Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

 

G.R. Nos. L-32951-2 September 17, 1971

RICARDO DE LA CAMARA, petitioner, vs.HON. MANUEL LOPEZ ENAGE, Presiding Judge of the Court of First Instance of Agusan del Norte and Butuan City (Branch II), respondents.

Demosthenes Mediante, Puro Velez, Francisco Fabe, Federico del Puerto and Pelaez, Jalandoni & Jamir for petitioner.

Hon. Manuel Lopez Enage in his own behalf.

R E S O L U T I O N

 

 

FERNANDO, J.:

An order of respondent Judge Manuel Lopez Enage, fixing the bail of petitioner, Ricardo de la Camara, in the sum of P1,195,200.00 is assailed in this petition for certiorari as repugnant to the constitutional mandate prohibiting excessive bail. 1 The merit of the petition on its face is thus apparent. Nonetheless, relief sought setting aside the above order by reducing the amount of bail to P40,000.00 cannot be granted, as in the meanwhile, petitioner had escaped from the provincial jail, thus rendering this case moot and academic. It is deemed advisable, however, for the guidance of lower court judges, to set forth anew the controlling and authoritative doctrines that should be observed in fixing the amount of the bail sought in order that full respect be accorded to such a constitutional right.

The facts are not in dispute. Petitioner, Ricardo, de la Camara, Municipal Mayor of Magsaysay, Misamis Oriental, was arrested on November 7, 1968 and detained at the Provincial Jail of Agusan, for his alleged participation in the killing of fourteen and the wounding of twelve other laborers of the Tirador Logging Co., at Nato, Esperanza, Agusan del Sur, on August 21, 1968. Thereafter, on November 25, 1968, the Provincial Fiscal of Agusan filed with the Court of First Instance a case for multiple frustrated murder 2 and another for multiple murder 3 against petitioner, his co-accused Nambinalot Tagunan and Fortunato Galgo, resulting from the aforesaid occurrence. Then on January 14, 1969, came an application for bail filed by petitioner with the lower court, premised on the assertion that there was no evidence to link him with such fatal incident of August 21, 1968. He likewise mantained his innocence. Respondent Judge started the trial of petitioner on February 24, 1969, the prosecution resting its case on July 10, 1969. As of the time of the filing ofthe petition, the defense had not presented its evidence.

Respondent Judge, on August 10, 1970, issued an order granting petitioner's application for bail, admitting that there was a failure on the part of the prosecution to prove that petitioner would flee even if he had the opportunity,but fixed the amount of the bail bond at the excessive amount of P1,195,200.00,the sum of P840,000.00 for the information charging multiple murder and P355,200.00 for

the offense of multiple frustrated murder. Then came the allegation that on August 12, 1970, the Secretary of Justice, Vicente Abad Santos, upon being informed of such order, sent a telegram to respondent Judgestating that the bond required "is excessive" and suggesting that a P40,000.00bond, either in cash or property, would be reasonable. There was likewise a motion for reconsideration to reduce the amount. Respondent Judge however remained adamant. Hence this petition.

The answer filed by respondent Judge on March 5, 1971 set forth the circumstances concerning the issuance of the above order and the other incidents of the case, which, to his mind would disprove any charge that he wasguilty of grave abuse of discretion. It stressed, moreover, that the challengedorder would find support in circulars of the Department of Justice given sanction by this Court. He sought the dismissal of the petition for lack of merit.

In the hearing of the case set for March 31, 1971, there was no appearance for both the petitioner and respondents with the former, upon written motion, being given thirty days within which to submit a memorandum in lieu of oral argument, respondent Judge in turn having the same period from receipt thereofto file his reply. Such a memorandum as duly submitted by petitioner on April 6, 1971.

Instead of a reply, respondent Judge submitted, on May 26, 1971, a supplemental answer wherein he alleged that petitioner escaped from the provincial jail on April 28, 1971 and had since then remained at large. There was a reiteration then of the dismissal of this petition for lack of merit, towhich petitioner countered in a pleading dated June 7, 1971, and filed with this Court the next day with this plea: "The undersigned counsel, therefore, vehemently interpose opposition, on behalf of petitioner, to respondent's prayer for dismissal of the present petition for lack of merit. For, the issue in this case is not alone the fate of petitioner Ricardo de la Camara. The issue in the present petition that calls for the resolution of this Honorable Tribunal is the fate of countless other Ricardo de la Camaras who maybe awaiting the clear-cut definition and declaration of the power of trial courts in regard to the fixing of bail."4

While under the circumstances a ruling on the merits of the petition for certiorari is not warranted, still, as set forth at the opening of this opinion, the fact that this case is moot and academic should not preclude thisTribunal from setting forth in language clear and unmistakable, the obligationof fidelity on the part of lower court judges to the unequivocal command of theConstitution that excessive bail shall not be required.

1. Before conviction, every person is bailable except if charged with capital offenses when the evidence of guilt is strong. 5 Such a right flows from the presumption of innocence in favor of every accused who should not be subjected to the loss of freedom as thereafter he would be entitled to acquittal, unless his guilt be proved beyond reasonable doubt. Thereby a regimeof liberty is honored in the observance and not in the breach. It is not beyondthe realm of probability, however, that a person charged with a crime, especially so where his defense is weak, would just simply make himself scarceand thus frustrate the hearing of his case. A bail is intended as a guarantee that such an intent would be thwarted. It is, in the language of Cooley, a "mode short of confinement which would, with reasonable certainty, insure the attendance of the accused" for the subsequent trial. 6 Nor is there, anything unreasonable in denying this right to one charged with a capital offense when evidence of guilt is strong, as the likelihood is, rather than await the outcome of the proceeding against him with a death sentence, an ever-present threat, temptation to flee the jurisdiction would be too great to be resisted.

2. Where, however, the right to bail exists, it should not be rendered nugatory by requiring a sum that is excessive. So the Constitution commands. It is understandable why. If there were no such prohibition, the right to bail becomes meaningless. It would have been more forthright if no mention of such a guarantee were found in the fundamental law. It is not to be lost sight of that the United States Constitution limits itself to a prohibition against excessive bail. 7 As construed in the latest American decision, "the sole permissible function of money bail is to assure the accused's presence at trial, and declared that "bail set at a higher figure than an amount reasonablycalculated to fulfill thus purpose is "excessive" under the Eighth Amendment." 8

Nothing can be clearer, therefore, than that the challenged order of August 10, 1970 fixing the amount of P1,195,200.00 as the bail that should be posted by petitioner, the sum of P840,000.00 for the information charging multiple murder, there being fourteen victim, and the sum of P355,200 for the other offense of multiple frustrated murder, there being twelve victims, is clearly violative of constitutional provision. Under the circumstances, there being only two offenses charged, the amount required as bail could not possibly exceed P50,000.00 for the information for murder and P25,000.00 for the other information for frustrated murder. Nor should it be ignored in this case that the Department of Justice did recomend the total sum of P40,000.00 for the twooffenses.

3. There is an attempt on the part of respondent Judge to justify what, on its face, appears to be indefensible by the alleged reliance on Villaseñor v. Abano. 9 The guidelines in the fixing of bail was there summarized, in the opinion of Justice Sanchez, as follows: "(1) ability of the accused to give bail; (2) nature of the offense; (3) penalty for the offense charged; (4) character and reputation of the accused; (5) health of the accused; (6) character and strength of the evidence; (7) probability of the accused appearing in trial; (8) forfeiture of other bonds; (9) whether the accused wasa fugitive from justice when arrested; and (10) if the accused is under bond for appearance at trial in other cases." 10 Respondent Judge, however, did ignore this decisive consideration appearing at the end of the above opinion: "Discretion, indeed, is with the court called upon to rule on the question of bail. We must stress, however, that where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we will not hesitate to exercise our supervisorypowers to provide the required remedy." 11

No attempt at rationalization can therefore give a color of validity to the challenged order. There is grim irony in an accused being told that he has a right to bail but at the same time being required to post such an exorbitant sum. What aggravates the situation is that the lower court judge would apparently yield to the command of the fundamental law. In reality, such a sanctimonious avowal of respect for a mandate of the Constitution was on a purely verbal level. There is reason to believe that any person in the position of petitioner would under the circumstances be unable to resists thoughts of escaping from confinement, reduced as he must have been to a stateof desperation. In the same breath that he was told he could be bailed out, the excessive amount required could only mean that provisional liberty would bebeyond his reach. It would have been more forthright if he were informed categorically that such a right could not be availed of. There would have beenno disappointment of expectations then. It does call to mind these words of Justice Jackson, "a promise to the ear to be broken to the hope, a teasing illusion like a munificent bequest in a pauper's will." 12 It is no wonder that the resulting frustration left resentment and bitterness in its wake.Petitioner's subsequent escape cannot be condoned. That is why he is not entitled to the relief prayed for. What respondent Judge did, however, does call for repudiation from this Court.

Nor is there any justification then for imputing his inability to fix a lesser amount by virtue of an alleged reliance on a decision of this Tribunal. Even if one were charitably inclined, the mildest characterization of such a result is that there was a clear reading of the Abano opinion when such a meaning was ascribed to it. No doctrine refinement may elicit approval if to doso would be to reduce the right to bail to a barren form of words. Not only isthe order complained of absolutely bereft of support in law, but it flies in the face of common sense. It is not too much to say that it is at war with thecommand of reason.

With petitioner, however, having escaped from the provincial jail, no ruling can be had on his plea to nullify the above order.

WHEREFORE, this case is dismissed for being moot and academic. Without pronouncement as to costs.

Concepcion, C.J., Reyes, J.B.L., Dizon, Makalintal, Zaldivar, Teehankee, Barredo and Villamor, JJ., concur.

Castro, J., concurs in the result.

Makasiar, J., took no part.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-8116             August 25, 1956

SCOTY'S DEPARTMENT STORE, ET AL., petitioner, vs.NENA MICALLER, respondent.

Yuseco, Abdon, Yuseco and Narvasa for petitioners.Eulogio R. Lerum for respondent.

BAUTISTA ANGELO, J.:

This is a petition for review of an order issued by Hon. Jose S. Bautista, Associate Judge, Court of Industrial Relations, finding respondents, now petitioners, guilty of unfair labor practice and imposing upon them a fine of P100, at the same time ordering them to reinstate petitioner, now respondent, Nena Micaller, with back pay from December 1, 1953 until her actual reinstatement, which was affirmed by the court en banc in its resolution on August 14, 1954.

Nena Micaller was employed as a salesgirl in the Scoty's Department Store situated at 615 Escolta, Manila. This store was owned and operated by Yu Ki Lam, Richard Yang, Yu Si Kiao and Helen Yang. Pursuant to section 5(b) of the Industrial Peace Act, Nena Micaller filed charges of unfair labor practice against her above employers alleging that she was dismissed by them because of her membership in the National Labor Union and that, prior to her separation, said employers had been questioning their employees regarding their membership in said union and had interfered with their right to organize under the law.

The employers denied the charge. They claim that the complainant was dismissed from the service because of her misconduct and serious disrespect to the management and her co-employees so much so that several criminal charges were filed against her with the city fiscal of Manila who, after investigation, filed the corresponding informations against her and the same are now pending trial in court.

After due hearing, where both parties presented their respective evidence, the court found the following facts: Prior to November, 1953, Nena Micaller was earning P4.80 a day. After every New Year, she was given from P180 to P200 as bonus whereas the other employees were only given P60. For three consecutive years, 1950, 1951 and 1952, she was given a first prize for being the best seller, the most cooperative and most honest employee. One week before October 12, 1953, she organized a union among the employees of the store which was latter affiliated with the National Labor Union. Later, the National Labor Union sent a petition to the store containing ten demands and no Nena was called by the management for questioning and, in the manager's office, Yu Ki Lam, Richard Yang, Yu Si Kiao and Helen Yang asked her who were the members of the union, but she pretended not to know them. On October 18, 1953, Richard Yang and Yu Si Kiao, together with a brother-in law, went to the house of Nena and there again questioned her regarding her union membership. On October 19, Nena was brought by her employers to the house of their counsel, Atty. Joaquin Yuseco, and there she was again questioned regarding her union activities and was even made to sign a paper of withdrawal from the union. In the night of October 19, the manager of the Store, Yu Ki Lam. asked each the every employee whether they were members of the union. On October 31, the union gave notice to strike to the management. Upon receipt of the notice, the management hired temporary employees equal in number to the old. The new employees were affiliated with another labor union.

On November 28, 1953, an information for threats was filed against Nena Micaller before the municipal court. This was dismissed. Another information was filed against Nena Micaller for slander. She was sentenced to pay a fine of P50 but the decision was appealed to the court of first instance. A third information for slander was filed against her before the same court. And on November 30, she was dismissed for "insulting the owner of the store, Yu Ki Lam, on November 5, and for taking to the girls inside the store during business hours." And on the strength of these facts the court found respondents, now petitioners, guilty of unfair labor practice and ordered them to pay a fine of P100.

Petitioners now contend that the industrial court erred in finding (1) the Nena Micaller was dismissed because of her membership in the National Labor Union and her union activities; (2) that petitioners have committed unfair labor practice; and (3) that petitioners can be legally punished by a fine of P100.

We are afraid that we cannot now look into points 1 and 2 for they involve questions of fact. the industrial court has made a careful analysis of the evidence and has found the petitioners have really subjected complaint and her co-employees to a series of questioning regarding their membership in the union or their union activities which in contemplation of law are deemed acts constituting unfair labor practice [Section 4, (a) (4) , Republic Act No. 875. This finding is binding upon this Court following well-known precedents. 1

Our law on this point is of recent enactment and so we may find difficulty in determining what acts or circumstances may institute unfair labor practice within its purview for lack of appropriate precedents. However, there are many American cases that may be resorted to where been found guilty of unfair labor practice under similar circumstances and was given the corresponding sanction. One of such cases, which in our opinion is on all fours with the present, is NLRB vs. Harris-Woodson Co. (CCA-4, 1947, 179 F 2d 720) where the following was held: .

As to the Board's finding of interference, there is abundant evidence of the questioning of employees as to membership in the union and of anti-union expressions by the company's superintendent made in such away as to discourage union membership. The rule with respect thereto is well settled and was stated by us recently in the case of NLRB vs. Norfolf-Southern Bus Corpn. 159 Fed 2d 518, where we said:

"Questioning of employees concerning union membership and activities and disparaging remarks by supervisory employees made in such away as to hamper the exercise of free choice on the part of the employees, have been uniformly condemned as a violation of the Act. H. V. Heins. Co. vs. NLRB, 311 US 514, 518 61 S. Ct. Cir., 132 F. 2d 390. 392-395;; NLRB, 4 Cir., 138 F 2d 738."

As to the discharge of Edna B. Edler, the president of the union, it appears that she was discharged in the Spring of 1945 at the time when question of union representation was becoming acute. The Company contends that the ground of the discharge was insubordinate language and conduct, and evidence of a controversy between the employer and the superintendent of the this was not the true reason for the discharge, but only a pretext. It was shown that Mrs. Edler was a competent and efficient employee with a long record of faithful service, and by the controversies and even quarrels between the employees and the superintendent had not therefore led to discharge. According to Mrs. Edler's testimony, which was accepted by the Board, the controversy was a very minor character and furnished to sufficient justification for the peremptory discharge of an efficient employee with a long record of service. Under such circumstances, the Board may very well have concluded that the true reason for the discharge was other than the union and her activity in its behalf. This is all the more reasonable in view of the manifest anti-union bias of the company's officers and superintendent and for the controversy with regard to the recognition of the union which had just been revived . .

The next question to be determined is whether the industrial court is justified in imposing a fine not only upon Yu Ki Lam, who was the manager of the store, but also upon Richard Yang, Yu Si Kiao and Helen Yang, who were mere owners thereof but had no participation in its management. Petitioners contend that section 25 of Republic Act No. 875 being penal in character should be strictly construed in favor of the accused and in that sense their guilt can only be established by clear and positive evidence and not merely be presumptions or inferences as was done by the industrial court. In other words, it is contended that the evidence as regards unfair labor practice with reference to the three above-named petitioners is not clear enough labor practice and the fine imposed upon them is unjustified.

This question requires a little digression on the issue of whether the Court of Industrial Relations has jurisdiction to impose the penalties prescribed in section 25 of Republic Act No. 875.

SEC. 25. Penalties. — Any person who violates the provisions of section three this act shall be punished by a fine of not less than one hundred pesos nor more than one thousand pesos, or by imprisonment of not less than one month nor more than one year, or both by such free and imprisonment, in the discretion of the Court.

Any other violation of this Act which is declared unlawful shall be punished by a fine of not less than fifty nor more than five hundred pesos for each offense.

The above provision is general in nature for its does not specify the court that may act when the violation charged calls for the imposition of the penalties therein provided. It merely states that they may be imposed "in the discretion of the court." Does the word "Court employed therein refer to the Court of Industrial Relations . . . unless another Court shall be specified?"

After mature deliberation, this Court has reached the conclusion that, said provision notwithstanding, that word cannot refer to the Court of Industrial Relations for to give that meaning would be violative of the safeguards guaranteed to every accused by our Constitution. We refer to hose which postulate that "No person shall be held to answer for a criminal offense without due process of law" [Article III, section 1, (15), Philippine Constitutional], and that "In all criminal prosecution the accused . . . shall enjoyed the right to be heard by himself and counsel, against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witnesses in his behalf" [Article III, section 1, (17)].

The procedure laid down by law to be observed by the Court of Industrial Relations in dealing with the unfair labor practice cases negates those constitutional guarantee to the accused. And this is so because, among other things, the law provides that "the rules of evidence prevailing in court for the courts of law or equity can not be controlling and it is the spirit and intention of this act that the Court (of Industrial Relations) and its members and its Hearing Examiners shall be use every and all reasonable means to ascertain the facts in each case speedily and objective and without regards to technicalities of law of procedure." It is likewise enjoined that "the Court shall not be bound solely by the evidence presented during the hearing but may avail itself of all other means such as (but not limited to) ocular inspections and questioning of well-informed persons which results must be made a part of the record" [section 5 (b), Republic Act No. 875]. All this means that an accused may be tried without the right "to meet the witnesses face to face" and may be convicted merely on preponderance of evidence and not beyond reasonable doubt. This is against the due process guaranteed by the constitution. It may be contended that this gap may be subserve strictly the rules applicable to criminal cases to meet the requirements of the Constitution, but this would be tantamount to amending the law which is not within the province of the judicial branch of our Government.

A comparative study of the jurisdiction of the Court of Agrarian Relations created by Republic Acts (No. 875 and No. 1267) contain a general provision prescribing, in one a penalty of "a fine an imprisonment, in the discretion of the Court", (section 25, Republic Act No. 875) and, in the other, a penalty of "a fine not exceeding two thousand pesos or imprisonment not exceeding one year, or both, in this discretion of the

Court" (section 14, Republic Act No. 1267), upon any person who violates any of the provisions therein specified. But while Republic Act No. 857, as effect in Court of Industrial Relations, is silent as to the procedure to be followed in the prosecution of the offense, Republic Act No. 1267 as affects the Court of Agrarian Relations, provides that "Criminal proceedings should be prosecuted as in ordinary cases" (section 10). This is the clear indication that when an administrative court, it amended the law by eliminating entirely this criminal jurisdiction originally conferred upon the Court of Agrarian Relations. This was made manipulating those provisions manifesting those provisions affecting the criminal Act No. 1409 repealing those provisions affecting the criminal jurisdiction aforementioned (sections 7 and 10).

It would not be amiss to quote hereunder portions of the legislative record containing the deliberations made on the bill eliminating the criminal jurisdiction of the Court of Agrarian Relation, which show that the real intent of congress was to place that court on the same footing as the Public Service Commission and the Court of Industrial relations by confining their jurisdiction exclusively to civil matters:

Mr. MARCOS. Mr. Speaker, will the sponsor of the bill yield? I should like to ask some questions regarding the amendments of the Committee to the Court of Agrarian Law.

The SPEAKER. The sponsor may yield, if he so desires. "Mr FRANCISCO. With pleasure.

Mr. MARCOS. I should like call the attention of the distinguish chairman of the Committee on Judiciary to page 3 of the bill of the committee which amends section of the agrarian court law, Republic act no. 1267. The gentleman, in the bill of the committee on page 3, line 11, struck out the words not criminal in nature', so that it reads in line 11:

"Provided, however, that in the hearing, investigation and determination of any question or controversy ( the gentleman struck out the words 'not criminal in nature' and in exercising any duty and power under this Act, the court shall act according to justice and equity and substantial merit of the case without regards to technicalities or legal forms, etc.

Now, we find on line 17 and 18 that the whole sentence 'Criminal Proceedings should be prosecuted as in ordinary cases' was sticken out also. There seems to be a little ambiguity of removing from the Agrarian Court the applicability of the rules of evidence, because if this amendments of the committee will be interpreted to mean that the Agrarian court shall have jurisdiction over criminal cases which may arise, then it will be highly improper to disregards the rules of evidence in such criminal trials. Now may I know from the distinguish chairman if the purpose of these amendments of the committee is to continue with the criminal Jurisdiction of the Agrarian court, or to remove from the agrarian court such other criminal jurisdiction?

Mr. FRANCISCO. The purpose of the committee is to remove completely from the Agrarian Court any jurisdiction over criminal matters.

MR. MARCOS. I see. Now, does this refer only to criminal jurisdiction referred to on page 3, lines 2 and 3, which reads as follows:

"The court shall have concurrent jurisdiction with the court of First Instance over employer and farm employee of labor under Republic Act Numbered Six hundred two and over landlord and tenant involving violations of the Usury Law (Act No. 2655, as Amended) and of inflicting penalties provided thereof."

MR. FRANSISCO. It refers to all cases of criminal jurisdiction. As proof of that, the gentleman from Ilocos Norte will please notice that section 8 of the bill seeks the repeal of Section 14 of the law.

MR. MARCOS. Yes, in short, therefore, the Agrarian Court is deprived of all cases of criminal jurisdiction.

MR. FRANSISCO. The gentleman is correct.

MR. FRANSISCO. As far as the nature involved, is civil, yes.

MR. MARCOS. And the only jurisdiction that this Agrarian Court will retain, therefore, will be civil jurisdiction. Is that right?

MR. FRANSISCO. Yes.

MR. MARCOS. That is as provided for in the Tenancy Law.

MR. FRANSISCO. The gentlemen is correct.

MR. CUENCO. According to the exposition of the gentleman on this bill last night, which was quite convincing, the court that it is sought to be established by the bill will exercise quasi-judicial function and this court will be similar in nature to the Public Service Commission and that to the Court of Industrial Relations. Am I right?.

MR. FRANSISCO. The gentleman is correct.

MR. CUENCO. So, strictly speaking, there is no necessity to put here a proviso that this court shall have no jurisdiction over proceedings criminal in nature.

MR. FRANSISCO. But we have to introduce such an amendment in view of the provisions of Republic Act No. 1267 which gives the Court Agrarian Relations criminal jurisdiction. We are removing by this act the criminal jurisdiction of the Agrarian Court.

MR. CUENCO. But I will go further than that. In as much as this is a new court whose functions are not yet known to our people and to the bar, will not the gentleman entertain an amendment to Section 1, on Page 1, line 8, after the word "justice" that will reads as follows: Provided, however, That this court shall exercise no jurisdiction over proceedings criminal in nature", just to avoid confusion?

MR. FRANSISCO. The committee will be willing to entertain such as amendment. (Congressional Record, House of Representatives, No. 10, July 20, 1955, pp. 3778-3779; 3780.) (Emphasis supplied.)

In conclusion, our considered opinion is that the power to impose the penalties provided for in section 25 of Republic Act No. 875 is lodged in ordinary courts, and not in the Court of Industrial Relations, notwithstanding the definition of the word "Court" contained in section 2(a) of said Act. Hence, the decision of the of the industrial court in so far as it imposes a fine of P100 upon petitioners is illegal and should be nullified.

Wherefore, the decision appealed from is modified by eliminating the fine of P100 imposed upon petitioners. In all other respects, the same is affirmed, without pronouncements as to costs.

Bengzon, Padilla, Montemayor, Labrador, Concepcion, Reyes, J.B.L. Endencia, and Felix, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

FIRST DIVISION

 

G.R. No. L-31665 August 6, 1975

LEONARDO ALMEDA, petitioner, vs.HON. ONOFRE A. VILLALUZ, in his capacity as presiding judge of the Circuit Criminal Court, Seventh Judicial District, Pasig, Rizal, and HON. GREGORIO PINEDA, City Fiscal of Pasay City, respondents.

Honorio Makalintal, Jr. for petitioner.

Pasay City Fiscal Gregorio Pineda for respondent.

 

CASTRO, J.:

The petitioner Leonardo Almeda (alias Nardong Paa) was charged, together with five others, with the crime of qualified theft of a motor vehicle (criminal case 285-Pasay) in the Circuit Criminal Court of Pasig, Rizal, presided by the respondent Judge Onofre Villauz. The amount of the bond recommended for the provisional release of Almeda was P15,000, and this was approved by the respondent judge with a direction that it be posted entirely in cash.

At the hearing of February 18, 1970, Almeda asked the trial court to allow him to post a surety bond in lieu of the cash bond required of him. This request was denied, and so was an oral motion for reconsideration, on the ground that the amended information imputed habitual delinquency and recidivism on the part of Almeda.

At the same hearing, the respondent city fiscal, thru his assistant, reiterated his oral motion made at a previous hearing for amendment of the information so as to include allegations of recidivism and habitual delinquency in the particular case of Almeda. The latter vigorously objected, arguing that (a) such an amendment was premature since no copies of prior conviction could yet be presented in court, (b) the motion to amend should have been made in writing in order to enable him to object formally, and (c) the proposed amendment would place him in double jeopardy considering that he had already pleaded not guilty to the information. The trial court nevertheless granted the respondent fiscal's motion in open court. An oral motion for reconsideration was denied.

Immediately thereafter, the assistant fiscal took hold of the original information and, then and there, entered his amendment by annotating the same on the back of the document. The petitioner forthwith moved for the dismissal of the charge on the ground of double jeopardy, but this motion and a motion for reconsideration were denied in open court.

Hence, the present special civil action for certiorari with preliminary injunction.

Two issues are posed to us for resolution: First, whether the respondent judge has the authority to require a strictly cash bond and disallow the petitioner's attempt to post a surety bond for his provisional liberty, and second, whether the amendment to the information, after a plea of not guilty thereto, was properly allowed in both substance and procedure.

1. As defined by section 1 of Rule 114 of the Rules of Court, bail is "the security required and given for the release of a person who is in the custody of the law, that he will appear before any court in which his appearance may be required as stipulated in the bail bond or recognizance." The purpose of requiring bail is to relieve an accused from imprisonment until his conviction and yet secure his appearance at the trial. 1

In this jurisdiction, the accused, as of right, is entitled to bail prior to conviction except when he is charged with a capital offense and the evidence of guilt is strong. This right is guaranteed by the Constitution, 2 and may not be denied even where the accused has previously escaped detention, 3 or by reason of his prior absconding. 4 In order to safeguard the right of an accused to bail, the Constitution further provides that "excessive bail shall not be required." This is logical cause the imposition of an unreasonable bail may negate the very right itself. We have thus held that "where conditions imposed upon a defendant seeking bail would amount to a refusal thereof and render nugatory the constitutional right to bail, we would not hesitate to exercise our supervisory powers to provide the required remedy." 5

Coming to the issue at hand, the amount fixed for bail, while reasonable if considered in terms of surety or property bonds, may be excessive if demanded in the form of cash. A surety or property bond does not require an actual financial outlay on the part of the bondsman or the property owner, and in the case of the bondsman the bond may be obtained by the accused upon the payment of a relatively small premium. Only the reputation or credit standing of the bondsman or the expectancy of the price at which the property can be sold, is placed in the hands of the court to guarantee the production of the body of the accused at the various proceedings leading to his conviction or acquittal. Upon the other hand, the posting of a cash bond would entail a transfer of assets into the possession of the court, and its procurement could work untold hardship on the part of the accused as to have the effect of altogether denying him his constitutional right to bail.

Aside from the foregoing, the condition that the accused may have provisional liberty only upon his posting of a cash bond is abhorrent to the nature of bail and transgresses our law on the matter. The sole purpose of bail is to insure the attendance of the accused when required by the court, and there should be no suggestion of penalty on the part of the accused nor revenue on the part of the government. The allowance of a cash bond in lieu of sureties is authorized in this jurisdiction only because our rules expressly provide for it. Were this not the case, the posting of bail by depositing cash with the court cannot be countenanced because, strictly speaking, the very nature of bail presupposes the attendance of sureties to whom the body of the prisoner can be delivered. 6 And even where cash bail is allowed, the option to deposit cash in lieu of a surety bond primarily belongs to the accused. This is clearly deducible from the language of section 14 of Rule 114 of the Rules of Court:

SEC. 14. Deposit of money as bail. — At any time after the amount of bail is fixed by order, the defendant, instead of giving bail, may deposit with the nearest collector of internal revenue, or provincial, city, or municipal treasurer the sum mentioned in the order, and upon delivering to the court a proper certificate of the deposit, must be discharged from custody. Money thus deposited, shall be applied to the payment of the fine and costs for which judgment may be given; and the surplus, if any, shall be returned to the defendant.

Thus, the trial court may not reject otherwise acceptable sureties and insist that the accused obtain his provisional liberty only thru a cash bond.

But while we repudiate the particular measure adopted by the respondent judge, we cannot fault the motive that caused him to demur to the petitioner's offer of a surety bond. Based on the petitioner's past

record, 7 the range of his career in crime weighs heavily against letting him off easily on a middling amount of bail. The likelihood of his jumping bail or committing other harm to the citizenry while on provisional liberty is a consideration that simply cannot be ignored.

Fortunately, the court is not without devices with which to meet the situation. First, it could increase the amount of the bail bond to an appropriate level. Second, as part of the power of the court over the person of the accused and for the purpose of discouraging likely commission of other crimes by a notorious defendant while on provisional liberty, the latter could be required, as one of the conditions of his bail bond, to report in person periodically to the court and make an accounting of his movements. And third, the accused might be warned, though this warning is not essential to the requirements of due process, that under the 1973 Constitution 8 "Trial may proceed notwithstanding his absence provided that he has been duly notified and his failure to appear is unjustified."

With respect to the amount of the bail bond, the trial court is well advised to consider, inter alia, the following factors, where applicable: (1) the ability of the accused to give bail: (2) the nature of the offense; (3) the penalty for the offense charged; (4) the character and reputation of the accused (5) the health of the accused; (6) the character and strength of the evidence; (7) the probability of the accused's appearance or non-appearance at the trial; (8) forfeiture of previous bonds; (9) whether the accused was a fugitive from justice when arrested; and (10) whether the accused is under bond for appearance at trial in other cases. 9

It is not amiss, at this point, to remind all courts to exercise extreme care and caution in the screening of bondsmen and sureties in regard to their reputation, solvency and promptitude. Aside from the other precautions hitherto considered useful courts should see to it that all surety bonds are accompanied by corresponding clearances from the Office of the Insurance Commissioner. Bondsmen who cannot make good their undertaking render inutile all efforts at making the bail system work in this jurisdiction.

2. Anent the second issue posed by the petitioner, the amendment of the information to include allegations of habitual delinquency and recidivism, after a previous plea thereto by the accused, is valid and in no way violates his right to be fully apprised before trial of the charges against him.

Under section 13 of Rule 110 of the Rules of Court, the trial court has discretion to allow amendments to the information on all matters of form after the defendant has pleaded and during the trial when the same can be done without prejudice to the rights of the defendant. What are prohibited at this stage of the proceedings are amendments in substance. And the substantial matter in a complaint or information is the recital of facts constituting the offense charged and determinative of the jurisdiction of the court. All other matters are merely of form. 10

Under our law, a person is considered a habitual delinquent "if within a period of ten years from the date of his release or last conviction of the crimes of serious or less serious physical injuries, robo, hurto, estafa or falsification, he is found guilty of any of said crimes a third time or oftener." 11 The law imposes an additional penalty based on the criminal propensity of the accused apart from that provided by law for the last crime of which he is found guilty. Habitual delinquency is not however, a crime in itself, it is only a factor in determining a total penalty. 12 Article 62 of the Revised Penal Code which treats of habitual delinquency does not establish a new crime, but only regulates the "effect of the attendance of mitigating or aggravating circumstances and of habitual delinquency." as its caption indicates. In fact, the provision on habitual delinquency is found in a section of the Code prescribing rules for the application of penalties, not in a section defining offense.13 A recidivist, upon the other hand, is one who, at the time of his trial for one crime, shall have been previously convicted by final judgment of another crime embraced in the same title of the Revised Penal Code. Recidivism is likewise not a criminal offense; it is but one of the aggravating circumstances enumerated by the said Code. 14

The additional allegations of habitual delinquency and recidivism do not have the effect of charging another offense different or distinct from the charge of qualified theft (of a motor vehicle) contained in the

information. Neither do they tend to correct any defect in the jurisdiction of the trial court over the subject-matter of the case. The said new allegations relate only to the range of the penalty that the court might impose in the event of conviction. They do not alter the prosecution's theory of the case nor possibly prejudice the form of defense the accused has or will assume. Consequently, in authorizing the amendments, the respondent judge acted with due consideration of the petitioner's rights and did not abuse his discretion.

Anent the petitioner's claim that the amendment of the information by the State places him in double jeopardy, it should be remembered that there is double jeopardy only when all the following requisites obtain in the original prosecution; (a) a valid complaint or information; (b) a competent court; (c) the defendant had pleaded to the charge; and (d) the defendant was acquitted, or convicted, or the case against him was dismissed or otherwise terminated without his consent. 15

It is clear that the petitioner Almeda has not yet been convicted nor acquitted of the charge of qualified theft of a motor vehicle contained in the original information. Neither has the case against him been dismissed or otherwise terminated. The mere amendment of the information to include allegations of habitual delinquency and recidivism does not have the effect of a dismissal of the criminal action for qualified theft alleged in the original information. 16

It cannot likewise be said that the accused is being placed in jeopardy a second time for the past crimes of which he had been convicted. The constitutional objection, on the ground of double jeopardy, to the statute providing an additional penalty to be meted out to habitual delinquents, has long been rejected. 17

The procedure taken by the respondent fiscal and allowed by the respondent judge in the amendment of the information does not, however, merit our approbation. Under section 2 of Rule 15 of the Rules of Court, "all motions shall be made in writing except motions for continuance made in the presence of the adverse party, or those made in the course of a hearing or trial." A motion to amend the information, after the accused has pleaded thereto, is certainly one that should be placed in writing and properly set for hearing. We are loath to give our imprimatur to the kind of shortcut devised by the respondents, especially as it relates to an alteration in the information. Considering, however, that the petitioner was not deprived of his day in court and was in fact given advance warning of the proposed amendment, although orally, we refrain from disturbing the said amendment.

ACCORDINGLY, the order of the respondent judge of February 18, 1970 denying the motion of the petitioner Almeda that he be allowed to post a surety bond instead of a cash bond is hereby set aside, without prejudice, however, to increasing the amount of the bail bond and/or the imposition of such conditions as the respondent judge might consider desirable and proper for the purpose of insuring the attendance of the petitioner at the trial, provided they are consistent with the views herein expressed. No costs.

Makasiar, Esguerra, Muñoz Palma and Martin, JJ., concur.

Teehankee, J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

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

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

 

PUNO, J.:

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

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

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

Contrary to law. 2

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

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

CONTRARY TO LAW. 3

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

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

Contrary to law. 4

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

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

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

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

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

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

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

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

parents to know that she was going home that late. Leino offered to walk with her while Chapman stayed in the car and listened to the radio. 13

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

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

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

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

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

Maureen finally sat beside Leino on the sidewalk. Two (2) meters away and directly in front of them stood accused.18 For a moment, accused turned his back from the two. He faced them again and shot Leino. Leino was hit on the upper jaw, fell backwards on the sidewalk, but did not lose consciousness. Leino heard another shot and saw Maureen fall beside him. He lifted his head to see what was happening and saw accused return to his car and drive away. 19

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

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

Upon hearing the first shot, Florece went out to Caballero Street to see what was happening, while Mangubat and Cadenas peeped over the fence of their employer's house and looked out to Caballero Street. Each saw a man (Chapman) sprawled on the ground, another man (Leino) sitting on the sidewalk, a third man standing up ad holding a gun and a woman (Hultman). They saw the gunman shoot Leino and Hultman and flee aboard his Lancer car. However, because of Florece's distance from the scene of

the crime, 24 he was not able to discern the face of the gunman. He saw the control numbers of the gunman's car as 566. He described the gateway car as a box-type Lancer, its color somewhat white ("medyo maputi"). 25 Cadenas noticed in full the plate number of the getaway car and gave it as PDW 566. He described the car as silver metallic gray. 26 Both Cadenas and Mangubat saw the gunman's face. They had a good look at him. Cadenas was then a mere four (4) meters away from the gunman's car, 27 while Mangubat was about twenty (20) meters away from the scene of the crime. 28 The three confirmed that the corner of Caballero and Mahogany Streets where the shooting took place was adequately illuminated by a Meralco lamppost at the time of the incident. 29

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

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

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

SALVADOR RANIN, Chief of the Special Operations Group (SOG) of the NBI, was also tasked by then NBI Director Alfredo Lim 34 to head a team to investigate the shooting. Ranin's team immediately proceeded to the house of Jose Montaño 35 where they found ahead of them the Makati police and operatives of the Constabulary Highway Patrol. Ranin tried to verify from Mrs. Montaño whether the white Lancer car registered in the name of Mr. Montaño and bearing plate number 566 was the gunman's car. Mrs. Montaño denied and declared they had already sold the car to Saldaña Enterprises. She averred the car was being used by one Ben Conti, a comptroller in said company, who resides in Cubao, Quezon City. Mrs. Montaño called up her husband and informed him about the investigation. She also called up Conti and asked him to bring the car to the house. 36

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

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

afraid and refused to give a statement about the incident. The agents exerted every effort to convince Asliami to cooperate, assuring her of their protection. Ranin even asked a representative of the Egyptian embassy to coax Asliami to cooperate. They failed. 40

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

FINDINGS:

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

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

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

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

CT SCAN #43992 July 13, 1991

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

Anterior maxillary bone comminuted fracture.

Temporal lobe contusions with small hematomata on the right side.

Minimal subarachnoid hemorrhage.

Intact bone calvarium.

xxx xxx xxx 67

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The following day, July 17, 1991, Lim and his agents brought him to the Manila Hotel for breakfast. When they returned to the NBI, he was asked to proceed to Lim's office. On his way, he saw a lineup formed inside Lim's office. The NBI agents forced him to join the lineup and placed him in the number seven (7)

slot. He observed that the man who was to identify him was already in the room. As soon as he walked up to the lineup, Cadenas identified him as the gunman. 86

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

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

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

In February 1991, while driving his father's Lancer car, he accidentally hit a bicycle driver and two (2) trucks parked at the side of the road. The accident resulted in the death of the bicycle driver and damage to his father's car, 90especially on its body. The timing of the engine became a little off and the car was hard to start. They had the car repaired at Reliable Shop located in Banawe Street, Quezon city. After a month, he brought the car to the residence of his grandmother, Pilar Teehankee, at Dasmariñas Village, Makati. He personally started the car's engine and drove it to Makati from the shop in Quezon City. He did not bring the car to their house in Pasig for it was still scheduled for further repairs and they preferred to have the repair done in a shop in Makati. Teehankee III claimed that from that time on, he was prohibited by his father from using the car because of his careless driving. He kept the keys to the car and since he was busy in school, no further repair on said car had been made. 91

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Exhibit "1-A":

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

Exhibit "1-B"

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

Exhibit "1-C"

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

Exhibit "l-D"

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

Exhibit "1-E"

Other angles

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

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

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

Barrameda identified another news item in the July 23, 1991 issue of the Manila Times, entitled: "NBI INSISTS IT HAS "RIGHT" SUSPECT IN CHAPMAN SLAY" which was marked as Exhibit "2." Certain

portions thereof, which were not written by Barrameda, 107 were lifted by the defense and offered in evidence, viz:

Exhibit "2-a"

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

Exhibit "2-b"

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

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

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

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

Exhibit "3-a"

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

Exhibit "3-b"

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

Exhibit "3-c"

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

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

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

Exhibit "4-B"

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

Exhibit "4-C"

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

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

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

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

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

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

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

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

Exhibit "6-a"

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

Exhibit "6-b"

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

Exhibit "6-c"

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

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

Exhibit "6-d"

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

Exhibit "6-e"

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

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

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

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

Exhibit "7-c"

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

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

Exhibit "8-a"

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

Exhibit "8-c"

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

Exhibit "8-e"

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

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

Exhibit "9-a"

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

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

Exhibit "9-b"

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

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

Exhibit "10-a-1"

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

Exhibit "10-a-2"

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

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

Exhibit "22-b"

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

Exhibit "22-c"

The NBI sources said that jealousy sparked the slaying of Chapman who was killed in front of his friends on his way home from a party. The armed men, on board a white Lancer car, blocked the path of the victim's Mercedes Benz car inside the village before the shooting.

Exhibit "22-a-1"

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

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

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

Exhibit "23-a-1"

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

Exhibit "23-a-2"

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

Exhibit "23-a-3"

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

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

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

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

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

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

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

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

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

WHEREFORE, premises considered, the Court hereby renders judgment:

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

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

(3) In Criminal Case No. 91-4607, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the offense of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor, as minimum, to ten (10) years and one (1) day of prision mayor, as maximum, and to pay the said offended party the sum of Thirty Thousand Pesos (P30,000.00), Philippine Currency; plus the sum of One Hundred Eighteen Thousand Three Hundred Sixty-Nine Pesos and Eighty-Four Centavos (P118,369.84), Philippine Currency, and another sum equivalent in Philippine Pesos of U.S. $55,600.00, both as actual damages; an amount equivalent in Philippine Pesos of U.S. $40,000.00, as loss of earning capacity of said offended party; and One Million Pesos (P1,000,000.00), Philippine Currency, as moral, moderate and exemplary damages.

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

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

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

SO ORDERED.

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

Accused interposed the present appeal. 140 He contends that:

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

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

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

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

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

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

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

We shall discuss these alleged errors in seriatim.

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

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

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

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

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

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

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

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

xxx xxx xxx

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

Out-of-court identification is conducted by the police in various ways. It is done thru show-ups where the suspect alone is brought face to face with the witness for identification. It is done thru mug shots where photographs are shown to the witness to identify the suspect. It is also done thru line-ups where a witness identifies the suspect from a group of persons lined up for the purpose. Since corruption of out-of-court identification contaminates the integrity of in-court identification during the trial of the case, courts have fashioned out rules to assure its fairness and its compliance with the requirements of constitutional due process. In resolving the admissibility of and relying on out-of-court identification of suspects, courts have adopted the totality of circumstances test where they consider the following factors, viz: (1) the witness' opportunity to view the criminal at the time of the crime; (2) the witness' degree of attention at that time; (3) the accuracy of any prior description given by the witness; (4) the level of certainty demonstrated by the witness at the identification; (5) the length of time between the crime and the identification; and, (6) the suggestiveness of the identification procedure. 143

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

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

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

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

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

We are not likewise impressed with the contention that it was incredible for Leino to have remembered appellant's face when the incident happened within a span of five (5) minutes. Five (5) minutes is not a short time for Leino to etch in his mind the picture of appellant. Experience shows that precisely because of the unusual acts of bestiality committed before their eyes, eyewitnesses, especially the victims to a crime, can remember with a high degree of reliability the identity of criminals. 151 We have ruled that the natural reaction of victims of criminal violence is to strive to see the appearance of their assailants and observe the manner the crime was committed. Most often, the face end body movements of the assailant create an impression which cannot be easily erased from their memory. 152 In the case at bar, there is absolutely no improper motive for Leino to impute a serious crime to appellant. The victims and appellant were unknown to each other before their chance encounter. If Leino identified appellant, it must be because appellant was the real culprit.

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

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

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

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

II

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

First, he claims the trial court erred in citing in its Decision his involvement in previous shooting incidents for this contravenes the rule 157 that evidence that one did or omitted to do a certain thing at one time is not admissible to prove that he did or omitted to do the same or similar thing at another time. Second, the NBI failed to conduct an examination to compare the bullets fired from the gun at the scene of the crime with the bullets recovered from the body of Chapman. Third, the prosecution eyewitnesses described the gunman's car as white, but the trial court found it to be silver mettalic gray. Fourth, appellant could not have been the gunman for Mangubat, in his statement dated July 15, 1991, said that he overheard the victim Maureen Hultman plead to the gunman, thus: "Please, don't shoot me and don't kill me. I promise Mommy, Daddy." Appellant also contends that a maid in a house near the scene of the crime told Makati police Alberto Fernandez that she heard Maureen say: "Daddy don't shoot. Don't." Fifth, the NBI towed accused's car from Dasmariñas Village to the NBI office which proved that the same was not in good running condition. Lastly, the result of the paraffin test conducted on appellant showed he was negative of nitrates.

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

We reject appellant's thesis as bereft of merit.

Appellant cannot hope to exculpate himself simply because the trial judge violated the rule on res inter alios actawhen he considered his involvement in previous shooting incidents. This stance is a specie of a mid-1800 rule known as the English Exchequer Rule pursuant to which "a trial court's error as to the admission of evidence was presumed to have caused prejudice and therefore, almost automatically required a new trial." 158 The Exchequer rule has long been laid to rest for even English appellate courts now disregard an error in the admission of evidence "unless in its opinion, some substantial wrong or miscarriage (of justice) has been occasioned." 159 American courts adopted this approach especially after the enactment of a 1915 federal statute which required a federal appellate court to "give judgment after

an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which do not affect the substantial rights of the parties." 160 We have likewise followed the harmless error rule in our jurisdiction. In dealing with evidence improperly admitted in trial, we examine its damaging quality and its impact to the substantive rights of the litigant. If the impact is slight and insignificant, we disregard the error as it will not overcome the weight of the properly admitted evidence against the prejudiced party. 161

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

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

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

Nor are we impressed by the alleged discrepancies in the eyewitnesses' description of the color of the gunman's car. Leino described the car as light-colored; Florece said the car was somewhat white ("medyo puti"); 163 Mangubat declared the car was white; 164 and Cadenas testified it was silver metallic gray. 165 These alleged discrepancies amount to no more than shades of differences and are not meaningful, referring as they do to colors white, somewhat white and silver metallic gray. Considering the speed and shocking nature of the incident which happened before the break of dawn, these slight discrepancies in the description of the car do not make the prosecution eyewitnesses unworthy of credence.

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

Appellant cannot also capitalize on the paraffin test showing he was negative of nitrates. Scientific experts concur in the view that the paraffin test has ". . . proved extremely unreliable in use. The only thing that it can definitely establish is the presence or absence of nitrates or nitrites on the hand. It cannot be established from this test alone that the source of the nitrates or nitrites was the discharge of a firearm. The person may have handled one or more of a number of substances which give the same positive reaction for nitrates or nitrites, such as explosives, fireworks, fertilizers, pharmaceuticals, and leguminous plants such as peas, beans, and alfalfa. A person who uses tobacco may also have nitrate or nitrite deposits on his hands since these substances are present in the products of combustion of tobacco." 169 In numerous rulings, we have also recognized several factors which may bring about the absence of gunpowder nitrates on the hands of a gunman, viz: when the assailant washes his hands after firing the gun, wears gloves at the time of the shooting, or if the direction of a strong wind is against the gunman at the time of firing. 170 In the case at bar, NBI Forensic Chemist, Leonora Vallado, testified and

confirmed that excessive perspiration or washing of hands with the use of warm water or vinegar may also remove gunpowder nitrates on the skin. She likewise opined that the conduct of the paraffin test after more than seventy-two (72) hours from the time of the shooting may not lead to a reliable result for, by such time, the nitrates could have already been removed by washing or perspiration. 171 In the Report 172 on the paraffin test conducted on appellant, Forensic Chemist Elizabeth Ayonon noted that when appellant was tested for the presence of nitrates, more than 72 hours has already lapsed from the time of the alleged shooting.

III

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

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

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

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

incapable of change even by evidence presented during the trial. Appellant has the burden to prove this actual bias and he has not discharged the burden.

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

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

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

2. During the testimony of Domingo Florece, an argument ensued between the defense lawyer and the fiscal. When part of the audience clapped their hands, the defense counsel invoked Rule 119, Section 13 of the Rules of Court and moved for the exclusion of the public. Assistant Prosecutor Villa-Ignacio objected on the ground that the public was not unruly. The trial judge noted that there were yet no guidelines drafted by the Supreme Court regarding media coverage of the trial proceedings. 178 Collaborating defense counsel, Atty. Malvar, complained that the outpouring of sympathy by spectators inside the courtroom has turned the proceedings into a carnival. He also manifested that he personally saw that when accused was being brought back to his cell from the courtroom, a group of young people were pointing dirty fingers at accused in full view of policemen. Forthwith, the trial judge declared that he could not be dissuaded by public sentiments. He noted that the clapping of hands by the public was just a reaction at the spur of the moment. He then admonished the audience not to repeat it. 179

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

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

5. At the September 8, 1992 hearing, the trial judge again gave the media two (2) minutes to take pictures before the trial proper. Afterwards, the reporters were duly

admonished to remain silent, to quietly observe the proceedings and just take down notes. 183

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

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

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

IV

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

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

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

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

As to the wounding of Jussi Leino and the killing of Maureen Hultman, we hold that treachery clearly attended the commission of the crimes. The evidence shows that after shooting Chapman in cold blood, appellant ordered Leino to sit on the pavement. Maureen became hysterical and wandered to the side of appellant's car. When appellant went after her, Maureen moved around his car and tried to put some

distance between them. After a minute or two, appellant got to Maureen and ordered her to sit beside Leino on the pavement. While seated, unarmed and begging for mercy, the two were gunned down by appellant. Clearly, appellant purposely placed his two victims in a completely defenseless position before shooting them. There was an appreciable lapse of time between the killing of Chapman and the shooting of Leino and Hultman — a period which appellant used to prepare for a mode of attack which ensured the execution of the crime without risk to himself. Treachery was thus correctly appreciated by the trial court against appellant insofar as the killing of Hultman and the wounding of Leino are concerned.

V and VI

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

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

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

2. For the murder of Maureen Navarro Hultman, appellant was sentenced to pay the heirs of the deceased the sum of: Fifty Thousand Pesos (P50,000.00) as indemnity for death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos(P2,350,461.83) as actual damages; Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased; and, One Million Pesos as moral, moderate and exemplary damages.

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

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

5. Costs of litigation. 188

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

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

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

The general rule in the Civil Code is that:

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

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

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

(1) The defendant shall be liable for the loss of the earning capacity of the deceased, and the indemnity shall be paid to the heirs of the latter; such indemnity shall in every case be assessed and awarded by the court, unless the deceased on account of permanent physical disability not caused by the defendant, had no earning capacity at the time of his death;

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

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

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

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

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

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

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

2. As indemnity for loss of earning capacity of the deceased — an amount to be fixed by the court according to the circumstances of the deceased related to his actual income at the time of death and his probable life expectancy, the said indemnity to be assessed and awarded by the court as a matter of duty, unless the deceased had no earning capacity at said time on account of permanent disability not caused by the accused. If the deceased was obliged to give support, under Art. 291, Civil Code, the recipient who is not an heir, may demand support from the accused for not more than five years, the exact duration to be fixed by the court.

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

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

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

6. Interests in the proper cases.

7. It must be emphasized that the indemnities for loss of earning capacity of the deceased and for moral damages are recoverable separately from and in addition to the fixed sum of P12,000.00 (now P50,000.00) corresponding to the indemnity for the sole fact of death, and that these damages may, however, be respectively increased or lessened according to the mitigating or aggravating circumstances, except items 1 and 4 above, for obvious reasons. 191

We shall first review the damages awarded to the heirs of ROLAND JOHN CHAPMAN in light of the law and the case law.

Appellant claims that the award of Five Hundred Thousand (P500,000.00) pesos as moderate or temperate and exemplary damages to the heirs of Roland John Chapman was baseless.

We start with the observation that the trial court should not have lumped together the awards for moderate or temperate and exemplary damages at Five Hundred Thousand Pesos (P500,000.00), without specifying the particular amount which corresponds to each, as they are of a different kind. We shall, however, consider their propriety and reasonableness.

The amount of Five Hundred Thousand (P500,000.00) pesos cannot be given as temperate or moderate damages for the records do not show any basis for sustaining the award. Nor can it be given as exemplary damages. The killing of Chapman was not attended by either evident premeditation or treachery. Be that as it may, the award can be considered as one for moral damages under Article 2206 (3) of the New Civil Code. 192 It states:

Art. 2206. The amount of damages for death caused by a crime . . . shall be at least (fifty thousand pesos, under current jurisprudence) . . . In addition:

xxx xxx xxx

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

Moreover, considering the shocking and senseless aggression committed by appellant, we increase the amount of moral damages to One Million (P1,000,000.00) pesos for the death of Chapman.

We next rule on the legality of damages awarded to the heirs of MAUREEN NAVARRO HULTMAN.

Appellant argues that the damages for the death of Maureen should be awarded to her mother, Vivian Hultman, and her natural father. He contends that under Article 352 of the New Civil Code, Anders Hultman as adoptive father of Maureen, is not entitled to said award. Only the parents by nature of Maureen should inherit from her.

We reject the argument. Under the Family Code which was already in effect at the time of Maureen's death, Anders Hultman, as adoptive father, is entitled to the award made by the trial court. Article 190 of the Family Code provides:

xxx xxx xxx

(2) When the parents, legitimate or illegitimate, or the legitimate descendants of the adopted concur with the adopters, they shall divide the entire estate, one-half to be inherited by the parents or ascendants and the other half, by the adopters;

xxx xxx xxx

(5) When only the adopters survive, they shall inherit the entire estate;

It does not appear on the records whether Maureen was survived by her natural father. During the trial of these cases, only Vivian and Anders Hultman testified on their claim of damages. Hence, we find that the award of damages in their favor has sufficient factual and legal basis.

Appellant also urges that the award to the heirs of Maureen Hultman of One Million Pesos (P1,000,000.00) as moral and exemplary damages is unjustified or, at the very least, exorbitant and should be reduced.

We hold that the award of One Million (P1,000,000.00) pesos is amply justified by the circumstances. The records reveal that Maureen recovered between life and death for ninety-seven (97) days. Her family experienced the peaks and valleys of unspeakable suffering. During that time, she underwent brain surgery three (3) times. Her condition was never stable and remained critical. It was always touch and go with death. She could not be left alone at the hospital. Her parents had to be perpetually by her side at least six (6) to seven (7) hours daily. After the shooting, their siblings had to be sent back to Sweden for their safety. Left unattended, her family's business took a downspin. Soon, her family's assets were depleted, then wiped out. A total of twenty-three (23) doctors attended to her and their bills ballooned without abatement. They were forced to rely on the goodness of the gracious. Her family started receiving contributions from other people to defray the medical expenses and hospital bills. 193Maureen never regained consciousness until her demise on October 17, 1991, at the tender age of seventeen. Under the foregoing circumstances, we thus find the award of One Million Pesos (P1,000,000.00) as moral damages to be reasonable.

Moreover, we find that the grant of exemplary damages is called for by the circumstances of the case. Under Article 2229 of the Civil Code, 194 in addition to the award of moral damages, exemplary or corrective damages may be adjudged in order to deter the commission of similar acts in the future. The award for exemplary damages is designed to permit the courts to mould behavior that has socially deleterious consequences. Its imposition is required by public policy to suppress the wanton acts of an offender.

In the case at bar, appellant's unprovoked aggression snuffed the life of Maureen Hultman, a girl in the prime of her youth. Hultman and her companions were gunned down by appellant in cold-blood, for no apparent reason. Appellant's vicious criminality led to the suffering of his victims and their families. Considering our soaring crime rate, the imposition of exemplary damages against appellant to deter others from taking the lives of people without any sense of sin is proper. Moreover, since the killing of Hultman was attended by treachery and pursuant to Article 2229 of the new Civil Code, 195 we impose an award of Two Million (P2,000,000.00) pesos as exemplary damages against appellant for the death of Maureen Hultman.

We now review the award of One Million Pesos (P1,000,000.00) as moral, moderate and exemplary damages to victim JUSSI LEINO.

From the record, it is incontrovertible that Leino likewise suffered extensive injuries as a result of the shooting. His upper jaw bone was shattered. He would need a bone transplant operation to restore it. His tongue was also injured. He partially lost his sense of taste for his taste buds were also affected. When he was discharged from the hospital, he had difficulty in speaking and had to be fed through a tube running down his nose. He lost eight of his teeth. The roots of his teeth were cut off and the raw nerves were exposed. But all these speak only of his physical injuries and suffering. More devastating was the emotional strain that distressed Leino. His parents were in Europe for a vacation at the time of the shooting. Only a neighbor attended to him at the hospital. It took two (2) days for his father to come and comfort by his bedside. Leino had trouble sleeping in peace at night. The traumatic event woke him up in the middle of the night. Black memories of the incident kept coming back to mind. 196 Understably, the ill-effects of the incident spilled over his family. Seppo Leino, Jussi's father, was tortured by thoughts of insecurity. He had to relocate his entire family to Europe where he felt they would be safe. 197 Under the foregoing circumstances, we find that an award of One Million (P1,000,000.00) pesos to Jussi Leino as indemnity for moral damages is justified and reasonable.

As in the case of Hultman, since the shooting of Leino was committed with treachery and pursuant to Article 2229 of the New Civil Code, 198 appellant is additionally adjudged liable for the payment to Leino of Two Million (P2,000,000.00) pesos as exemplary damages.

We come now to the trial court's monetary award to compensate the LOSS OF EARNING CAPACITY OF VICTIMS JUSSI LEINO and MAUREEN HULTMAN.

To be compensated for loss of earning capacity, it is not necessary that the victim, at the time of injury or death, is gainfully employed. Compensation of this nature is awarded not for loss of earnings but for loss of capacity to earn money. In Cariaga v. Laguna Tayabas Bus Company, 199 we awarded to the heirs of Cariaga a sum representing loss of his earning capacity although he was still a medical student at the time of injury. However, the award was not without basis for Cariaga was then a fourth year medical student at a reputable school; his scholastic record, which was presented at the trial, justified an assumption that he would have been able to finish his course and pass the board in due time; and a doctor, presented as witness for the appellee, testified as to the amount of income Cariaga would have earned had he finished his medical studies.

In the case at bar, the trial court awarded the amount, equivalent in Philippine pesos, of Forty capacity of JUSSI LEINO. We agree with appellant that this amount is highly speculative and should be denied considering that Leino had only earned a high school degree at the International School, Manila, in 1989. He went back to Finland to serve the military and has just arrived in Manila in February 1991 to pursue his ambition to become a pilot. At the time of the shooting on July 13, 1991, he has just enrolled at the Manila Aero Club to become a professional pilot. He was thus only on his first year, first semester, in said school and was practically, a mere high school graduate. Under the foregoing circumstances, we find the records wanting with substantial evidence to justify a reasonable assumption that Leino would have been able to finish his studies at the Manila Aero Club and ultimately become a professional pilot.

We now pass upon the propriety of the award of Thirteen Million Pesos (P13,000,000.00) for loss of earning capacity of deceased MAUREEN HULTMAN. We find that the award is not supported by the records.

In adjudging an award for Maureen's loss of earning capacity, the trial court incorrectly used the monthly salary of a secretary working in Sweden, computed at two thousand dollars ($2,000.00) a month, as per the estimate given by Anders Hultman. Nowhere in the records does it appear that, at the time of her death, Maureen had acquired the skills needed for a secretarial job or that she intended to take a secretarial course in preparation for such job in Sweden. Anders Hultman himself testified that there was uncertainty as to Maureen's future career path, thus:

ATTY. VINLUAN:

Q Mr. Witness, if Maureen would not been (sic) shot and she continued her studies, what professional career would she (sic) like to pursue considering her interests and inclinations?

WITNESS:

A That is very difficult to say. She has just turned 17 and our projection is that, certainly she would have been an artist in the creative side. She would have become an actress or a movie producer or probably she would have been a college graduate.

ATTY. VINLUAN:

Q But if you would just say based on the salary of a secretary in Sweden, how much would she have much earned?

A. Not less than Two Thousand Dollars a month. 200

Clearly, there is no factual basis for the award of thirteen million (P13,000,000.00) pesos to the heirs of Maureen far loss of earning capacity as a probable secretary in Sweden.

In any event, what was proved on record is that after graduating from high school, Maureen took up a short personality development course at the John Roberts Powers. Maureen was employed at the John Roberts Powers at the time of her death. It was her first job. In fact, she had just received her first salary, for which reason she went out with her friends to celebrate on that fateful day. However, neither the nature of her work nor her salary in said company was disclosed at the trial. Thus, to compute the award for Maureen's loss of earning capacity, we are constrained to use the minimum wage prevailing as of the date of her death (October 17, 1991), i.e., one hundred eighteen pesos (P118.00). 201 Allowing for reasonable and necessary expenses in the amount of P19,800.00, her net incomeper annum would amount to P26,859.17. 202 Hence, using the formula repeatedly adopted by this Court: 203 (2/3 x [80 — age of victim at time of death]) x a reasonable portion of the net income which would have been received by the heirs as support, 204we fix the award for loss of earning as capacity of deceased Maureen Hultman at Five Hundred Sixty-Four Thousand Forty-Two Pesos and Fifty-Seven Centavos (P564,042.57).

It also bears emphasis that in the computation of the award for loss of earning capacity of the deceased, the life expectancy of the deceased's heirs is not factored in. The rule is well-settled that the award of damages for death is computed on the basis of the life expectancy of the deceased, and not the beneficiary. 205

Lastly, appellant seeks a reduction of the award of attorney's fees in the amount of Three Million Pesos (P3,000,000.00), claiming that the same is exorbitant.

We disagree. The three (3) private complainants were represented by the ACCRA law firm, with Atty. Rogelio Vinluan as lead counsel. They agreed to pay the amount of One Million (P1,000,000.00) pesos each as attorney's fees and for litigation expenses. The three criminal cases were consolidated. A continuous trial was conducted, with some hearings having both morning and afternoon sessions. The trial lasted for almost one and a half years. More than forty (40) witnesses testified during the hearings. Several pleadings were prepared and filed. A total of sixty-eight (68) documentary exhibits were presented by the prosecution. Incidents related to the trial of the cases came up to this Court for review at least twice during the pendency of the trial. 206 Given these circumstances and the evident effort exerted by the private prosecutor throughout the trial, the trial court's award of a total of Three Million (P3,000,000.00) pesos as attorney's fees and litigation expenses appears just and reasonable.

VII

In his last assigned error, appellant urges that the hearings conducted on the cases, where no less than forty-one (41) witnesses were presented by the parties, 207 were merely hearings on the petition for bail concerning the murder charge for the killing of Roland Chapman, and not a trial on the merits of all three (3) cases. Appellant insists that after the termination of the hearing, he still had the right to adduce evidence at the trial proper. He claims he was denied due process when the trial court considered all the cases submitted for decision after the defense waived its right to present its surrebuttal evidence.

Appellant's position is untenable. This issue was resolved at the very first hearing of the cases on August 9, 1991. The incident then pending was appellant's petition for bail for the murder of Chapman. It will be remembered that, initially, there was only one murder charge against appellant since Maureen Hultman succumbed to death during the course of the proceedings on October 17, 1991.

Thus, at the initial hearing on August 9, 1991, the incident for resolution was appellant's petition for bail. The prosecution sought to present the surviving victim, Jussi Leino, to testify on all three (3) charges to obviate delay and inconvenience since all three (3) charges involved one continuing incident. Appellant, through counsel, objected to the testimony of Leino insofar as the two (2) frustrated murder charges (with respect to the wounding of Leino and Hultman) were concerned. He argued that since the pending

incident was the petition for bail with respect to the killing of Chapman, any testimony relative to the two (2) other charges in which bail were recommended was irrelevant.

After arguments, the defense suggested that if the prosecution would present Leino to testify on all three (3) charges, it should wait until after accused's arraingment on August 14, 1991. 208 The prosecution agreed on the condition that there shall be trial on the merits and, at the same time, hearing on the petition for bail. Defense counsel agreed.209

As agreed upon, accused was arraigned and the prosecution presented Jussi Leino as its first witness to testify on all three (3) cases. No objection was made by the defense. 210

Subsequent proceedings likewise disprove appellant's insistence that the hearings conducted by the trial court were limited to the petition for bail, viz:

1. The prosecution presented all their witnesses and documentary evidence relative to the shooting incident, including evidence in support of the claim for damages. These witnesses were extensively cross-examined by the defense counsels. The defense never objected that evidence on damages would be unnecessary if its intention was really to limit presentation of evidence to appellant's petition for bail.

2. After the prosecution and the defense rested their cases, the trial court issued an Order 211 directing the parties to submit their Memorandum, after which "the main case as well as the petition for bail are respectively submitted for Decision and Resolution." After receipt of this Order, the defense counsel filed two (2) motions for extension of time to file the defense Memorandum. In both Motions, the defense did not object to the trial court's Order submitting for decision the main case and the petition for bail. Neither did it move for a reconsideration of this Order and notify the court that it still had witnesses to present.

3. In compliance with said Order, appellant's counsel, Atty. Rodolfo Jimenez, filed a Memorandum and Supplemental Memorandum praying for accused's acquittal. This is inconsistent with the defense's position that the hearing conducted was only on the petition for bail. If the defense insist that what was submitted for decision was only his petition for bail, he would have only prayed that he be granted bail.

4. Upon receipt of the notice of promulgation of judgment from the trial court, the defense did not interpose any objection to the intended promulgation. In fact, the defense attended the promulgation of the Decision and manifested that they were ready therefor.

All these clearly show that the merits of the cases and the petition for bail were heard simultaneously and appellant acquiesced thereto. Moreover, appellant's right to present additional evidence was not abridged by the trial court. On the contrary, the records disclose that the trial court afforded the defense fair opportunity to adduce its evidence. It took the defense almost one and a half years to submit its evidence. The defense presented more than twenty (20) witnesses and several documentary evidence. It was only after the trial court rendered a decision against appellant that he filed a motion for newtrial, 212 through his new counsel, Atty. Gatmaytan, Jr. For the first time, he alleged that the joint decision of the cases, both on the merits and on the petition for bail, was irregular for he was not given a chance to present further evidence to corroborate his alibi. We note that in his motion for new trial, 213 appellant did not even identify his alleged additional witnesses and the substance of their testimonies. Nor was it shown that he could not have produced these evidence at the trial with reasonable diligence. Appellant's motion was a patent ploy to delay the decision on his cases. His motion was properly denied by the trial court.

IN VIEW WHEREOF, we hereby AFFIRM WITH MODIFICATIONS the Decision of the trial court, dated December 22, 1992, thus:

(1) In Criminal Case No. 91-4605, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Homicide for the shooting of Roland John Chapman, and sentencing said accused to suffer an indeterminate penalty of imprisonment of eight (8) years and one (1) day of prision mayor as minimum to fourteen (14) years, eight (8) months and one (1) day of reclusion temporal as maximum, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for the victim's death; and, One Million (P1,000,000.00) pesos as moral damages.

(2) In Criminal Case No. 91-4606, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Murder, qualified by treachery, for the shooting of Maureen Navarro Hultman, and sentencing him to suffer imprisonment of reclusion perpetua, and to pay the heirs of the said deceased the following amounts: Fifty Thousand (P50,000.00) pesos as indemnity for her death; Two Million Three Hundred Fifty Thousand Four Hundred Sixty-One Pesos and Eighty-Three Centavos (P2,350,461.83) as actual damages; Five Hundred Sixty-Four Thousand Fourty-Two Pesos and Fifty-Seven Centavos (P564,042.57) for loss of earning capacity of said deceased; One Million Pesos (P1,000,000.00) as moral damages; and Two Million (P2,000,000.00) pesos as exemplary damages.

(3) In Criminal Case No. 91-4807, finding accused Claudio J. Teehankee, Jr., guilty beyond reasonable doubt of the crime of Frustrated Murder, qualified by treachery, for the shooting of Jussi Olavi Leino, and sentencing him to suffer the indeterminate penalty of eight (8) years of prision mayor as minimum, to fourteen (14) years and eight (8) months of reclusion temporal as maximum, and to pay the said offended party the following amounts: (P30,000.00) pesos as Thirty Thousand (P30,000.00) pesos as indemnity for his injuries; One Hundred Eighteen Thousand Three Hundred Sixty-Nine pesos and Eighty-Four Centavos (P118,369.84) and equivalent in Philippine Pesos of U.S.$55,600.00, both as actual damages; One Million (P1,000,000.00) pesos as moral damages; and, Two Million (P2,000,000.00) pesos as exemplary damages.

(4) In all three cases, ordering said accused to pay each of the three (3) offended parties the sum of One Million Pesos (P1,000,000.00; or a total of Three Million [P3,000,000.00] pesos] for attorney's fees and expenses of litigation; and

(5) To pay the costs in all three (3) cases.

SO ORDERED.

Regalado, Mendoza and Francisco, JJ., concur.

Narvasa, C.J., is on leave.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-5371             March 26, 1953

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.AQUINO MINGOA, defendant-appellant.

Marcelino Lontok for appellant.Office of the First Assistant Solicitor General Ruperto Kapunan, Jr. and Solicitor Federico V. Sian for appellee.

REYES, J.:

Found short in his accounts as officer-in-charge of the office of the municipal treasurer of Despujols, Romblon, and unable to produce the missing fund amounting to P3,938 upon demand by the provincial auditor, the defendant Aquino Mingoa was prosecuted for the crime of malversation of public funds in the Court of First Instance of Romblon, and having been found guilty as charged and sentenced to the corresponding penalty, he appealed to the Court of Appeals. But that court certified the case here on the ground that it involved a constitutional question.

The evidence shows that it is not disputed that upon examination of his books and accounts on September 1, 1949, defendants, as accountable officer, was found short in the sum above-named and that, required to produce the missing fund, he was not able to do so. He explained to the examining officer that some days before he had, by mistake, put the money in a large envelope which he took with him to show and that he forgot it on his seat and it was not there anymore when he returned. But he did not testify in court and presented no evidence in his favor.

We agree with the trial judge that defendant's explanation is inherently unbelievable and cannot overcome the presumption of guilt arising from his inability to produce the fund which was found missing. As His Honor observes, if the money was really lost without defendant's fault, the most natural thing for him to do would be to so inform his superiors and apply for release from liability. But this he did not do. Instead, he tried to borrow to cover the shortage. And on the flimsy excuse that he preferred to do his own sleuthing, he even did not report the loss to the police. Considering further as the prosecution points out in its brief, that defendant had at first tried to avoid meeting the auditor who wanted to examine his accounts, and that for sometime before the alleged loss many teachers and other employees of the town had not been paid their salaries, there is good ground to believe that defendant had really malversed the fund in question and that his story about its loss was pure invention.

It is now contended, however, that lacking direct evidence of actual misappropriation the trial court convicted defendant on mere presumptions, that is, presumptions of criminal intent in losing the money under the circumstances alleged and presumptions of guilt from the mere fact that he failed, upon demand to produce the sum lacking. The criticism as to the first presumption is irrelevant, for the fact is that trial court did not believe defendant's explanation that the money was lost, considering it mere cloak to cover actual misappropriation. That is why the court said that "whether or not he (defendant) is guilty of malversation for negligence is of no moment . . . " And as to the other presumption, the same is authorized by article 217 of the Revised Penal Code, which provides:

The failure of a public officer to have duly forthcoming any public funds or property with which he is chargeable, upon demand by any duly authorized officer, shall be prima facie evidence that he has put such missing funds or property to personal use.

The contention that this legal provision violates the constitutional right of the accused to be presumed innocent until the contrary is proved cannot be sustained. The question of the constitutionality of the statute not having been raised in the court below, it may not be considered for the first time on appeal. (Robb vs. People, 68 Phil., 320.)

In many event, the validity of statutes establishing presumptions in criminal cases is now settled matter, Cooley, in his work on constitutional limitations, 8th ed., Vo. I, pp. 639-641says that "there is no constitutional objection to the passage of law providing that the presumption of innocence may be overcome by contrary presumption founded upon the experience of human conduct, and enacting what evidence shall be sufficient to overcome such presumption of innocence." In line with this view, it is generally held in the United States that the legislature may enact that when certain facts have been proven they shall be prima facie evidence of the existence of the guilt of the accused and shift the burden of proof provided there be rational connection between that facts proved and the ultimate fact presumed so that the inference of the one from proof of the others is not unreasonable and arbitrary because of lack of connection between the two in common experience. (See annotation on constitutionality of statutes or ordinances making one fact presumptive or prima facie evidence of another, 162 A.L.R. 495-535; also, State vs. Brown, 182 S.E., 838, with reference to embezzlement.) The same view has been adopted here as may be seen from the decisions of this court in the U.S. vs. Tria, 17 Phil., 303; U.S. vs. Luling, 34 Phil., 725; and People vs. Merilo, G.R. No. L-3489, promulgated June 28, 1951.

The statute in the present case creates a presumption of guilt once certain facts are proved. It makes the failure of public officer to have duly forthcoming, upon proper demaand, any public funds or property with which he is chargeable prima facie evidence that he has put such missing funds or property to personal use. The ultimate fact presumed is that officer has malversed the funds or property entrusted to his custody, and the presumption is made to arise from proof that he has received them and yet he has failed to have them forthcoming upon proper demand. Clearly, the fact presumed is but a natural inference from the fact proved, so that it cannot be said that there is no rational connection between the two. Furthermore, the statute establishes only a prima facie presumption, thus giving the accused an opportunity to present evidence to rebut it. The presumption is reasonable and will stand the test of validity laid down in the above citations.

There being no reversible error in the decision appealed from, the same is hereby affirmed, with costs.

Paras, C.J., Feria, Pablo, Bengzon, Padilla, Tuason, Montemayor, Jugo, Bautista Angelo and Labrador, JJ., concur

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-2809             March 22, 1950

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FRISCO HOLGADO, defendant-appellant.

Mauricio Carlos for appellant.Assistant Solicitor General Manuel P. Barcelona and Solicitor Felix V. Makasiar for appellee.

MORAN, C.J.:

Appellant Frisco Holgado was charged in the court of First Instance of Romblon with slight illegal detention because according to the information, being a private person, he did "feloniously and without justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero Holgado for about eight hours thereby depriving said Artemia Fabreag of her personal liberty." On may 8, 1948, the day set for the trial, the trial court proceeded as follows:

Court:

        Is this the case ready for trial?

Fiscal:

        I am ready, your honor.

Court: — to the accused.

Q. do you have an attorney or are you going to plead guilty? — A. I have no lawyer and I will plead guilty.

Court:

        Arraign the accused.

Note:

        Interpreter read the information to the accused in the local dialect after which he was asked this question.

Q. What do you plead? — A. I plead guilty, but I was instructed by one Mr. Ocampo.

Q. Who is that Mr. Ocampo, what is his complete name? — A. Mr. Numeriano Ocampo.

        The provincial fiscal is hereby ordered to investigate that man.

Fiscal:

        I have investigated this case and found out that this Ocampo has nothing to do with the case and I found no evidence against this Ocampo.

Court:

        Sentenced reserved.

Two days later, or on May 10, 1948, the trial court rendered the following judgment:

[Criminal Case No. V-118]THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FRISCO HOLGADO defendant-appellant.

SLIGHT ILLEGAL DETENTION

SENTENCE

The accused, Frisco Holgado, stands charged with the crime of kidnapping and serious illegal detention in the following

INFORMATION

That on or about December 11, 1947, in the municipality of Concepcion, Province of Romblon, Philippines and within the jurisdiction of this Honorable Court, the said accused being a private individual, did then and there wilfully, unlawfully and feloniously, and without justifiable motive, kidnap and detain one Artemia Fabreag in the house of Antero Holgado for about 8 hours thereby depriving said Artemia Fabreag of her personal liberty.

Contrary to law.

This case is called for trial on May 8, 1948. Upon arraignment the accused pleaded guilty to the information above described.

The offense committed by the accused is kidnapping and serious illegal detention as defined by article 267 of the Revised Penal Code as amended by section 2 of Republic Act No. 18 and punished by reclusion temporal in it minimum period to death. Applying indeterminate sentence law the penalty shall be prision mayor in its maximum degree to reclusion temporal in the medium degree as minimum, or ten years (10) and one (1) day of prision mayor to twenty (20) years, with the accessory penalties provided for by law, with costs. The accused is entitled to one-half of his preventive imprisonment.

It must be noticed that in the caption of the case as it appears in the judgment above quoted, the offense charged is named SLIGHT ILLEGAL DETENTION while in the body of the judgment if is said that the accused "stands charged with the crime of kidnapping and serious illegal detention." In the formation filed by the provincial fiscal it is said that he "accuses Frisco Holgado of the crime of slight illegal detention." The facts alleged in said information are not clear as to whether the offense is named therein or capital offense of "kidnapping and serious illegal detention" as found by the trial judge in his judgment. Since the accused-appellant pleaded guilty and no evidence appears to have been presented by either party, the trial judge must have deduced the capital offense from the facts pleaded in the information.

Under the circumstances, particularly the qualified plea given by the accused who was unaided by counsel, it was not prudent, to say the least, for the trial court to render such a serious judgment finding

the accused guilty of a capital offense, and imposing upon him such a heavy penalty as ten years and one day of prision mayor to twenty years, without absolute any evidence to determine and clarify the true facts of the case.

The proceedings in the trial court are irregular from the beginning. It is expressly provided in our rules of Court, Rule 112, section 3, that:

If the defendant appears without attorney, he must be informed by the court that it is his right to have attorney being arraigned., and must be asked if he desires the aid of attorney, the Court must assign attorneyde oficio to defend him. A reasonable time must be allowed for procuring attorney.

Under this provision, when a defendant appears without attorney, the court has four important duties to comply with: 1 — It must inform the defendant that it is his right to have attorney before being arraigned; 2 — After giving him such information the court must ask him if he desires the aid of an attorney; 3 — If he desires and is unable to employ attorney, the court must assign attorney de oficio to defend him; and 4 — If the accused desires to procure an attorney of his own the court must grant him a reasonable time therefor.

Not one of these duties had been complied with by the trial court. The record discloses that said court did not inform the accused of his right to have an attorney nor did it ask him if he desired the aid of one. The trial court failed to inquire whether or not the accused was to employ an attorney, to grant him reasonable time to procure or assign an attorney de oficio. The question asked by the court to the accused was "Do you have an attorney or are you going to plead guilty?" Not only did such a question fail to inform the accused that it was his right to have an attorney before arraignment, but, what is worse, the question was so framed that it could have been construed by the accused as a suggestion from the court that he plead guilt if he had no attorney. And this is a denial of fair hearing in violation of the due process clause contained in our Constitution.

One of the great principles of justice guaranteed by our Constitution is that "no person shall be held to answer for a criminal offense without due process of law", and that all accused "shall enjoy the right to be heard by himself and counsel." In criminal cases there can be no fair hearing unless the accused be given the opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of the law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio if he so desires and he is poor grant him a reasonable time to procure an attorney of his own.

It must be added, in the instant case, that the accused who was unaided by counsel pleaded guilty but with the following qualification: "but I was instructed by one Mr. Ocampo." The trial court failed to inquire as to the true import of this qualification. the record does not show whether the supposed instructions was real and whether it had reference to the commission of the offense or to the making of the plea guilty. No investigation was opened by the court on this matter in the presence of the accused and there is now no way of determining whether the supposed instruction is a good defense or may vitiate the voluntariness of the confession. Apparently the court became satisfied with the fiscal's information that he had investigated Mr. Ocampo and found that the same had nothing to do with this case. Such attitude of the court was wrong for the simple reason that a mere statement of the fiscal was not sufficient to overcome a qualified plea of the accused. But above all, the court should have seen to it that the accused be assisted by counsel specially because of the qualified plea given by him and the seriousness of the offense found to be capital by the court.

The judgment appealed from is reversed and the case is remanded to the Court below for a new arraignment and a new trial after the accused is apprised of his right to have and to be assisted by counsel. So ordered.

Ozaeta, Pablo, Bengzon, Padilla, Tuason, Montemayor and Reyes, JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

EN BANC

G.R. No. L-8320        December 20, 1955

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.SIM BEN, defendant-appellant.

Vicente Jayme and Celso C. Veloso for appellant.Office of the Solicitor General Juan Liwag, Assistant Solicitor General Guillermo E. Torres and Solicitor Antonio A. Torres for appellee.

 

PADILLA, J.:

Sim Ben appeals from a judgment of the Court of First Instance of Cebu finding him guilty of violating paragraph 3, Article 201 of the Revised Penal Code, for having exhibit cinematographic films of indecent or immoral scenes inside his establishment, a restaurant which is a place open to public view in the City of Cebu, on the sole ground that he entered a plea of guilty to the information without the aid of counsel.

The minutes of the session of the Court on 31 January 1953 disclose that when the case was called for trial, the appellant was informed by the Court of his right to have counsel and asked if he desired the aid of one. He replied that he did not. Then the Court asked if he was agreeable to have the information read to him even without the assistance of counsel. His answer was in the affirmative. The court interpreter translated the information to him in the local dialect and after the translation he entered a plea of guilty. He was asked whether he knew that because of the plea of guilty the punishment as provided for by law would be imposed upon him and he answered "Yes, sir." The Court asked him if he insisted on his plea of guilty and he answered "Yes, sir." At this juncture the fiscal recommended that a fine of P200 be imposed upon the defendant. Thereupon, the Court sentenced him to suffer 6 months and 1 day of prision correccional and to pay the costs.lawphi1.net

What transpired when the appellant was arraigned shows that his rights were fully protected and safeguarded. The Court complied with its duly when it informed the appellant that it was his right to have the aid of counse. And before pronouncing the sentence the Court took pains to ascertain whether he was aware of the consequences of the plea he had entered. Notwithstanding this precaution and warning, he waived his right to have the aid of counsel and entered a plea of guilty to the information.

Appellant claims that he entered the plea of guilty because the fiscal promised him that only a fine would be imposed. The recommendation of the fiscal that only a fine be imposed upon the appellant seems to bear out his claim; but such recommendation or one of leniency does not mean that the appellant is not guilty of the crime charged against him. A promise to recommend a specific penalty such as fine does not render the sentence void if the Court ignores the recommendation and metes out to the defendant a penalty which is provided by law.

Republic of the PhilippinesSUPREME COURTManila

SECOND DIVISION

G.R. No. L-46392 November 10, 1986

EMMA DELGADO, petitioner, vs.HON. COURT OF APPEALS and THE PEOPLE OF THE PHILIPPINES, respondents.

Nicolito L. Bustos for petitioner.

 

PARAS, J.:

This is a petition for "Certiorari and mandamus with prayer for a Writ of preliminary injunction" to review the following orders:

(a) Order of the Court of Appeals dated April 20, l977 denying petitioner's Urgent Motion to Set Aside Entry of Judgment, to Recall the Records and allow the movant to personally receive copy of the decision dated February 16, 1977;

(b) Resolution of the Court of Appeals dated June 3, 1977 denying petitioner's Motion for Reconsiderationdated May 23, 1977; and

(c) Order dated May 11, 1977 of the Court of First In- stance of Manila ordering petitioner's arrest and confiscation of her bond.

Emma R. Delgado, herein petitioner, together with Gloria C. Tortona, Celia Capistrano and Catalino Bautista alias Atty. Paulino Bautista, the last named still at large, was charged with estafa thru falsification of public and/or official documents resulting in deceiving one Erlinda Rueda, a Medical Technologist, in arranging her travel to the United States.

All the accused (except Catalino Bautista) pleaded not guilty upon arraignment and trial on the merits ensued. Herein petitioner Emma R. Delgado was assisted and represented by her counsel de parte, Atty. Lamberto G. Yco. On December 13, 1973, the date set for the continuation of the defense evidence, said Atty. Yco failed to appear despite proper and previous notice. Instead, he sent a telegram requesting for postponement on the ground allegedly that he was sick. No medical certificate was however submitted. The trial fiscal objected, believing that the motion was dilatory because there had been numerous postponements in the past at petitioner's behest. The trial Court sustained the fiscal's objection thereto, considered Emma Delgado to have waived presentation of her evidence, and considered the case submitted for decision.

Thereafter, a judgment of conviction was rendered by the trial court, dated March 20, 1974, the dispositive portion of which reads as follows:

WHEREFORE, in view of the foregoing, the Court finds the accused Gloria C. Tortona, Emma R. Delgado and Celia Capistrano guilty beyond reasonable doubt of the complex crime of Estafa thru Falsification of Public and/or Official Documents, and each is hereby sentenced to an indeterminate penalty ranging from

two (2) years and four (4) months of prision correccional, as minimum, 4 to six (6) years, also of prision correccional, as maximum, to pay a fine of P5,000.00, without subsidiary imprisonment in case of insolvency and to indemnify the offended party Erlinda Ruedas in the amount of P7,431.00. Each is further ordered to pay, jointly and severally, said complainant moral damages in the amount of P5,000.00, and one fourth of the costs of the proceedings.

SO ORDERED.

Accused Gloria C. Tortona did not appeal from the aforesaid decision. Accused Celia Capistrano and petitioner Emma R. Delgado appealed to the Court of Appeals raising the issue of "whether or not on the basis of the evidence and the law the judgment appealed from should be maintained."

On December 6, 1976, the Court of Appeals rendered judgment affirming the decision of the trial court as to herein accused-petitioner Emma R. Delgado and reversing the judgment as to Celia Capistrano, the dispositive part of which judgment reads as follows:

IN VIEW WHEREOF, on reasonable doubt, judgment as to appellant Capistrano is reversed with proportionate costs de officio and cancellation of bail bond, but judgment as to appellant Delgado isaffirmed with proportionate costs.

SO ORDERED.

On December 27, 1976, an entry of final judgment was issued and on February 1, 1977, the records of the case were remanded to the lower court for execution of judgment.

Believing that there was irregularity in the sending of notices and copy of the decision as petitioner was not informed or notified of said decision by her counsel on record, Atty. Lamberto G. Yco, herein petitioner filed on February 17, 1977 with respondent Court of Appeals an "Urgent Motion to Set Aside Entry of Judgment, to Recall the Records and Allw the Movant to Personally Receive Copy of the Decision.�

This motion was denied by respondent Court of Appeals in its Resolution dated April 20, 1977.

On May 11, 1977 an Order was issued by respondent Court of First Instance of Manila directing the arrest of herein petitioner Emma R. Delgado and the confiscation of her bond for failure to appear at the execution of judgment on May 11, 1977.

On May 27, 1977, petitioner filed a Motion for the Reconsideration of the Order denying her Motion to Set Aside Entry of Judgments, etc., invoking as one of the grounds therein, the newly discovered fact that petitioner came to know for the first time only on May 19, 1977 that Atty. Lamberto G. Yco is not a member of the Philippine Bar. Petitioner prayed that she be granted a new trial on the ground that she was deprived of her right to be defended by competent counsel.

On June 3, 1977, respondent Court of Appeals denied petitioner's motion, hence, she filed the instant petition before this Court.

The main thrust of petitioner's arguments is that she is entitled to a new trial and therefore, all the assailed orders of respondent courts should be vacated and set aside, because her "lawyer," Atty. Lamberto G. Yco, is not a lawyer.

We find the petition impressed with merit

This is so because an accused person is entitled to be represented by a member of the bar in a criminal case filed against her before the Regional Trial Court. Unless she is represented by a lawyer, there is

great danger that any defense presented in her behalf will be inadequate considering the legal perquisites and skills needed in the court proceedings. This would certainly be a denial of due process.

WHEREFORE, the assailed judgment is SET ASIDE, and a new one is hereby rendered, remanding the case to the trial court for new trial.

Feria (Chairman), Fernan, Alampay and Gutierrez, Jr., JJ., concur.

Republic of the PhilippinesSUPREME COURT

Manila

SECOND DIVISION

 

G.R. No. L-29015 April 29, 1975

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs.FELIPE MALUNSING, ET AL., defendants, MANUEL VILLEGAS, defendant-appellant.

Office of the Solicitor General Felix V. Makasiar, Assistant Solicitor General Isidro C. Borromeo and Solicitor Dominador L. Quiroz for plaintiff-appellee.

Pablito Pielago for defendant-appellant.

 

FERNANDO, J.:ñé+.£ªwph!1

It was the failure of the lower court to respect the constitutional right to counsel, 1 so it is alleged, that is the basis for seeking the reversal of a conviction for murder of appellant Manuel Villegas. 2 There is more than ample support in the records for the charge thus hurled. As therein shown, Attorney Geronimo Pajarito explicitly manifested in the opening of the trial that appellant intimated to him that he had his own lawyer. 3 There was an admission that he did appear for him in the preliminary investigation but only because there was no other counsel. 4 Parenthetically, it may be observed that while in the original complaint there were two other accused with the same surname as the lawyer, Geremias Pajarito and Samuel Pajarito, after such preliminary investigation, no doubt due to the efforts of this particular lawyer, possibly a kinsman, they "were both discharged for lack of probable cause." 5 To resume, the lower court at this stage then asked whether the appellant notified Attorney Pajarito about his change of mind. When he answered in the negative, the Court stated: "All right, you have a lawyer who is appearing for you." 6 It is to the credit of such counsel that he had reservations about the matter, stating that as the accused had manifested that he had dispensed with his services, his representation might later on be questioned. 7 The court was not sufficiently impressed. Appellant was informed that "the Court will give you a lawyer. Atty. Pajarito is appointed as counsel de oficio for you. We will proceed with the trial." 8 After marking it of record that he was appointed as such counsel de oficio, the attorney was asked whether he wanted to confer with appellant. This was the answer: "I think I know the case." 9 The Court then immediately proceeded with

the hearing, having the first witness called. 10 In the decision itself, there is this meaningful admission by the court: "No evidence was presented for and in behalf of Manuel Villegas." 11

This is how the matter was characterized in the brief of appellant: "The prosecution during the trial presented its witnesses, and likewise all the defendants, ... except the appellant Manuel Villegas, took the witness stand and testified for and in their defense. The appellant is a very old man, ignorant and unlettered; during the entire proceedings in the case, the appellant while present did not know what was going on; the trial court never apprised the appellant of his fundamental right to be assisted by a lawyer; the trial court did not even bother inquiring why the appellant Manuel Villegas did not take the witness stand, [something out of the ordinary as] all defendants, except the appellant, had testified; and the trial court went on throughout the proceedings of the case without

knowing why the appellant did not testify, that if the appellant testified what would his testimony be like, what would be his demeanor during his testimony, ..." 12 Hence, his insistence that no deference was shown to the constitutional right to counsel. We are inclined to agree and we reverse. Considering, however, the gravity of the offense charged, instead of an acquittal, there should be a new trial with all the safeguards thrown around an accused.

1. That would be to vindicate a fundamental safeguard which in this case, perhaps from a desire of the lower court to proceed with the trial and thus ease what could be a congestion in its sala, was inadvertently disregarded. It is not enough that a counsel de oficio was appointed, especially so as here, where the accused had indicated that he wanted a lawyer of his choice, a decision prompted moreover by the fact that he had lost confidence in the member of the bar thus designated. Nor is it to manifest respect for this right if the counsel de oficio thus named, instead of conferring with the accused, would just blithely inform the judge that he was already fully prepared for his exacting responsibility. It was unintended, of course, but the result could not rightly be distinguished from pure travesty. Appellant could then rightfully invoke this constitutional guarantee. Inasmuch as it is intended to assure a just and fair proceeding, he is entitled at the most to a new trial where he can be duly represented either by a counsel of his choice or by one appointed de oficio, one who would discharge his task in a much more diligent and conscientious manner and would not readily assume that he need not bother himself unduly with familiarizing himself further with all aspects of the case. For only in such a way may there be an intelligent defense. If the matter be viewed thus, there is no unfairness to the state either. It can still see to it that a person against whom a probable cause had been found would have to stand trial, but, to repeat, with all the constitutional safeguards.

2. It would not be amiss to refer to the opinion of Chief Justice Moran in People v. Holgado, 13 where the importance of this right was stressed. Thus: "In criminal cases there can be no fair hearing unless the accused be given an opportunity to be heard by counsel. The right to be heard would be of little avail if it does not include the right to be heard by counsel. Even the most intelligent or educated man may have no skill in the science of law, particularly in the rules of procedure, and, without counsel, he may be convicted not because he is guilty but because he does not know how to establish his innocence. And this can happen more easily to persons who are ignorant or uneducated. It is for this reason that the right to be assisted by counsel is deemed so important that it has become a constitutional right and it is so implemented that under our rules of procedure it is not enough for the Court to apprise an accused of his right to have an attorney, it is not enough to ask him whether he desires the aid of an attorney, but it is essential that the court should assign one de oficio for him if he so desires and he is poor or grant him a reasonable time to procure an attorney of his own." 14 There are a number of American Supreme Court decisions to the same effect. In one of them, William v. Kaiser, Justice Douglas succinctly summed up the matter thus: "[The accused] needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law's complexity, or of his own ignorance or bewilderment." 15

What is more, it is one of the worthwhile innovations of the present Constitution that even at the stage of custodial interrogation when the police agencies are investigating a man's possible connection with a crime, he is already entitled to counsel. 16 In a true sense, that is merely to underscore the historical fact that even under the organic acts 17 prior to the 1935 Constitution, there was an awareness of the importance of the right to counsel. 18 This is not of course to assert that this Court in the past had invariably accorded it an interpretation favorable to the stand of an accused. Thus in United States v. Labial, 19 a 1914 decision, it was held that the failure of the record to disclose affirmatively that the trial judge advised the accused of their right to counsel is not sufficient ground for the reversal of a conviction. When Labial was affirmed in United States v. Escalante, 20 decided in 1917, Justice Malcolm was moved to file a vigorous dissent. It suffices to recall his conformity to the view of Cooley that this is "perhaps the privilege most important to the person accused of crime. 21 It is in that spirit, or something akin to it, that the framers of the 1935 Constitution approached the subject. Of even greater relevance is the fact that the present fundamental law has, as above indicated, vitalized still further its worth and significance.

WHEREFORE, the lower court decision of December 4, 1967 insofar as it found Manuel Villegas guilty of the crime of murder is reversed and a new trial ordered forthwith for such accused. This decision is immediately executory. No costs.

Barredo, Antonio, Aquino and Concepcion, Jr., JJ., concur. 1äwphï1.ñët