea Siao's son.Felicito recounted that they were drunk. As they passed Siao's hut, a dog barked. Felicito killed the dog. This provoked an old woman to shout at Felicito. He stabbed and killed her. The two boys shouted also. Felicito killed one while Leo killed the other. They took the dead dog, chickens, pork and other belongings in the hut and proceeded to the house of Julio Tawat, father of Leo, in Barrio Agban, and from there they repaired to Capipian. that was the story narrated in court by Ogalesco, linking Felicito and Leo to the robbery with triple homicide committed on the evening of January 22, 1980.The accused's confession to Ogalesco is in part corroborated by the sworn statement of Alejo Tawat, father of Felicito. Alejo declared that at about eight o'clock in the morning of January 23, 1980 he and his brother, Julio (father of Leo), went to their abaca plantation in Sitio Calabiga. He found Felicito and Leo cooking chickens in a kettle. He saw a mosquito net in the hut. A pig had been killed and was about to be cooked. (Nos. 11 and 12, Exh. C.)After Felicito and Leo had finished eating, Alejo and Julio accompanied their sons to the forest of Capipian. Alejo and Julio left them there and returned to Barrio J. M. Alberto, Baras.From his neighbors, Alejo learned that the mother-in-law of Jovito Siao, his son Lito and his wife's nephew Jose were killed and that the pig, blanket, mosquito net, kettle and chickens of Jovito Siao were stolen (Nos. 15-17 and 22-23, Exh. C).Any doubt as to the connection of Felicito with the robbery with triple homicide was removed by the finding at the scene of the crime of black shorts with belt (Exh. D). Luis Magdaraog testified that the shorts were worn by Felicito in the morning of January 22, 1980 (the crime was committed at night) when he gave cigarettes to Felicito and Leo (4 tsn October 8, 1981). Leo in his sworn statement confirmed that the shorts belonged to Felicito (No. 32, Exh. G).Felicito relied on an alibi. He testified that he was in Mercedes, Camarines Norte from 1963 to October 1980. This claim is manifestly false because he was only seven years old in 1963. He finished the sixth grade at Barrio Agban, Baras in 1972 (Exh. I, p. 211, Rollo). His father saw him on January 22, 1980 at Barrio J.M. Alberto, Baras (No. 5, Exh. C; p. 46, Record; 26 tsn Oct. 6, 1982).The trial court concluded that although there was no eyewitness testimony to the perpetration of the crime, nevertheless, the totality of the circumstantial evidence is so overwhelming as to prove Felicito's guilt to a moral certainty.Felicito was not immediately arrested. He, with Nestor Rojo and Jimmy Tarraya, committed another robbery with homicide and frustrated homicide on November 30, 1980 at Barrio Bugao, Bagamanoc, Catanduanes. Felicito stabbed to death with a dagger Jovita Lim, a storekeeper, while a companion got the loot of P110.He was convicted and sentenced to death. This court affirmed the judgment of conviction but commuted the death penalty to reclusion perpetua (People vs. Tawat, G.R. No. 62547, December 21, 1983).In connection with that case, Felicito executed a confession on January 9, 1981 before the chief of police of Bagamanoc, Catanduanes. Incidentally, he stated therein that he wanted to get out of Catanduanes because he was wanted by the police for the killing of three persons in Barrio Agban, Baras. he had hidden himself in the hut of Ogalesco in Capipian, San Miguel. (Nos. 13 and 18, Exh. H-6, p. 163, Record.)Counsel de oficio contends that the trial court erred in relying on that admission of Felicito in his confession which he later repudiated. He argues that the confession during custodial interrogation cannot be admissible in evidence, as held in Morales vs. Ponce Enrile, G. R. No. 61016, April 26, 1983, 121 SCRA 538.That admission was only alluded to in passing by the trial court. It was not the basis for Felicito's conviction in this case. His guilt was predicated on his confession to Ogalesco which was not taken during custodial interrogation. Ogalesco was not a peace officer.While still a teenager, Felicito, who, as already stated, finished the elementary course in 1972, embarked on a criminal career. In 1975, he was charged in the Baras municipal court with theft of two cocks, alimbuyogon and balawon (Exh. J). He pleaded guilty. He was sentenced to 15 days' imprisonment (Exh. J-2). He was suspected of being implicated in a case of murder and frustrated murder committed in December, 1979 in Tigaon, Camarines Sur (Exh. K and HH). As already noted, for another robo con homicidio committed on November 30, 1980 (subsequent to the instant case), he was convicted and the judgment was affirmed in People vs. Tawat, G.R. No. 62547, December 21, 1983, supra, where the death penalty was commuted to reclusion perpetua.The crime in this case may be mitigated by drunkenness but it was aggravated by dwelling, abuse of superiority, despoblado and disregard of sex and old age in the case of the 79-year-old woman victim. The second and third homicides may be also regarded as an additional aggravating circumstance (People vs. Pedroso, L-32997, July 30, 1982, 115 SCRA 599, 609). We agree with the learned trial judge that the guilt of the accused was established beyond reasonable doubt. The testimony of Ogalesco on Felicito's oral confession is competent evidence. "The declaration of an accused expressly acknowledging his guilt of the offense charged, may be given in evidence against him" (Sec. 29, Rule 130, Rules of Court). What Felicito told Ogalesco may in a sense be also regarded as part of the res gestae. The rule is that "any person, otherwise competent as a witness, who heard the confession, is competent to testify as to the substance of what he heard if he heard and understood all of it. An oral confession need not be repeated verbatim, but in such case it must be given in its substance." (23 C.J.S. 196.) "Proof of the contents of an oral extrajudicial confession may be made by the testimony of a person who testifies that he was present, heard, understood, and remembers the substance of the conversation or statement made by the accused." (Underhill's Criminal Evidence, 4th. Ed., Niblack, sec. 278, p. 551.) In U.S. vs. Corrales, 28 Phil. 362, a malversation case, Jose Corrales, clerk of the Court of First Instance, received on June 6, 1913 P321.88 from a man named Melliza as payment of the fine and costs imposed on Melizza. Corrales did not issue any receipt but merely gave Melliza a copy of the judgment of conviction with a note at the bottom: "Multas y costas pagadas". A week later, or on June 13, the auditor examined Corrales' accounts. The sum paid by Melliza was not turned over to him. On June 14, an information for misappropriation was filed against Corrales. In the afternoon of that day, Corrales went to the auditor's house and confessed to him that he placed that amount of P321.88 in the office safe only in the afternoon of June 13 after the auditor's examination. On the witness stand, the accused claimed that the amount .had always been in the drawer for personal funds in his office safe. This testimony was contradicted by the auditor who testified on Corrales' confession that he placed the amount only in the afternoon of June 13. Corrales' counsel assailed the admissibility of the auditor's testimony. It was held that the auditor's testimony was admissible and properly taken into consideration by the trial. court. Judge Graciano P. Gayapa. Jr. acted corrective in imposing the death penalty. In the annals of criminal law, no one deserved the death penalty more than Felicito Tawat. Society must protect itself against a dangerous criminal like him "by taking his life in retribution for his offense and as an example and warning to others". "In these days of rampant criminality, it should have a salutary effect upon the criminally minded to know that the courts do not shirk their disagreeable duty to impose the death penalty in cases where the law so requires" (People vs. Carillo and Raquenio, 85 Phil. 611; 635). Justice Montemayor says: "We have no quarrel with the trial judge or with anyone else, layman or jurist as to the wisdom or folly of the death penalty Today, there are quite a number of people who honestly believe that the supreme penalty is either morally wrong or unwise or ineffective. "However, as long as that penalty remains in the statute books, and as long as our criminal law provides for its imposition in certain cases, it is the duty of judicial officers to respect and apply the law regardless of their private opinions" (People vs. Limaco, 88 Phil. 35,43).WHEREFORE, the trial court's judgment is affirmed with the slight modification that Felicito Tawat is also ordered to pay the heirs of Bernarda Magdaraog the value of the articles taken in the sum of P705. No costs.SO ORDERED. Makasiar, Aquino, Guerrero, Abad Santos, De Castro, Melencio-Herrera, Plana, Escolin and Gutierrez, Jr., JJ., concur.Teehankee, Concepcion, Jr., Relova and De la Fuente, JJ., took no part. Fernando, C.J., votes for the imposition of the penalty of reclusion perpetua, Accordingly, in the absence of the necessary ten votes for the death sentence to be validly imposed, Felicito Tawat is sentenced to reclusion perpetua.

4. People Vs Valdez Gr No. 129296 Sept. 25, 2000 341 Scra 25PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ABE VALDEZ y DELA CRUZ, accused-appellant.D E C I S I O NQUISUMBING, J.:For automatic review is the decision[1] promulgated on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105. It found appellant Abe Valdez y Dela Cruz guilty beyond reasonable doubt for violating Section 9 of the Dangerous Drugs Act of 1972 (R.A. No. 6425), as amended by R.A. No. 7659. He was sentenced to suffer the penalty of death by lethal injection.In an Information dated September 26, 1996, appellant was charged as follows:"That on or about September 25, 1996, at Sitio Bulan, Barangay Sawmill, Municipality of Villaverde, Province of Nueva Vizcaya, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, who was caught in flagrante delicto and without authority of law, did then and there wilfully (sic), unlawfully and feloniously plant, cultivate and culture seven (7) fully grown marijuana plants known as Indian Hemp weighing 2.194 kilos, from which dangerous drugs maybe (sic) manufactured or derived, to the damage and prejudice of the government of the Republic of the Philippines."That the property where the said seven (7) fully grown marijuana plants were planted, cultivated and cultured shall be confiscated and escheated in favor of the government."CONTRARY TO LAW."[2]On November 15, 1996, appellant was arraigned and, with assistance of counsel, pleaded not guilty to the charge. Trial on the merits then ensued.The first witness for the prosecution was SPO3 Marcelo Tipay, a member of the police force of Villaverde, Nueva Vizcaya. He testified that at around 10:15 a.m. of September 24, 1996, he received a tip from an unnamed informer about the presence of a marijuana plantation, allegedly owned by appellant at Sitio Bulan, Ibung, Villaverde, Nueva Vizcaya.[3] The prohibited plants were allegedly planted close to appellant's hut. Police Inspector Alejandro R. Parungao, Chief of Police of Villaverde, Nueva Vizcaya then formed a reaction team from his operatives to verify the report. The team was composed of SPO3 Marcelo M. Tipay, SPO2 Noel V. Libunao, SPO2 Pedro S. Morales, SPO1 Romulo G. Tobias and PO2 Alfelmer I. Balut. Inspector Parungao gave them specific instructions to "uproot said marijuana plants and arrest the cultivator of same.[4]At approximately 5:00 o'clock A.M. the following day, said police team, accompanied by their informer, left for the site where the marijuana plants were allegedly being grown. After a three-hour, uphill trek from the nearest barangay road, the police operatives arrived at the place pinpointed by their informant. The police found appellant alone in his nipa hut. They, then, proceeded to look around the area where appellant had his kaingin and saw seven (7) five-foot high, flowering marijuana plants in two rows, approximately 25 meters from appellant's hut.[5] PO2 Balut asked appellant who owned the prohibited plants and, according to Balut, the latter admitted that they were his.[6] The police uprooted the seven marijuana plants, which weighed 2.194 kilograms.[7] The police took photos of appellant standing beside the cannabis plants.[8] Appellant was then arrested. One of the plants, weighing 1.090 kilograms, was sent to the Philippine National Police Crime Laboratory in Bayombong, Nueva Vizcaya for analysis.[9] Inspector Prevy Fabros Luwis, the Crime Laboratory forensic analyst, testified that upon microscopic examination of said plant, she found cystolitic hairs containing calcium carbonate, a positive indication for marijuana.[10] She next conducted a chemical examination, the results of which confirmed her initial impressions. She found as follows:"SPECIMEN SUBMITTED: Exh "A" - 1.090 grams of uprooted suspected marijuana plant placed inside a white sack with markings.x x x"FINDINGS: Qualitative examination conducted on the above stated specimen gave POSITIVE result to the test for Marijuana, a prohibited drug."[11]The prosecution also presented a certification from the Department of Environment and Natural Resources that the land cultivated by appellant, on which the growing marijuana plants were found, was Lot 3224 of Timberland Block B, which formed part of the Integrated Social Forestry Area in Villaverde, Nueva Vizcaya.[12] This lot was part of the public domain. Appellant was acknowledged in the certification as the occupant of the lot, but no Certificate of Stewardship had yet been issued in his favor.[13]As its sole witness, the defense presented appellant. He testified that at around 10:00 o'clock A.M., September 25, 1996, he was weeding his vegetable farm in Sitio Bulan when he was called by a person whose identity he does not know. He was asked to go with the latter to "see something."[14] This unknown person then brought appellant to the place where the marijuana plants were found, approximately 100 meters away from his nipa hut.[15] Five armed policemen were present and they made him stand in front of the hemp plants. He was then asked if he knew anything about the marijuana growing there. When he denied any knowledge thereof, SPO2 Libunao poked a fist at him and told him to admit ownership of the plants.[16] Appellant was so nervous and afraid that he admitted owning the marijuana.[17]The police then took a photo of him standing in front of one of the marijuana plants. He was then made to uproot five of the cannabis plants, and bring them to his hut, where another photo was taken of him standing next to a bundle of uprooted marijuana plants.[18] The police team then brought him to the police station at Villaverde. On the way, a certain Kiko Pascua, a barangay peace officer of Barangay Sawmill, accompanied the police officers. Pascua, who bore a grudge against him, because of his refusal to participate in the former's illegal logging activities, threatened him to admit owning the marijuana, otherwise he would "be put in a bad situation."[19] At the police headquarters, appellant reiterated that he knew nothing about the marijuana plants seized by the police.[20]On cross-examination, appellant declared that there were ten other houses around the vicinity of his kaingin, the nearest house being 100 meters away.[21] The latter house belonged to one Carlito (Lito) Pascua, an uncle of the barangay peace officer who had a grudge against him. The spot where the marijuana plants were found was located between his house and Carlito Pascua's.[22]The prosecution presented SPO3 Tipay as its rebuttal witness. His testimony was offered to rebut appellant's claim that the marijuana plants were not planted in the lot he was cultivating.[23] Tipay presented a sketch he made,[24] which showed the location of marijuana plants in relation to the old and new nipa huts of appellant, as well as the closest neighbor. According to Tipay, the marijuana plot was located 40 meters away from the old hut of Valdez and 250 meters distant from the hut of Carlito Pascua.[25] Tipay admitted on cross-examination that no surveyor accompanied him when he made the measurements.[26] He further stated that his basis for claiming that appellant was the owner or planter of the seized plants was the information given him by the police informer and the proximity of appellant's hut to the location of said plants.[27]Finding appellant's defense insipid, the trial court held appellant liable as charged for cultivation and ownership of marijuana plants as follows:"WHEREFORE, finding the accused GUILTY beyond reasonable doubt of cultivating marijuana plants punishable under section 9 of the Dangerous Drugs Act of 1972, as amended, accused is hereby sentenced to death by lethal injection. Costs against the accused."SO ORDERED."[28]Appellant assigns the following errors for our consideration:ITHE TRIAL COURT GRAVELY ERRED IN ADMITTING AS EVIDENCE THE SEVEN (7) MARIJUANA PLANTS DESPITE THEIR INADMISSIBILITY BEING PRODUCTS OF AN ILLEGAL SEARCH.IITHE TRIAL COURT GRAVELY ERRED IN CONVICTING APPELLANT OF VIOLATION OF SECTION 9, REPUBLIC ACT NO. 6425 DESPITE THE INADMISSIBILITY OF THE CORPUS DELICTI AND THE FAILURE OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.IIITHE TRIAL COURT GRAVELY ERRED IN IMPOSING THE SUPREME PENALTY OF DEATH UPON APPELLANT DESPITE FAILURE OF THE PROSECUTION TO PROVE THAT THE LAND WHERE THE MARIJUANA PLANTS WERE PLANTED IS A PUBLIC LAND ON THE ASSUMPTION THAT INDEED APPELLANT PLANTED THE SUBJECT MARIJUANA.[29]Simply stated, the issues are:(1) Was the search and seizure of the marijuana plants in the present case lawful?(2) Were the seized plants admissible in evidence against the accused?(3) Has the prosecution proved appellant's guilt beyond reasonable doubt?(4) Is the sentence of death by lethal injection correct?The first and second issues will be jointly discussed because they are interrelated.Appellant contends that there was unlawful search. First, the records show that the law enforcers had more than ample time to secure a search warrant. Second, that the marijuana plants were found in an unfenced lot does not remove appellant from the mantle of protection against unreasonable searches and seizures. He relies on the ruling of the US Supreme Court in Terry v. Ohio, 392 US 1, 20 L. Ed 2d 898, 88 S. Ct. 1868 (1968), to the effect that the protection against unreasonable government intrusion protects people, not places.For the appellee, the Office of the Solicitor General argues that the records clearly show that there was no search made by the police team, in the first place. The OSG points out that the marijuana plants in question were grown in an unfenced lot and as each grew about five (5) feet tall, they were visible from afar, and were, in fact, immediately spotted by the police officers when they reached the site. The seized marijuana plants were, thus, in plain view of the police officers. The instant case must, therefore, be treated as a warrantless lawful search under the "plain view" doctrine.The court a quo upheld the validity of the search and confiscation made by the police team on the finding that:"...It seems there was no need for any search warrant. The policemen went to the plantation site merely to make a verification. When they found the said plants, it was too much to expect them to apply for a search warrant. In view of the remoteness of the plantation site (they had to walk for six hours back and forth) and the dangers lurking in the area if they stayed overnight, they had a valid reason to confiscate the said plants upon discovery without any search warrant. Moreover, the evidence shows that the lot was not legally occupied by the accused and there was no fence which evinced the occupant's desire to keep trespassers out. There was, therefore, no privacy to protect, hence, no search warrant was required."[30]The Constitution[31] lays down the general rule that a search and seizure must be carried on the strength of a judicial warrant. Otherwise, the search and seizure is deemed "unreasonable." Evidence procured on the occasion of an unreasonable search and seizure is deemed tainted for being the proverbial fruit of a poisonous tree and should be excluded.[32] Such evidence shall be inadmissible in evidence for any purpose in any proceeding.[33]In the instant case, there was no search warrant issued by a judge after personal determination of the existence of probable cause. From the declarations of the police officers themselves, it is clear that they had at least one (1) day to obtain a warrant to search appellant's farm. Their informant had revealed his name to them. The place where the cannabis plants were planted was pinpointed. From the information in their possession, they could have convinced a judge that there was probable cause to justify the issuance of a warrant. But they did not. Instead, they uprooted the plants and apprehended the accused on the excuse that the trip was a good six hours and inconvenient to them. We need not underscore that the protection against illegal search and seizure is constitutionally mandated and only under specific instances are searches allowed without warrants.[34] The mantle of protection extended by the Bill of Rights covers both innocent and guilty alike against any form of high-handedness of law enforcers, regardless of the praiseworthiness of their intentions.We find no reason to subscribe to Solicitor General's contention that we apply the "plain view" doctrine. For the doctrine to apply, the following elements must be present:(a) a prior valid intrusion based on the valid warrantless arrest in which the police are legally present in the pursuit of their official duties;(b) the evidence was inadvertently discovered by the police who have the right to be where they are; and(c) the evidence must be immediately apparent; and(d) plain view justified mere seizure of evidence without further search.[35]In the instant case, recall that PO2 Balut testified that they first located the marijuana plants before appellant was arrested without a warrant.[36] Hence, there was no valid warrantless arrest which preceded the search of appellant's premises. Note further that the police team was dispatched to appellant's kaingin precisely to search for and uproot the prohibited flora. The seizure of evidence in "plain view" applies only where the police officer is not searching for evidence against the accused, but inadvertently comes across an incriminating object.[37] Clearly, their discovery of the cannabis plants was not inadvertent. We also note the testimony of SPO2 Tipay that upon arriving at the area, they first had to "look around the area" before they could spot the illegal plants.[38] Patently, the seized marijuana plants were not "immediately apparent" and a "further search" was needed. In sum, the marijuana plants in question were not in "plain view" or "open to eye and hand." The "plain view" doctrine, thus, cannot be made to apply.Nor can we sustain the trial court's conclusion that just because the marijuana plants were found in an unfenced lot, appellant could not invoke the protection afforded by the Charter against unreasonable searches by agents of the State. The right against unreasonable searches and seizures is the immunity of one's person, which includes his residence, his papers, and other possessions.[39] The guarantee refers to "the right of personal security"[40] of the individual. As appellant correctly points out, what is sought to be protected against the State's unlawful intrusion are persons, not places.[41] To conclude otherwise would not only mean swimming against the stream, it would also lead to the absurd logic that for a person to be immune against unreasonable searches and seizures, he must be in his home or office, within a fenced yard or a private place. The Bill of Rights belongs as much to the person in the street as to the individual in the sanctuary of his bedroom.We therefore hold, with respect to the first issue, that the confiscated plants were evidently obtained during an illegal search and seizure. As to the second issue, which involves the admissibility of the marijuana plants as evidence for the prosecution, we find that said plants cannot, as products of an unlawful search and seizure, be used as evidence against appellant. They are fruits of the proverbial poisoned tree. It was, therefore, a reversible error on the part of the court a quo to have admitted and relied upon the seized marijuana plants as evidence to convict appellant.We now proceed to the third issue, which revolves around the sufficiency of the prosecution's evidence to prove appellant's guilt. Having declared the seized marijuana plants inadmissible in evidence against appellant, we must now address the question of whether the remaining evidence for the prosecution suffices to convict appellant?In convicting appellant, the trial court likewise relied on the testimony of the police officers to the effect that appellant admitted ownership of the marijuana when he was asked who planted them. It made the following observation:"It may be true that the admission to the police by the accused that he planted the marijuana plants was made in the absence of any independent and competent counsel. But the accused was not, at the time of police verification; under custodial investigation. His admission is, therefore, admissible in evidence and not violative of the constitutional fiat that admission given during custodial investigation is not admissible if given without any counsel."[42]Appellant now argues that his admission of ownership of the marijuana plants in question cannot be used against him for being violative of his right to counsel during the police investigation. Hence, it was error for the trial court to have relied upon said admission of ownership. He submits that the investigation conducted by the police officers was not a general inquiry, but was meant to elicit information on the ownership of the marijuana plants. Appellant theorizes that since the investigation had narrowed down to him, competent and independent counsel should have assisted him, when the police sought information from him regarding the ownership of the prohibited plants. Appellant claims the presumption of regularity of duty of officers cannot be made to apply to his purported voluntarily confession of ownership of the marijuana plants. Nor can it override his constitutional right to counsel during investigation.The Office of the Solicitor General believes otherwise. The OSG avers that appellant was not yet under custodial investigation when he admitted to the police that he owned the marijuana plants. His right to competent and independent counsel, accordingly, had not yet attached. Moreover, appellants failure to impute any false motive for the police officers to falsely accuse him indicates that the presumption of regularity in the performance of official duties by police officers was not sufficiently rebutted.The Constitution plainly declares that any person under investigation for the commission of an offense shall have the right: (1) to remain silent; (2) to have competent and independent counsel preferably of his own choice; and (3) to be informed of such rights. These rights cannot be waived except in writing and in the presence of counsel.[43] An investigation begins when it is no longer a general inquiry but starts to focus on a particular person as a suspect, i.e., when the police investigator starts interrogating or exacting a confession from the suspect in connection with an alleged offense.[44] The moment the police try to elicit admissions or confessions or even plain information from a person suspected of having committed an offense, he should at that juncture be assisted by counsel, unless he waives the right in writing and in the presence of counsel.[45]In the instant case we find that, from the start, a tipster had furnished the police appellant's name as well as the location of appellant's farm, where the marijuana plants were allegedly being grown. While the police operation was supposedly meant to merely "verify" said information, the police chief had likewise issued instructions to arrest appellant as a suspected marijuana cultivator. Thus, at the time the police talked to appellant in his farm, the latter was already under investigation as a suspect. The questioning by the police was no longer a general inquiry.[46]Under cross-examination, PO2 Balut stated, he "did not yet admit that he is the cultivator of that marijuana so we just asked him and I think there is no need to inform (him of) his constitutional rights because we are just asking him..."[47] In trying to elicit information from appellant, the police was already investigating appellant as a suspect. At this point, he was already under custodial investigation and had a right to counsel even if he had not yet been arrested. Custodial investigation is "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."[48] As a suspect, two armed policemen interrogated appellant. Behind his inquisitors were a barangay peace officer and three other armed policemen.[49] All had been dispatched to arrest him.[50] From these circumstances, we may infer that appellant had already been deprived of his freedom of action in a significant way, even before the actual arrest. Note that even before he was arrested, the police made him incriminatingly pose for photos in front of the marijuana plants.Moreover, we find appellant's extrajudicial confession flawed with respect to its admissibility. For a confession to be admissible, it must satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of competent and independent counsel; (3) it must be express; and (4) it must be in writing.[51] The records show that the admission by appellant was verbal. It was also uncounselled. A verbal admission allegedly made by an accused during the investigation, without the assistance of counsel at the time of his arrest and even before his formal investigation is not only inadmissible for being violative of the right to counsel during criminal investigations, it is also hearsay.[52] Even if the confession or admission were "gospel truth", if it was made without assistance of counsel and without a valid waiver of such assistance, the confession is inadmissible in evidence, regardless of the absence of coercion or even if it had been voluntarily given.[53]

It is fundamental in criminal prosecutions that before an accused may be convicted of a crime, the prosecution must establish by proof beyond reasonable doubt that a crime was committed and that the accused is the author thereof.[54] The evidence arrayed against the accused, however, must not only stand the test of reason,[55] it must likewise be credible and competent.[56] Competent evidence is "generally admissible" evidence.[57] Admissible evidence, in turn, is evidence "of such a character that the court or judge is bound to receive it, that is, allow it to be introduced at trial."[58]In the instant case, the trial court relied on two pieces of probative matter to convict appellant of the offense charged. These were the seized marijuana plants, and appellant's purportedly voluntary confession of ownership of said marijuana plants to the police. Other than these proofs, there was no other evidence presented to link appellant with the offense charged. As earlier discussed, it was error on the trial court's part to have admitted both of these proofs against the accused and to have relied upon said proofs to convict him. For said evidence is doubly tainted.First, as earlier pointed out, the seized marijuana plants were obtained in violation of appellant's constitutional rights against unreasonable searches and seizures. The search and seizure were void ab initio for having been conducted without the requisite judicial warrant. The prosecution's very own evidence clearly establishes that the police had sufficient time to obtain a warrant. There was no showing of such urgency or necessity for the warrantless search or the immediate seizure of the marijuana plants subject of this case. To reiterate, said marijuana plants cannot be utilized to prove appellant's guilt without running afoul of the constitutional guarantees against illegal searches and the inadmissibility of evidence procured pursuant to an unlawful search and seizure.Second, the confession of ownership of the marijuana plants, which appellant allegedly made to the police during investigation, is not only hearsay but also violative of the Bill of Rights. The purported confession was made without the assistance of competent and independent counsel, as mandated by the Charter. Thus, said confession cannot be used to convict appellant without running afoul of the Constitution's requirement that a suspect in a criminal investigation must have the services of competent and independent counsel during such investigation.In sum, both the object evidence and the testimonial evidence as to appellant's voluntary confession of ownership of the prohibited plants relied upon to prove appellant's guilt failed to meet the test of Constitutional competence.The Constitution decrees that, "In all criminal prosecutions, the accused shall be presumed innocent until the contrary is proved..."[59] To justify the conviction of the accused, the prosecution must adduce that quantum of evidence sufficient to overcome the constitutional presumption of innocence. The prosecution must stand or fall on its evidence and cannot draw strength from the weakness of the evidence for the accused.[60] Absent the required degree of proof of an accused's guilt, he is entitled to an acquittal.[61] In this case, the seized marijuana plants linking appellant to the crime charged are miserably tainted with constitutional infirmities, which render these inadmissible "for any purpose in any proceeding."[62] Nor can the confession obtained during the uncounselled investigation be used against appellant, "it being inadmissible in evidence against him.[63] Without these proffered but proscribed materials, we find that the prosecution's remaining evidence did not even approximate the quantum of evidence necessary to warrant appellant's conviction. Hence, the presumption of innocence in his favor stands. Perforce, his acquittal is in order.In acquitting an appellant, we are not saying that he is lily-white, or pure as driven snow. Rather, we are declaring his innocence because the prosecution's evidence failed to show his guilt beyond reasonable doubt. For that is what the basic law requires. Where the evidence is insufficient to overcome the presumption of innocence in favor of the accused, then his "acquittal must follow in faithful obeisance to the fundamental law."[64]WHEREFORE, the decision promulgated on February 18, 1997, by the Regional Trial Court of Bayombong, Nueva Vizcaya, Branch 27, in Criminal Case No. 3105, finding Abe Valdez y Dela Cruz, guilty beyond reasonable doubt of violating Section 9 of the Dangerous Drugs Act of 1972, and imposing upon him the death penalty, is hereby REVERSED and SET ASIDE for insufficiency of evidence. Appellant is ACQUITTED and ordered RELEASED immediately from confinement unless held for another lawful cause.SO ORDERED.

5. People Vs Rodriguez Gr No. 129211 October 2, 2000 341 Scra 645PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. WILFREDO RODRIGUEZ Y CULO and LARRY ARTELLERO Y RICO,[1] accused,LARRY ARTELLERO Y RICO, accused-appellant.D E C I S I O NQUISUMBING, J.:On appeal is the decision dated November 13, 1995 of the Regional Trial Court of Manila, Branch 29,[2] in Criminal Case No. 91-99526, convicting appellant and his co-accused of the crime of murder, sentencing them to suffer the penalty of reclusion perpetua, ordering them to pay the heirs of the victim P50,000.00 as indemnity, and to pay the costs.Appellant Larry Artellero was employed as a cement mixer and helper of co-accused Wilfredo Rodriguez, a mason in the construction of the upper floors of the Far East Bank and Trust Company, Blumentritt Branch, Sta. Cruz, Manila. Both were charged with the crime of robbery with homicide for the killing of the bank security guard, Ramon Matias y Ibay. The trial court found both guilty of murder. Both appealed. However, Rodriguez withdrew his appeal for financial reasons. Although only Artellero is the appellant now, in view of the circumstances obtaining in this case, we are compelled to review Rodriguezs conviction as well.The facts of the case are as follows:On October 11, 1991, early in the morning, at the Far East Bank and Trust Company branch office in Rizal Avenue cor. Batangas St., Sta. Cruz, Manila, a messenger discovered the lifeless body of Matias, inside the bank premises. The body was hogtied with a nylon cord, and bore 32 stab wounds. The chairs and tables inside the bank were in disarray. The banks emergency exit vault bore chisel marks. At around 6:00 A.M., SPO3 Mendoza and two other officers of the Western Police District arrived after receiving a report on the incident. They interviewed the bank janitor, a Mr. Cawagdan, and the other security guard, Dionisio Vargas. Then they ordered the transfer of the body of Matias to the morgue. The police found a bloodstained scissors mate inside a podium located near the main entrance of the bank. The head guard of the banks security agency (Leopard) also reported that three .38 cal. revolvers and five 12 gauge shotguns were missing from the guard rostrum.[3]At around 4:00 P.M., SPO3 Jamoralin and four other WPD policemen conducted a follow-up investigation. They learned from Vargas that there was an on-going construction on the upper floors of the bank, and that appellant and his co-accused had access to the bank after office hours. SPO3 Jamoralin asked Vargas to accompany them to the barracks of the construction workers where they saw appellant at the ground floor of the construction site. On the third floor, they saw the co-accused, Rodriguez, packing his personal belongings. When asked why he was packing, Rodriguez replied that he had nothing more to do (at the site). SPO3 Jamoralin and the other police officers saw a pair of worn-out maong pants on appellants bed, which had reddish stains on the right leg. The police also saw reddish stains on accuseds shirt. Rodriguez explained that he had a wound on his neck. However, when the police examined his neck, they found no wound. The police then arrested Rodriguez and appellant and brought them to the police station for interrogation. The police took the maong and t-shirt and had them examined by the Chemistry Section of National Bureau of Investigation (NBI).[4]On October 15, 1991, Rodriguez executed a sworn statement confessing that he and appellant together with one Rading Mendoza, and two other men whose names he did not know, killed Matias. Rodriguez was assisted by Atty. Procopio Lao III, of the Public Attorneys Office.On October 18, 1991, appellant and Rodriguez were charged with the crime of Robbery with Homicide under the following Information:[5]That on or about October 11, 1991, in the City of Manila, Philippines, the said accused, whose true names, identities and present whereabouts are still unknown and helping one another, did then and there wilfully, unlawfully and feloniously, with intent to kill, attack, assault and use personal violence upon the person of RAMON MATIAS, a security guard on duty at Far East Bank and Trust Company, by then and there stabbing the latter several times with a bladed instrument, hitting him on the different parts of the body, thereby inflicting upon the said RAMON MATIAS mortal stab wounds which were the direct and immediate cause of his death; that once the said RAMON MATIAS was attacked, assaulted and/or killed in the manner above-described, the said accused, with intent of gain, take, rob and carry away three (3) pieces of caliber .38 revolvers and five (5) pieces of 12 gauge shotguns, all valued not less than P5.00; belonging to the Far East Bank and Trust Company, to the damage and prejudice of the said bank in the aforesaid amount of P5.00, Philippine Currency.Contrary to Law.Upon arraignment on November 22, 1991, appellant and Rodriguez entered their respective pleas of not guilty.[6]During trial, the prosecution presented the following witnesses: (1) SPO3 Jaime D. Mendoza, (2) SPO3 Rodolfo A. Jamoralin, Jr., both of the Crimes against Persons Division of the WPD, (3) Atty. Procopio Lao III of the Public Attorneys Office (PAO), and (4) Carolyn Y. Custodio, Supervisor of the Chemistry District of the NBI.Custodio testified that the reddish stains on Rodriguezs pants and shirt were positive for type O human blood, which was also the blood type of Rodriguez.[7]The testimony of Dr. Dario L. Gajardo, Chief and Medico-Legal Officer of the PNP Crime Laboratory, was dispensed with upon admission of the defense of the authenticity of the Necropsy Report,[8] which stated that the cause of death was cardio-respiratory arrest due to shock and hemorrhage secondary to multiple stab wounds in the body.[9]The prosecution likewise offered in evidence the photograph of the body of the victim when it was found, the nylon cord used to tie him, the Sworn Statement of security guard Dionisio Vargas, the Certification issued by the Leopard Agency as to the missing firearms, the sworn statement of Rodriguez, the Progress Report of SPO3 Jamoralin, the Booking Sheet and Arrest Report, the Letter-Request of Chief Inspector Jose Pring addressed to the Director of the NBI, the NBI Laboratory Report No. B-91-1613, the maong pants and shirt, and the PNP Medico-Legal Report.[10]After presentation of the prosecutions evidence, appellant filed a Demurrer to the Evidence[11]on the grounds that the prosecution failed to establish the guilt of the accused beyond reasonable doubt and that testimonies of the prosecution witnesses were hearsay. Upon the Opposition[12] of the public prosecutor, the trial court denied the demurrer for lack of merit.[13]The evidence for the defense consists of the testimonies of the following witnesses: (1) Evangelo U. Javellano, Jr., Bank Manager of the FEBTC, Blumentritt branch, who testified that bank policy prohibits the guards from allowing persons into the bank after office hours, except for official visitors coming from higher ranks,[14] (2) appellant, and (3) Rodriguez.On the stand, both Rodriguez and appellant admitted that they were provincemates from Masbate and co-workers in the construction site. They slept inside the building on the night before the incident but denied any participation in killing. They claimed that they learned of the killing only on October 11, 1991, at around 7:00 A.M., when they saw many people milling around the area. Rodriguez claimed that on the night of October 11, 1991, he was mauled by policemen to confess to the crime. Appellant, on his part, testified that the policemen merely placed him outside the room where Rodriguez was being interrogated, and that the police did not take any statement from him. Appellant also denied owning the maong pants which the police said were taken from his bed.[15]After due trial, the trial court rendered a decision[16] finding appellant and Rodriguez guilty of murder, instead of robbery with homicide, disposing thus:WHEREFORE, the accused Larry Artellero Y Rico and Wilfredo Rodriguez Y Culo are hereby found guilty of the crime of Murder as defined and penalized under Art. 248 of the Revised Penal Code and each of them are (sic) hereby sentenced to suffer the penalty of Reclusion Perpetua and pay civil indemnity of P50,000.00 by each of them to the heirs of the victim Ramon Matias Y Ibay and to pay the costs.The charge of Robbery with Homicide is dismissed it being not the proper charge. The accused are acquitted from the charge of Robbery for insufficiency of evidence.SO ORDERED.Only appellant pursued his appeal. In his brief,[17] he contends that the trial court erred in:I. ... GIVING CREDENCE TO THE EXTRAJUDICIAL CONFESSION OF CO-ACCUSED, WILFREDO RODRIGUEZ, ALLEGED CO-CONSPIRATOR, IN PROVING CONSPIRACY AS CIRCUMSTANTIAL EVIDENCE TO SHOW PROBABILITY OF PARTICIPATION OF LARRY ARTILLERO AS CO-CONSPIRATOR.II. ... HOLDING THAT THE MAONG PANTS STAINED WITH HUMAN BLOOD TYPE O IS THAT OF ACCUSED-APPELLANT, AND AS PART OF CIRCUMSTANTIAL EVIDENCE OF GUILT OR PARTICIPATION IN THE COMMISSION OF THE CRIME.III. ... HOLDING THAT THE FACT OF WORKING AND SLEEPING TOGETHER WITH CO-ACCUSED FOR SIX (6) MONTHS, AS PART OF CIRCUMSTANTIAL EVIDENCE TO FINGER POINT GUILT TO ACCUSED-APPELLANT.IV. ... RENDERING DECISION MORE SERIOUS THAN CHARGED IN THE INFORMATION.Instead of filing an Appellees Brief, the Office of the Solicitor General filed a Manifestation and Motion in Lieu of Appellees Brief[18] contending that:(1) THE TRIAL COURT ERRED IN ADMITTING IN EVIDENCE THE EXTRAJUDICIAL CONFESSION OF ACCUSED WILFREDO RODRIGUEZ AGAINST HIS CO-ACCUSED, APPELLANT LARRY ARTELLERO.(2) ASSUMING FOR THE SAKE OF ARGUMENT THAT ACCUSED RODRIGUEZS EXTRAJUDICIAL CONFESSION IS ADMISSIBLE AGAINST APPELLANT ARTELLERO, THE TRIAL COURT ERRED IN FINDING APPELLANT GUILTY OF THE CRIME OF MURDER.The OSG points out that the prosecution failed to prove the existence of a conspiracy between appellant and Rodriguez independent of the extrajudicial confession of the latter. The fact that Rodriguez and appellant have been working in the construction site for six months prior to the incident is insufficient to make a finding of conspiracy. Further, the fact that type O blood stains were found on appellants maong pants and Rodriguezs t-shirt has no probative value since appellant denied owning the maong pants, and more importantly, the victims blood type was not examined, hence there was no point of comparison. Lastly, the OSG contends that the trial court erred in convicting appellant of murder considering that the Information failed to allege the circumstances qualifying the killing to murder.The resolution of the issue regarding the guilt of appellant, in our view, hinges on whether the extrajudicial confession of accused Rodriguez is admissible not only against him but also against appellant. We find that Rodriguezs confession is constitutionally flawed so that it could not be used as evidence against them at all.

The four fundamental requisites for the admissibility of a confession are (1) the confession must be voluntary; (2) the confession must be made with the assistance of competent and independent counsel; (3) the confession must be express; and (4) the confession must be in writing.[19]We find the second requisite lacking. Prosecution witness SPO3 Jamoralin testified that the accused and appellant were arrested and brought to the police station at around 5:00 P.M. of October 11, 1991.[20] The records show that the extrajudicial confession of Rodriguez was taken down by Pat. David D. Tuazon at 2:00 P.M. of October 15, 1991.[21] Atty. Lao confirmed on the stand that the police investigators called him at around 2:00 P.M. of October 15, 1991, and that he conferred with the accused for about 10 minutes prior to the execution of the extrajudicial confession.[22] Evidently, Rodriguez and appellant were detained for four days, but Atty. Lao of the PAO was called only on the fourth day of detention when accused was about to put his confession in writing. Under the factual milieu, the moment accused and appellant were arrested and brought to the police station, they were already under custodial investigation.In the case of People v. Bolanos,[23] we held that an accused who is on board the police vehicle on the way to the police station is already under custodial investigation, and should therefore be accorded his rights under the Constitution. In this case, the teaching of Bolanos clearly went unheeded.The rights of persons under custodial investigation is enshrined in Article III, Section 12 of the 1987 Constitution which provides: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 vitiates 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 section 17 hereof (right against self-incrimination) shall be inadmissible in evidence against him.(4) The law shall provide for penal and civil sanctions for violation of this section as well as compensation for the rehabilitation of victims of tortures or similar practices, and their families.Custodial investigation refers to the critical pre-trial stage when the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular person as a suspect.[24] When Rodriguez and appellant were arrested by the police in the afternoon of October 11, 1991, they were already the suspects in the slaying of the security guard, Ramon Matias, and should have been afforded the rights guaranteed by Article III, Section 12 of the 1987 Constitution, particularly the right to counsel. The records do not show that Rodriguez and appellant, at the time of their arrest in the afternoon of October 11, 1991, were informed of the well-known Miranda rights. Worse, they were not provided with competent and independent counsel during the custodial investigation prior to the execution of the extrajudicial confession.In People v. De la Cruz, 279 SCRA 245 (1997), we declared as inadmissible the extrajudicial confession of accused where the interrogation started at 9:00 A.M. and his lawyer arrived only at 11:00 A.M.. Jurisprudence is clear that an accused under custodial investigation must continuously have a counsel assisting him from the very start thereof.[25] In this case, Rodriguez and appellant were in the hands of the police for about four days without the assistance of counsel. In People v. Compil,[26] we held that:The operative act, it has been stressed, is when the police investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect who has been taken into custody by the police to carry out a process of interrogation that lends itself to eliciting incriminatory statements, and not the signing by the suspect of his supposed extrajudicial confession. Thus in People v. de Jesus (213 SCRA 345 [1992]) we said that admissions obtained during custodial investigation without the benefit of counsel although later reduced to writing and signed in the presence of counsel are still flawed under the Constitution.So flagrant a violation of the constitutional right to counsel of the accused cannot be countenanced. In People v. Olivarez, Jr.,[27] we explained that:The purpose of providing counsel to a person under custodial investigation is to curb the uncivilized practice of extracting confession even by the slightest coercion as would lead the accused to admit something false. What is sought to be avoided is the evil of extorting from the very mouth of the person undergoing interrogation for the commission of an offense, the very evidence with which to prosecute and thereafter convict him. These constitutional guarantees have been made available to protect him from the inherently coercive psychological, if not physical, atmosphere of such investigation.Moreover, so stringent is this requirement that even if the confession of an accused speaks the truth, if it was made without the assistance of counsel, it is inadmissible in evidence regardless of the absence of coercion, or even if it had been voluntarily given.[28]Since the extrajudicial confession executed by Rodriguez was given in violation of the safeguards in Art. III, Sec. 12 of the 1987 Constitution, we hold that Rodriguezs confession is totally inadmissible, and it was error for the trial court to use it in convicting Rodriguez and appellant.Insofar as Rodriguez is concerned, the trial court relied on his extrajudicial confession in convicting him. Aside from said extrajudicial confession, however, there is a dearth of evidence on record, whether direct or circumstantial, linking Rodriguez to the commission of the crime.As to appellant, the trial court convicted him on the basis of two pieces of circumstantial evidence which show conspiracy: (1) the extrajudicial confession of accused implicating him as one of the perpetrators and (2) the fact that the maong pants allegedly belonging to appellant was found positive of type O blood. The former being inadmissible and the latter being of no probative value since the blood type of appellant and the victim were not taken for purposes of comparison, there remains nothing to support appellants conviction.As pointed out by the Office of the Solicitor General, even granting arguendo that the extrajudicial confession of accused was admissible, Section 33 of Rule 130 of the Rules of Court provides that such confession is only admissible against the confessant. In order to be admissible against his co-accused, Section 30 of Rule 130 of the Rules of Court require there must be independent evidence aside from the extrajudicial confession to prove conspiracy. In this case, however, no other piece of evidence was presented to prove the alleged conspiracy.Although it is only appellant who persisted with the present appeal, the well-established rule is that an appeal in a criminal proceeding throws the whole case open for review of all its aspects, including those not raised by the parties.[29] The records show that Rodriguez had withdrawn his appeal due to financial reasons.[30] However, Section 11 (a) of Rule 122 of the Rules of Court provides that [a]n appeal taken by one or more [of] several accused shall not affect those who did not appeal, except insofar as the judgment of the appellant court is favorable and applicable to the latter. As we have elucidated, the evidence against and the conviction of both appellant and Rodriguez are inextricably linked. Hence, appellants acquittal, which is favorable and applicable to Rodriguez, should benefit the latter.WHEREFORE, the decision of the trial court convicting appellant LARRY ARTELLERO y RICO and co-accused WILFREDO RODRIGUEZ y CULO is hereby REVERSED. Appellant and Rodriguez are ACQUITTED of the crime of murder and ordered immediately released from prison, unless held for another lawful cause. The Director of Prisons is directed to inform this Court of his compliance, within ten (10) days from receipt of this Decision. No costs.SO ORDERED.

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