[G.R. No. 111193.

January 28, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. FERDINAND SUAREZ, alias "Jojo",

LORETO REYES, alias "Dondon" and "Larry"; WILFREDO LARA, alias "Cortal" and "Willy";
MARIA
VICTORIA
G.
SUAREZ;
NOLI
LICSI, alias "Nio";
VICENTE
RODRIGUEZ, alias "Waway"; and MORRIS SANTOS, alias "Wanky", accused,
DECISION
REGALADO, J.:
In the early hours of December 8, 1987, Arlene Tuyor was awakened by loud knocking sounds
on the door of her room. She was a domestic helper at that time, working in the household of
Estrellita Guzman at 22 Sta. Teresita Street, Barrio Capitolyo, Pasig, Metro Manila. Also in the house
then were the nieces of Estrellita, namely, Maria Prescilla Guzman (Babyruth), Maria Cristina
Guzman (Cristy) and Maria Victoria Suarez (Marivic). Babyruth and Marivic had been adopted by
Estrellita as her own daughters. Marivic's husband, Ferdinand Suarez (Jojo), and her three children
likewise lived in Estrellita's bungalow-type house.
Upon opening the door, Tuyor was surprised to see Ferdinand Suarez, her "Seorito Jojo,"
surrounded by two men wearing black nylon cloths over their heads and faces. One of the men had
a big body frame while the other had a small physique. The men immediately entered her room, tied
her up and asked for her money. She was also asked if she knew Jojo. Getting no response from
Tuyor, the intruders left her room bringing Suarez with them.
From her room, Tuyor heard the sound of the microwave oven located in the kitchen. She also
heard the main door of the house slamming and someone crying in the house. When Tuyor went out
of her room, she saw Marivic weeping in the living room. She proceeded to her employer's bedroom
and found Estrellita bleeding and lying on her bed. All this time, accused Suarez was just sitting on
the chair of the piano. [1]
Estrellita later died due to severe hemorrhage secondary to stab wounds. Post-mortem
examinations revealed that she had sustained an elliptical and gaping wound on the right side of her
abdomen and another wound of the same nature on the left side of her back. Further examination
also disclosed that the deceased suffered an incised wound on her left thumb.[2]
When police investigators arrived at the scene of the crime, they found a half-eaten chicken on
the dining table, [3] four pieces of black nylon cloth, [4] pieces of blue and white ropes, [5] three pieces
of cloth, [6] and two strands of ordinary wire. [7] They initially surmised that the intruders had forcibly
entered the house through its back door located in the kitchen. [8] They arrived at this conclusion
after finding a piece of wire inserted in the knob of the kitchen door [9] and its chain lock's anchor
detached from the doorjamb. However, the door's dead bolt lock was intact and in perfect
condition. [10]
Ferdinand Suarez narrated to Patrolman Pablo Roxas [11] of the Eastern Police District (EPD)
at Meralco Avenue, Pasig what he claimed to have experienced on that fateful day, in this wise:

At around 3:00 A.M. of December 8, 1987, he was awakened by someone holding his hands
and putting a piece of rag in his mouth. When he opened his eyes, he saw somebody pointing a
knife at him and another at his wife. He saw inside their room six men with nylon cloths over their
faces. When he was about to resist, one of the men hit him on the face and threatened to kill him, his
wife and his children. After they had tied and gagged him and also covered his eyes, the men
brought him out to the dining room. He heard the door of Estrellita being pushed open, and then
Estrellita shouting.
Afterwards, he was brought to the room shared by Cristy and Babyruth and mauled in front of
them. After that, he was brought to the room of Arlene Tuyor. From the maid's room, he was again
brought to the dining room where he was tied to one of the chairs of the dining table. From there, he
heard the men cooking with the use of the microwave oven in the kitchen. After a while, Estrellita
cried loudly and called for Marivic. He later heard the running of the engine of one of their cars and
the main door being slammed shut. After the men left at about five o'clock in the morning, he
discovered that the trespassers had taken some things in the house such as a television set, a radio,
a betamax and other household items.
As the police were getting no leads about the identity of the malefactors, the lawyer of the
family of the deceased sought the help of the National Bureau of Investigation (NBI). The case was
assigned to Atty. Salvador Ranin. Atty. Ranin concluded that the perpetrators could not have entered
the house without the aid of somebody inside as the bolt lock of the kitchen door can only be
released from within. He had one suspect in mind, that is, Ferdinand Suarez, or Jojo. [12]
Ranin had discovered in the course of his investigation that there were no signs of injuries or
rope marks on Suarez and that he was not on good terms with Estrellita when the crime happened.
He was even found positive for deception after taking the polygraph test at the NBI. Suarez
eventually revealed to Ranin his involvement in the commission of the crime after Ranin told him that
he had damaging information to the effect that Suarez had left the house in the evening of
December 7, 1987.
In his sworn statement [13] before the NBI, Suarez said that one Loreto Reyes, alias "Dondon"
or Larry, approached him during the last week of November, 1987 and talked to him to allow Reyes
and his group to rob their house as they badly needed money for the Christmas season. It was only
after the group threatened to kill him that Suarez acceded to their demand, on the condition that they
would only steal but should not kill him.
On November 29, 1987, Suarez gave to Reyes and his gang the keys to the door of the
house, the door of Babyruth's and Cristy's room, and the door of Estrellita's room in order to have
them duplicated. He returned to Reyes and the others on December 5, 1987 to receive instructions
on what to do. He was told that the group would go to their place in the early morning of December
8, 1987. On the agreed date, at around twelve o'clock noon, Suarez disengaged the bolt lock of the
kitchen door and unlocked the door of their rooms as earlier instructed by the gang.
The felons arrived at the house at around two o'clock in the morning and proceeded to Suarez
and Marivic' s room. Suarez saw four men with covers on their faces, but he recognized one of them
as Reyes through his voice and build. They immediately bound Marivic and when one of the
members of the gang was about to tie up Suarez, Reyes stopped him.
After Suarez was dragged out of the room, he told the group who were the occupants of the
different rooms in the house. Two men entered the room of Babyruth and Cristy while Reyes and the

fourth man went to Estrellita's room. They were able to enter Estrellita's room with the use of their
duplicate key and after they had kicked open the door of her room. Estrellita shrieked when they
went inside her room.
The two men brought Suarez to his sisters-in-law's room to point out to them what they could
get from that room. Afterwards, he was brought to the dining table. From there, he saw the men
asking Estrellita for the keys of the gate of the house and the car. After they brought Estrellita back to
her room, two of the men brought Suarez to the maid's quarters.
Reyes asked Suarez to cook a chicken he found in the refrigerator. While Suarez was cooking
the chicken in the microwave oven, the men took off the covers on their faces, smoked marijuana
and drank liquor. They were not able to finish eating the chicken because it was not evenly cooked.
When Estrellita shouted the name of Marivic, Rodriguez, one of the companions of Reyes, went to
her room. Suarez heard only soft and fading moans from Estrellita after that.
Before they left, the marauders told Suarez not to tell the police or the NBI or else they would
kill his mother. They slammed the front door shut and used the car of Estrellita to leave the house at
around five o'clock in the morning.
The NBI soon found out that "Dondon" or Larry is Loreto Reyes, a former neighbor of Suarez
in San Miguel, Pasig where he used to live before he transferred to his wife's residence at Barrio
Capitolyo.[14] Reyes also admitted his participation in the commission of the crime and gave a written
statement [15] to the NBI.
He began his confession by implicating Wilfredo Lara in the crime. He said that while he,
Arthur Lara, Morris Santos, and Eduardo Lozada were doing nothing in their place in San Miguel,
Pasig, Lara approached them and told them that he had some good news. Lara told them that he
was asked by Suarez to look for some men who could kill his Auntie Estrellita. Reyes could not
believe what he heard, so Lara called Suarez to let him tell the gang about his offer.
Apparently, Suarez wanted his aunt killed so that he and his wife could get at once any
property that Marivic might inherit from Estrellita upon the latter's demise. In exchange for the job,
Suarez would allow them to steal what they wanted from the house, in addition to giving
them P100,000.00 after one month from the killing of Estrellita.
They initially planned to carry out the criminal plot on December 5, 1987 but the group of
Reyes backed out on the agreed date when they felt unsure about the plan. However, they had
duplicates made of the keys to the house, which keys had been left by Suarez under one of
Estrellita's cars. The plan finally materialized on December 8, 1987 at about two o'clock in the
morning. The persons who were to execute the plan were Noli Licsi, Vicente Rodriguez, Morris
Santos, and Reyes. Before they went to Capitolyo, the group took some prohibited drugs and
smoked marijuana.
Aided by the sketch of the house provided by Suarez, the group went directly to the back of
the house and opened the back door with their duplicate key. As agreed upon earlier, Suarez had
released the bolt and chain lock of the said door to facilitate their entry into the house. Once inside,
Suarez, who was waiting for them there, instructed them to tie him and his wife. After doing so, they
opened the bedrooms of Babyruth, Cristy and Estrellita. The men then tied them up inside their
respective rooms. Since Santos and Licsi were the ones who entered Cristy's and Babyruth's room,
Reyes could not be sure what they got from those rooms.

Reyes further revealed that before they went into the house, Suarez had earlier loosened the
screws of the chain lock on the door of Estrellita's room. So, with their duplicate key and a little push
from outside, Reyes and Rodriguez were able to easily enter Estrellita's room. As Estrellita was
surprised by the entry of the two men, she instinctively held the knife being brandished by Reyes
which thereby cut her thumb. The two men then tied Estrellita.
It was after the gang was able to tie all the occupants of the house that they started taking the
betamax, jewelry, computer machine, camera, watches and other things inside the house. Estrellita
Guzman pointed out to them where they could find her jewelry. They brought Suarez inside her room
so that he could also show them where Estrellita's other jewelry and valuables were, and then they
covered her with a blanket.
After taking what they wanted, the scoundrels ate the chicken Suarez had cooked for them
and drank the imported liquor he offered. They also smoked marijuana. While they were drinking,
Suarez remembered the maid, Tuyor, so he and two men went to her room and staged a show of
their mauling Suarez in front of her. They then tied the maid and continued drinking outside.
Thereafter, Suarez told the gang to kill Estrellita. Reyes said that Santos and Rodriguez were the
ones who stabbed Estrellita because they told him later that each of them stabbed the old lady once.
Before Reyes and the gang left the place, Marivic told them to get their television ranger and
to disarrange the things in their room to show that the couple was not spared by the criminals.
Suarez ordered them to cut the telephone line and Reyes did so. Then, Suarez told Reyes to pull the
chain lock of the kitchen door to make it appear that the door had been forced open from outside.
Reyes complied with Suarez instructions. To hide the fact that a duplicate key was used in opening
the kitchen door, the perpetrators inserted a wire in the doorknob keyhole of the kitchen door upon
the prodding of Suarez.
The intruders left the house at around four o'clock in the morning. In getting out of the house,
the gang used the front door and rode in one of the cars of Estrellita. From the statement of Reyes, it
appears that the cabal wore black nylon cloths over their heads and faces when they committed the
despicable crime.
Atty. Ranin was able to retrieve the duplicate keys used by the gang [16] from the father of
Reyes [17] after Reyes had admitted that the keys could be found in his father's house in Montalban.
Wilfredo Lara was arrested by the NBI at the house of his parents- in-law in Northern Samar. When
brought to the NBI office at Taft Avenue, Manila, he likewise confessed his participation in the crime
and gave a sworn statement. [18]
According to Lara, Suarez went to his house at San Miguel, Pasig on December 2, 1987 to
ask him if he knew people who would be willing and capable of robbing a house. Lara told him that
there were some persons he knew who could do the job and he brought Suarez to the group of Larry
Reyes, Noli Licsi, Morris Santos and Vicente Rodriguez at Dr. Pilapil Street, San Miguel, Pasig.
When Reyes and Suarez started talking, Lara left the place.
On December 4, 1987, Lara saw Suarez talking with the same group in front of a store. He
overheard them planning the robbery of a house in Barrio Capitolyo on December 8, 1987. On
December 7, 1987, he again saw Suarez and the gang when they agreed to consummate their
earlier plan. Lara denied that he joined the group that robbed the house in Barrio Capitolyo and
added that he never received any share of the loot from them. He did not report the matter to the
police for fear of reprisal. He even went to the place of his in-laws at Nabas, Samar to avoid the
group.

Based on the foregoing statements and on other evidence submitted by the NBI to the then
provincial fiscal of the former municipality of Pasig, an information for the crime of robbery with
homicide was filed against Ferdinand Suarez, Loreto Reyes, Wilfredo Lara, Maria Victoria G.
Suarez, Noli Licsi, Vicente Rodriguez, and Morris Santos. The case was raffled to Branch 152 of the
Regional Trial Court of Pasig[19] and docketed as Criminal Case No. 72249.
As stated in the information, which was twice amended, the felony was-allegedly committed as
follows:
That on or about the 8th day of December, 1987 in the Municipality of Pasig, Metro Manila,
Philippines a place within the jurisdiction of this Honorable Court, the above-named accused,
conspiring and confederating together with one Mauro Santos whose true identity and present
whereabouts is still unknown and mutually helping and aiding with one another, by means of force,
violence and intimidation employed upon the person of one Estrellita Guzman did then and there
willfully, unlawfully and feloniously take, rob and carry away from the house of said Estrellita
Guzman the following articles, to wit:
a. Jewelry
b. Computer machine
c. TC Sony Ranger
d. Radio Cassette

of robbery with homicide, and sentenced them to suffer the penalty of reclusion perpetua and to
solidarily pay to the heirs of the victim P30,000.00 as death indemnity, P420,00.00 for loss of earning
capacity, and the costs. [21]
While Suarez and Reyes have already accepted the trial court's verdict, Lara now questions
the lower court's decision by challenging the admissibility of their extrajudicial declarations marked
as Exhibits O, P and Q. He claims that their extrajudicial confessions were obtained through force
and intimidation and without the benefit of an effective counsel. [22]
It is important to note at the outset that this Court has no jurisdiction to review the judgment of
conviction imposed upon Suarez and Reyes for they have not filed any notice of appeal for
themselves. [23] And while we are cognizant of the rule that the right to claim the inadmissibility of an
extrajudicial confession is personal in nature, in the sense that only the confessant whose rights
during an investigation were violated can raise an objection, [24] we deem it necessary to discuss in
this appeal the circumstances surrounding the execution of Reyes's sworn statement in evaluating
appellant Lara's own extra curia declaration. Although an extrajudicial confession is admissible only
against the confessant, jurisprudence makes it admissible as corroborative evidence of other facts
that tend to establish the guilt of his co-accused. [25]
The lower court treated the confessions of the three accused as interlocking confessions
sufficient to corroborate and bolster the truth of each accused's own incriminating statements. This
doctrine of interlocking confessions has been accepted and recognized in numerous decisions of
this Court as an exception to the res inter alios acta rule and the hearsay rule. [26] Reyes' confession
is thus admissible against Lara to show the probable involvement of the latter in the perpetration of
the crime. Where the confession is used as circumstantial evidence to show the probability of
participation by an accused co-conspirator, that confession is receivable as evidence against him. [27]

e. Five (5) assorted cameras and other valuables

all in the total amount of P650,000.00 more or less, that on the occasion of the said robbery and for
the purpose of enabling them to take, rob and carry away the articles above-mentioned, herein
accused, conspiring and confederating together and mutually helping and aiding with one another,
armed with bladed weapons, with intent to kill, did then and there willfully, unlawfully and feloniously
stab said Estrellita Guzman, thereby causing the latter to sustain fatal injuries which directly caused
her death. [20]
Only accused Suarez, Reyes and Lara were brought within the jurisdiction of the lower court
as the other accused went into hiding and were able to evade the joint manhunt set up by the police
and the NBI. Suarez, Reyes and Lara pleaded not guilty despite their earlier confessions before the
NBI. Although they admitted that they signed and placed their thumbmarks on their respective
statements, they tried to show during their trial that those statements were procured through
coercion, intimidation and violence by the NBI agents and without the assistance of counsel.
Accused Suarez reiterated the earlier version he gave to the EPD, while accused Reyes and Lara
raised the defense of alibi by claiming that they were respectively at Montalban, Rizal and Samar at
the time the crime was committed.

But while herein appellant does not deny the validity and operation of the above rule in his
situation, he maintains that his co-accused ' s confessions must comply with the requirements found
in Section 12, Article III of the Constitution before they can be considered probative of his
guilt. [28] We see no need to rule on the admissibility of Suarez' statement because Lara was never
mentioned or implicated therein. What interests us is that of Reyes, since appellant Lara claims
alleged violence, torture and maltreatment suffered by him and Reyes at the hands of the NBI
agents.
After a thorough review of the records of the case, we agree with the lower court' s factual
finding and conclusion that the extrajudicial confessions of accused Reyes and appellant Lara were
freely and voluntarily given and that their retraction and claims of violence and coercion were merely
belated contrivances and efforts at exculpation. Their claim that they were forced to sign their
respective statements was sufficiently refuted by the witnesses for the prosecution who were present
on the day and time the duo gave and signed their sworn statements. [29]

The prosecution however, presented witnesses who were present during the taking of the
statements of the accused and they testified that those statements were given freely and voluntarily,
and were taken with observance of the constitutional guarantees, during the custodial investigation.

Once the prosecution has shown that there was compliance with the constitutional
requirement on pre-interrogation advisories, a confession is presumed to be voluntary and the
declarant bears the burden of proving that his confession is involuntary and untrue. [30] The burden is
on the accused to destroy this presumption. [31] A confession is admissible until the accused
successfully proves that it was given as a result of violence, intimidation, threat, or promise of reward
or leniency. [32]

Relying on the extrajudicial confessions of the accused and on the circumstantial evidence
adduced by the prosecution, the trial court found the three accused guilty beyond reasonable doubt

The sworn statements signed by accused Reyes and appellant Lara state that they had been
informed of their rights guaranteed under the Constitution. Reyes stated that he had been assisted

by counsel during the custodial investigation and appellant Lara confirmed that he was assisted by a
lawyer when he waived his constitutional rights. Additionally, several witnesses for the People
testified before the lower court that the constitutional mandates were observed during their
investigation. Reyes and Lara were not even able to show any evil or dubious motive corrosive of
the credibility of these witnesses whom the court a quo found more worthy of belief than the
witnesses for the defense.
Accused failed to submit any evidence, apart from their own testimony, that violence and
intimidation had been inflicted upon them to extort their sworn confessions. They never complained
to Prosecutor Capistrano nor to anyone else about the physical beatings that they claim had been
inflicted upon them. They did not ask for medical assistance and there was no proof that any such
request was denied. Although Reyes submitted a medical certificate to attest to supposed injuries,
the court below did not believe it and accepted it merely to prove its existence. [33]
Extrajudicial confessions independently made without collusion, almost identical with each
other in their essential details which could have been known only to the declarants, and corroborated
by other evidence against the person or persons implicated to show the probability of the latter' s
actual participation in the commission of the crime, are thus impressed with features of voluntariness
in their execution. [34] Also, the failure of an accused to complain to the swearing officer [35] or to file
charges against the persons who allegedly maltreated him, although he had all the chances to do
so, manifests voluntariness in the execution of the confession. [36]
We find no merit in herein appellant' s contention that Atty. Saunar was not Reyes' own choice
as counsel for the interrogation. While the initial choice of the lawyer in cases where a person under
custodial investigation cannot afford the services of a lawyer is naturally lodged in the police
investigators, the accused really has the final choice as he may reject the counsel chosen for him
and ask for another one. A lawyer provided by the investigators is deemed engaged by the accused
where he never raised any objection against the former's appointment during the course of the
investigation and the accused thereafter subscribes to the veracity of his statement before the
swearing officer. [37]
Here, while the lawyers of the accused were provided by the NBI, the accused never signified
their desire to have a lawyer of their own choice. Thus, we also disagree with appellant' s claim that
the lawyer who assisted him in his waiver came in only after he had executed his waiver. His own
statement shows that he waived his rights in the presence and with the advice of Atty. Rodolfo
Dahiroc.
To be an effective counsel, a lawyer need not challenge all the questions being propounded to
his client. The presence of a lawyer is not intended to stop an accused from saying anything which
might incriminate him but, rather, it was adopted in our Constitution to preclude the slightest coercion
as would lead the accused to admit something false. [38] The counsel, however, should never prevent
an accused from freely and voluntarily telling the truth. [39] Hence, absent any showing that the
lawyers who assisted the accused were remiss in their duties, it can be safely concluded that the
custodial investigation of Reyes and Lara were regularly conducted. [40]
Even disregarding for a moment Reyes' extrajudicial declaration, appellant Lara can still be
held accountable under his own sworn statement. Well-entrenched is the rule that it is not necessary
that an eyewitness should testify to having seen the accused committing the crime or had seen him
under circumstances indicating his having committed the crime, before the accused may be held
liable under his confession. [41] This is how much weight and credence our jurisprudence gives to a
confession. The Rules of Court [42] provide that "(t)he declaration of an accused acknowledging his

guilt of the offense charged, or any offense necessarily included therein, may be given in evidence
against him. "
Of course, when the confession is made outside of court proceedings, it must be accompanied
by evidence of the corpus delicti to be sufficient for conviction. [43] If it is made freely and voluntarily, a
confession constitutes evidence of a high order since it is supported by the strong presumption that
no sane person or one of a normal mind will deliberately and knowingly confess himself to be the
perpetrator of a crime unless prompted by truth and conscience. [44]
Withal, appellant Lara did not appeal in vain. Although he himself admitted his role in the crime
of robbery with homicide, we deem it just and equitable to delineate in this decision his exact
criminal liability even though he failed to clearly raise it before us.
We reject the prosecution' s theory and the trial court ' s conclusion that appellant acted as a
lookout during the commission of the special complex crime. The prosecution did not present any
evidence showing that he took part in the planning or execution of the crime nor any proof indicating
that he profited from the fruits of the crime, or of acts indicative of confederacy on his part.
The pictures of the reenactment depicting Lara' s role in the commission of the
crime [45] cannot be utilized as evidence of his participation as a principal therein as that reenactment
was conducted without any lawyer assisting appellant. We have held that reenactments are covered
by the right against self- incrimination. [46] Atty. Ranin himself admitted on the witness stand that no
lawyer assisted Lara during the reenactment because he could not find any available lawyer at that
time who could act as his counsel. [47]
From Reyes and appellant's confessions, which we believe bear the mark of truth and
credibility, it can only be inferred that Lara merely introduced the group of Reyes to Suarez. With
such a nominal role, we cannot conscientiously declare that Lara was a co-conspirator or a principal
by inducement or indispensable cooperation in the crime of robbery with homicide.
Where the accused does not fall under any of the three concepts of principals defined in
Article 17 of the Revised Penal Code, he may only be considered guilty as an accomplice. [48] And
where there is no showing of conspiracy or confabulation on his part, and the extent of the accused's
participation in the crime is uncertain, he should be given the benefit of the doubt and be declared as
a mere accomplice therein. [49] We are sufficiently persuaded to declare appellant as a mere
accomplice in the crime charged.
WHEREFORE, the penalty imposed upon accused-appellant Wilfredo Lara is hereby
MODIFIED and he is sentenced to suffer an indeterminate penalty of ten (10) years of prision mayor,
as minimum, to seventeen (17) years and four (4) months of reclusion temporal, as maximum.
The death indemnity awarded by the court a quo is hereby INCREASED to Fifty Thousand
Pesos (P50,000.00) in line with present case law and policy, to be assessed against the accused
and herein appellant in accordance with Article 110 of the Revised Penal Code.
In all other respects, the judgment of the lower court is hereby AFFIRMED.
SO ORDERED.
[G.R. No. 107383. February 20, 1996.]

CECILIA
ZULUETA, petitioner,
MARTIN, respondents.

vs. COURT

OF

APPEALS

and

ALFREDO

DECISION

this Court took note of the following defense of Atty. Felix, Jr. which it found to be impressed with
merit:2
On the alleged malpractice or gross misconduct of respondent [Alfonso Felix, Jr.], he
maintains that:

MENDOZA, J.:
xxx
This is a petition to review the decision of the Court of Appeals, affirming the decision of the
Regional Trial Court of Manila (Branch X) which ordered petitioner to return documents and papers
taken by her from private respondents clinic without the latters knowledge and consent.
The facts are as follows:
Petitioner Cecilia Zulueta is the wife of private respondent Alfredo Martin. On March 26, 1982,
petitioner entered the clinic of her husband, a doctor of medicine, and in the presence of her mother,
a driver and private respondents secretary, forcibly opened the drawers and cabinet in her
husbands clinic and took 157 documents consisting of private correspondence between Dr. Martin
and his alleged paramours, greetings cards, cancelled checks, diaries, Dr. Martins passport, and
photographs. The documents and papers were seized for use in evidence in a case for legal
separation and for disqualification from the practice of medicine which petitioner had filed against her
husband.
Dr. Martin brought this action below for recovery of the documents and papers and for
damages against petitioner. The case was filed with the Regional Trial Court of Manila, Branch X,
which, after trial, rendered judgment for private respondent, Dr. Alfredo Martin, declaring him the
capital/exclusive owner of the properties described in paragraph 3 of plaintiffs Complaint or those
further described in the Motion to Return and Suppress and ordering Cecilia Zulueta and any
person acting in her behalf to immediately return the properties to Dr. Martin and to pay him
P5,000.00, as nominal damages; P5,000.00, as moral damages and attorneys fees; and to pay the
costs of the suit. The writ of preliminary injunction earlier issued was made final and petitioner
Cecilia Zulueta and her attorneys and representatives were enjoined from using or
submitting/admitting as evidence the documents and papers in question. On appeal, the Court of
Appeals affirmed the decision of the Regional Trial Court. Hence this petition.
There is no question that the documents and papers in question belong to private respondent,
Dr. Alfredo Martin, and that they were taken by his wife, the herein petitioner, without his knowledge
and consent. For that reason, the trial court declared the documents and papers to be properties of
private respondent, ordered petitioner to return them to private respondent and enjoined her from
using them in evidence. In appealing from the decision of the Court of Appeals affirming the trial
courts decision, petitioners only ground is that in Alfredo Martin v. Alfonso Felix, Jr.,1 this Court ruled
that the documents and papers (marked as Annexes A-i to J-7 of respondents comment in that
case) were admissible in evidence and, therefore, their use by petitioners attorney, Alfonso Felix, Jr.,
did not constitute malpractice or gross misconduct. For this reason it is contended that the Court of
Appeals erred in affirming the decision of the trial court instead of dismissing private respondents
complaint.
Petitioners contention has no merit. The case against Atty. Felix, Jr. was for disbarment.
Among other things, private respondent, Dr. Alfredo Martin, as complainant in that case, charged
that in using the documents in evidence, Atty. Felix, Jr. committed malpractice or gross misconduct
because of the injunctive order of the trial court. In dismissing the complaint against Atty. Felix, Jr.,

xxx

xxx

4. When respondent refiled Cecilias case for legal separation before the Pasig Regional Trial Court,
there was admittedly an order of the Manila Regional Trial Court prohibiting Cecilia from using the
documents Annex A-I to J-7. On September 6, 1983, however having appealed the said order to
this Court on a petition for certiorari, this Court issued a restraining order on aforesaid date which
order temporarily set aside the order of the trial court. Hence, during the enforceability of this Courts
order, respondents request for petitioner to admit the genuineness and authenticity of the subject
annexes cannot be looked upon as malpractice. Notably, petitioner Dr. Martin finally admitted the
truth and authenticity of the questioned annexes. At that point in time, would it have been
malpractice for respondent to use petitioners admission as evidence against him in the legal
separation case pending in the Regional Trial Court of Makati? Respondent submits it is- not
malpractice.
Significantly, petitioners admission was done not thru his counsel but by Dr. Martin himself
under oath. Such verified admission constitutes an affidavit, and, therefore, receivable in evidence
against him. Petitioner became bound by his admission. For Cecilia to avail herself of her husbands
admission and use the same in her action for legal separation cannot be treated as malpractice.
Thus, the acquittal of Atty. Felix, Jr. in the administrative case amounts to no more than a
declaration that his use of the documents and papers for the purpose of securing Dr. Martins
admission as to their genuiness and authenticity did not constitute a violation of the injunctive order
of the trial court. By no means does the decision in that case establish the admissibility of the
documents and papers in question.
It cannot be overemphasized that if Atty. Felix, Jr. was acquitted of the charge of violating the
writ of preliminary injunction issued by the trial court, it was only because, at the time he used the
documents and papers, enforcement of the order of the trial court was temporarily restrained by this
Court. The TRO issued by this Court was eventually lifted as the petition for certiorari filed by
petitioner against the trial courts order was dismissed and, therefore, the prohibition against the
further use of the documents and papers became effective again.
Indeed the documents and papers in question are inadmissible in evidence. The constitutional
injunction declaring the privacy of communication and correspondence [to be] inviolable 3 is no less
applicable simply because it is the wife (who thinks herself aggrieved by her husbands infidelity)
who is the party against whom the constitutional provision is to be enforced. The only exception to
the prohibition in the Constitution is if there is a lawful order [from a] court or when public safety or
order requires otherwise, as prescribed by law. 4 Any violation of this provision renders the evidence
obtained inadmissible for any purpose in any proceeding. 5
The intimacies between husband and wife do not justify any one of them in breaking the
drawers and cabinets of the other and in ransacking them for any telltale evidence of marital
infidelity. A person, by contracting marriage, does not shed his/her integrity or his right to privacy as
an individual and the constitutional protection is ever available to him or to her.

The law insures absolute freedom of communication between the spouses by making it
privileged. Neither husband nor wife may testify for or against the other without the consent of the
affected spouse while the marriage subsists.6 Neither may be examined without the consent of the
other as to any communication received in confidence by one from the other during the marriage,
save for specified exceptions. 7 But one thing is freedom of communication; quite another is a
compulsion for each one to share what one knows with the other. And this has nothing to do with the
duty of fidelity that each owes to the other.
WHEREFORE, the petition for review is DENIED for lack of merit.

Gemo Ibaez, Bolodoy Calderon, Gil Rapsing, Jose Fernandez, Noe Albao, Ely Rapsing and Norie
Huelva, with the crime of murder committed as follows:
That on or about June 20, 1988, in the evening thereof, at Barangay Gabi, Municipality of Baleno,
Province of Masbate, Philippines, within the jurisdiction of this Court, the said accused, conspiring
together and mutually helping one another, with intent to kill, evident premeditation(,) treachery and
superiority of strenght (sic) and taking advantage of nighttime, did, then and there willfully, unlawfully
and feloniously attack, assault and shot with a gun(,) hack with a bolo one Honorio Aparejado y
Fideles, hitting the latter on the different parts of the body, thereby inflicting wounds which directly
caused his instantaneous death.

SO ORDERED.

[G.R. No. 100920. June 17, 1997]

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. NOLI SALCEDO @ "KA TONY," GEMO
IBAEZ @ "KA TITING," BOLODOY CALDERON, JUANITO SUAL, JR., EDISON BANCULO,
NONOY ESQUILONA, GIL RAPSING, JOSE FERNANDEZ, REYNALDO CORTEZ, NOE ALBAO,
ELY RAPSING, PACO MANLAPAZ, DANILO LAURIO and NORIE HUELVA, accused,
NOLI SALCEDO, EDISON BANCULO, JUAN SUAL, JR., and DANILO LAURIO, accusedappellants.
DECISION
PANGANIBAN, J.:
The rights of a person under custodial investigation, particularly the right to remain silent and
to counsel, have been explained, echoed and stressed no end by this Court. They are no less
constitutionally enshrined.[1] Innumerable court decisions[2] have been rendered, evincing the great
importance with which the state regards them. A law[3] was recently enacted defining the rights of
persons arrested, detained or under custodial investigation as well as the duties of the arresting,
detaining and investigating officers; and penalizing violations thereof. In spite of these clear
constitutional, jurisprudential and statutory guidelines, one still finds persistent infractions by public
investigators and police authorities that have resulted in acquittals which oftentimes are not
understood or appreciated by the public at large.
In the present case, the issue confronts us once more. As we have held in similar cases, a
voluntary extrajudicial confession of an accused, even where it reflects the truth, if given without the
assistance of counsel and without a valid waiver thereof, is inadmissible in evidence against him.[4]
Of course, where the statements in the uncounselled confession are reiterated in open court,
or where other conclusive evidence proves the guilt of the accused beyond reasonable doubt, the
court should not hesitate to convict and mete the proper penalty.[5]
In an Information[6] dated October 28, 1988, First Assistant Provincial Fiscal Andres B.
Barsaga, Jr. charged Accused-appellants Noli Salcedo, Edison Banculo, Juanito Sual, Jr. and Danilo
Laurio, together with Nonoy (Teodulo, Jr.) Esquilona, Reynaldo Cortes, Paco (Romarico) Manlapaz,

On September 12, 1989, Accused Noli Salcedo, Juanito Sual, Jr., Edison Banculo, Danilo
Laurio, Reynaldo Cortes and Nonoy Esquilona, assisted by Attys. Ricardo Merdegia and Jose
Medina, pleaded not guilty to the above charge, while Accused Romarico Manlapaz, assisted by
Atty. Ruben Songco, entered the same plea on January 23, 1990. [7] The rest of the accused
remained at large. Trial ensued insofar as those apprehended and arraigned were concerned. On
May 6, 1991, the trial judge rendered judgment convicting Salcedo as principal; and Banculo, Sual,
Jr. and Laurio as accomplices in the crime of murder. Esquilona, Jr., Cortes and Manlapaz were
acquitted.[8]
The Facts
Evidence for the Prosecution
The principal witness for the prosecution, Edwin Cortes, a 30-year old farmer, resident of Gabi,
Baleno, Masbate, and brother-in-law of the victim, Honorio Aparejado, identified and affirmed his
statement[9] given on June 30, 1988 relative to the incident which he had subscribed to before
Municipal Circuit Trial Judge Vicente Lim Yu on July 11, 1988. The gist of Cortes testimony[10] is as
follows:
About 8:00 oclock in the evening of June 20, 1988, he was in his house together with his wife, their
four children and the victim when several armed men led by Accused Noli Salcedo arrived. Salcedo
shouted for him and the victim to come out of the house. Once outside, Cortes and Aparejado were
ordered to lie on the ground; then they were hogtied. Thereafter, they were told to get up and were
led to the other side of a creek, about twenty (20) meters from the house, where they were ordered
to lie down again. While the witness and the victim were in such position about two or three meters
apart, Salcedo shot Aparejado twice, then hacked him. Salcedos companions likewise hacked the
victim. Afterwards, they turned Aparejados body around, opened his stomach and took out his
liver. His kneecap was also removed. Then all the accused left, bringing with them the victims liver
and kneecap. Cortes claimed to have witnessed all these since the accused had a flashlight and the
moon was just rising.
After the accused had left, Cortes ran towards a grassy area where he was able to untie his
hands. The following morning, he informed the relatives of the victim about the incident and likewise
reported the same to police authorities at Baleno, Masbate. Cortes further stated that he had known
Salcedo for about a year prior to the incident and that he had no knowledge of any reason why the
accused had killed Aparejado. Although he admitted not knowing the identities of Salcedos
companions at the time of the murder, he identified each of the accused before the trial court and
said that they were the ones who killed Aparejado.

Municipal Health Officer Conchita Ulanday conducted the postmortem examination on the
body of the victim. Her findings included:
Signs of violence:
Incised wound with a zigzag appearance 11 penetrating exposing the stomach and a portion of the
intestines, located at the epigastric area (Rt.) up to the level of the navel.
Incised wound slightly curving in appearance(,) 7 penetrating exposing a portion of the intestines
crossing the wound #1 at the level of the navel.
Gunshot wound point of entry #2, 1 cm. circular each 1 apart pre-axillary line at the level of the 4th and
5th (illegible) with the presence of tattoing (sic) (powder burns) around the wound(,) back, left, with a
downward-inward in (sic) direction.
Gunshot wound point of entry 1 cm. circular, scapular line, (with) tattoing (sic) around the wound, lower
back, left.

at the house where the three were arrested. He stated further that he did not maltreat any of them
and was not present during their investigation conducted by Sgt. Jose Bajar.[18]
Evidence for the Defense
Accused Edison Banculo testified that he had been in Balite, Aroroy, Masbate, sleeping in the
house of his adoptive parents, Celia[19] Laydo and Angel Entines,[20] on the night the incident
occurred. His adoptive parents and co-accused Danilo Laurio were also in the same house at that
time. He declared that he had signed Exhibit G, purportedly his confession of his participation in
the killing of Aparejado, only because he could not bear the physical maltreatment by the police who
had further threatened to kill him. He confirmed that he was not assisted by counsel or apprised of
his rights to remain silent and to be assisted by counsel of his own choice during his investigation. [21]
Another accused, Teodulo Esquilona, Jr., testified that he had been in Masbate, Masbate,
learning the art of wood lamination from a certain Eduardo Marabe, on the day the incident took
place. Among his co-accused, he knew only Reynaldo Cortes while he met the others for the first
time in court. He testified further that, contrary to the assertion of Prosecution Witness Edwin
Cortes, he personally knew the latter who had been his neighbor in the poblacion of Baleno,
Masbate from 1978 to 1986. Besides, his wife was the cousin of Edwin.[22]

Hack wound at the level of the nape of the neck, almost completely detaching the head from the body.
A emulsion (sic) knee cartilage, Rt.
Due to the above-mentioned post mortem findings (sic) was made that death was caused by hack,
gunshot and incised wounds.[11]
Dr. Ulanday described the first, second and last wounds as serious but not fatal, although they
might have been secondary to infection. However, the three other wounds were fatal since they
injured vital organs such as the lungs, heart and liver.[12]
Witness Lydia Aparejado, widow of the victim, testified on how she learned of the killing of her
husband. At that time, she was in Baleno attending to the needs of their children who were studying
there. She further testified to the actual expenses incurred as a consequence of the death of her
husband, amounting to P5,000.00. She also demanded indemnification for the physical and mental
anguish she felt due to the killing of her husband, in an amount she left to the discretion of the court.

Accused Reynaldo Cortes corroborated the alibi of Teodulo, Jr., stating that he slept in the
latters house on the night of June 20, 1988 at Lagta, Baleno, Masbate. The latter had left early
morning of that day and came back only the following day. He denied having known the other
accused previous to the filing of the case except for Romarico Manlapaz who was a neighbor of
Teodulo, Jr. He claimed to be a cousin of the victims father but knew no enmity or ill feeling
between them. He likewise claimed to have been physically maltreated by the police during his
investigation.[23]
The principal suspect, Noli Salcedo, likewise denied complicity in the murder of Aparejado. He
claimed to have been in Manila working as a construction laborer from 1987 until August
1988. When asked the name of his employer and of the firm where he worked, he could not,
however, name either. At the latter date, he went back to Bantigue (in Masbate) to attend
the fiesta. He was later arrested in his hometown of Kinamaligan. At the time of his arrest, he had
tried to escape, as a result of which he was shot by one of the police officers. He denied knowing
the Aparejados and his other co-accused.[24]

[13]

P/Sgt. Jose Bajar of the Aroroy Police Station testified that he had conducted the investigation
of Accused Danilo Laurio, Juan [14] Sual, Jr. and Edison Banculo on August 22, 1988. The
investigation was in the form of questions and answers in the vernacular which were reduced into
writing.[15] During cross-examination, he admitted that the three were not assisted by counsel when
they signed their respective waivers--neither during the investigation nor at the time they affixed their
signatures to their respective statements.[16]
Pfc. Wencell[17] Esquilona, member of the INP (now PNP) Baleno Police Station, was
presented as a rebuttal witness for the prosecution. He stated that he had effected the arrest of six
of the accused, namely: Manlapaz, Cortes, Esquilona, Jr., Laurio, Banculo and Sual. As to the latter
three, Esquilona admitted that he was not armed with a warrant for their arrest but that he had only
received a wire from the headquarters that the three were suspects in the murder of Aparejado. At
the time of the arrest, he likewise recovered one lantaka, an armalite revolver and fatigue uniforms

Another accused, Romarico Manlapaz, also claimed that he had been in Manila from May 10,
1988 until February 1989 when he returned to Lagta, Baleno. He admitted knowing, among his coaccused, Teodulo Esquilona, Jr. and Reynaldo Cortes who were his neighbors in Lagta. As to the
rest, he only met them in jail. He also denied knowing the victim or his widow.[25]
Juanito Sual, Jr. stated that he was in his house in Gabi, Baleno, Masbate during the night of
the incident. He admitted affixing his signature to the statement marked Exhibit F for the
prosecution, but only because he could no longer bear the maltreatment of Policeman Wencell
Esquilona. He confirmed that he had not been assisted by counsel during his investigation, and
denied that he had been informed of his rights to remain silent and to be assisted by counsel of his
own choice. He also claimed that at the time he was apprehended, there was no warrant for his
arrest. He denied having been in the company of Noli Salcedo, whom he allegedly met in jail only in
the evening of June 20, 1988. He said that, among the other accused, he knew only Edison
Banculo, Danilo Laurio and Reynaldo Cortes prior to this case.[26]

Danilo Laurio stated that he was sleeping at the house of his adoptive parents in Balite,
Aroroy, Masbate, on the night that Honorio Aparejado was killed. At that time, his co-accused
Edison Banculo was in the same house. He controverted the statement of Prosecution Witness
Edwin Cortes that he was one of those who had killed Aparejado. He further denied having known
the victim or the latters wife prior to his murder. He also stated that at the time of his arrest, the
arresting officer was not armed with a warrant. Although he admitted having signed his alleged
sworn statement presented by the prosecution, he claimed that he was forced to do so after having
been physically abused by Policeman Wencell Esquilona.[27]
The adoptive mother of Accused Banculo and Laurio, Celia Laydo Entines, testified that she
and the two went gold-panning in her land at Baliti (or Balite), Aroroy, Masbate on June 20, 1988 at
daytime. About 7:00 oclock in the evening, they all went to sleep and woke up about 5:00 oclock
the following morning. To her knowledge, her two adopted sons did not leave the house that night.[28]
Two other witnesses were presented, corroborating the alibi of Cortes and Esquilona, Jr., and
also attesting to their good character.
Ruling of the Trial Court
In discrediting Accused-appellant Noli Salcedos sole defense of alibi, the court a
quo reasoned thus:

and company were not necessary and essential to the perpetration of the murder in question. Such
co-defendants may only be considered guilty as accomplices x x x.[30]
However, the trial court noted that the inclusion of Accused Romarico (Paco) Manlapaz,
Reynaldo Cortes and Teodulo Esquilona, Jr. in the charge was based solely on the extrajudicial
confessions of Edison Banculo, Juan Sual, Jr. and Danilo Laurio which, absent independent proof of
conspiracy, were not admissible evidence against alleged co-conspirators[31] under Section 27, Rule
130 of the Rules of Court. Thus, a judgment of acquittal was rendered in favor of Manlapaz, Cortes
and Esquilona, Jr.
The full dispositive portion of the questioned Decision reads as follows:
WHEREFORE, the Court finds accused NOLI SALCEDO guilty beyond reasonable doubt of the
crime of Murder and is sentenced to suffer the penalty of RECLUSION PERPETUA and to pay the
heirs of the victim in the amount of FIFTY THOUSAND (P50,000.00) PESOS.
Accused Edison Banculo, Juan Sual Jr. and Danilo Laurio as Accomplice (sic) in the crime of
Murder, they are hereby sentenced to suffer Indeterminate Penalty of EIGHT (8) YEARS and ONE
(1) DAY of Prision Mayor, as minimum, to FOURTEEN (14) YEARS and EIGHT (8) MONTHS of
Reclusion Temporal, as maximum, in the absence of any mitigating circumstance.
All instruments seized from the accused are hereby confiscated in favor of the government, to wit:

Accused Noli Salcedo has been clearly and positively identified by lone witness Edwin Cortes. His
alibi therefore, that he was in Manila at the time the heinous crime was perpetrated, cannot be
sustained. Moreover, after examining the evidence in support of his defense, the Court finds that his
alibi has the aspect of fabrication.
xxx
xxx

xxx

When asked by the prosecution the firm or the name of his employer where he was working in
Manila, he could not remember the construction firm neither the name of his employer. This is highly
impossible, considering the fact that he reports to work daily. While he may in the remote probability
forget one, he could not forget both."[29]
With respect to the other accused, the trial court explained their complicity this wise:
It is to be remembered that Edwin Cortes, witness for the prosecution knew only Noli Salcedo and
Bolodoy Calderon of the eight (8) who came to his house. x x x
The other accused were merely referred to by the witness as companions of Noli Salcedo and
Bolodoy Calderon. That he was able to pinpoint the other accused in Court is understandable
considering that when the above-named accused were under custodial interrogation, he was
present. Under such circumstances, he could well remember the faces of the six (6) accused for
purposes of implicating them.
Their participation in the criminal act appears to be limited to being present in the premises where
the acts of co-defendants who, other than being present, giving moral support to the principal
accused, cannot be said to constitute direct participation in the acts of execution and their presence

Exh. I - lantaka (homemade gun) long barrel;

Exh. L - armalite revolver, Smith and Wesson, US made;
Exh. L-1, L-2, L-3, L-4 - live ammos; and
Exh. L-5 and L-6 - empty shells.
In the service of their sentence, accused Edison Banculo, Juan Sual Jr. and Danilo Laurio shall be
given the full credit of their detention.
Accused Teodulo Esquilona, Jr., Reynaldo Cortes and Paco Manlapaz are hereby ACQUITTED.
Let an alias warrant of arrest be issued for the apprehension of the other accused who remain at
large up to the present, namely: Gemo Ibaez, Bolodoy Calderon, Gil Rapsing, Jose Fernandez,
Noe Albao, Ely Rapsing and Norie Huelva.[32]
Issues
In their appeal before us, accused-appellants aver that the trial court erred in not acquitting
them on the ground of reasonable doubt and in not giving due credit to their defense of denial and
alibi.[33] They claim that the prosecution failed to present clear and conclusive proof of conspiracy
and of the presence of all elements of the crime (without, however, specifying which element was not
proved). Thus, although alibi is an inherently weak defense, faced with the improbabilities and
uncertainties of the prosecutions evidence, it suffices to raise reasonable doubt as to the accuseds
responsibility.

The Solicitor General views Appellant Salcedos alibi as futile because he failed to prove that it
was physically impossible for him to have been at the scene of the crime at the time of its
commission. Further, the prosecution eyewitness positive identification of him as one of the culprits
pulverizes his already weak defense. The state counsel recommends, however, the acquittal of
Appellants Banculo, Sual, Jr. and Laurio on the ground that their extrajudicial confessions were
executed without the assistance of counsel and are, hence, inadmissible in evidence. He further
states that since the only evidence implicating them in the crime are these uncounselled
confessions, the constitutional presumption of innocence must be resolved in their favor.[34]
The Courts Ruling
After a careful scrutiny of the records, we find the recommendation of the Solicitor General
justified. Thus, we partially grant this appeal insofar as the conviction of Appellants Juanito Sual, Jr.,
Edison Banculo and Danilo Laurio is concerned. However, with regard to Appellant Noli Salcedo, in
the face of the clear and categorical testimony of Prosecution Witness Edwin Cortes who related in
minutiae the extent of Salcedos participation in the vicious slaughtering of the hapless victim, his
conviction must stand.

First Issue: Sufficiency of Prosecution Evidence

Against Appellants Banculo, Sual, Jr. and Laurio

Appellants Banculo, Sual, Jr. and Laurio deny complicity in the murder of Aparejado and refute
the voluntariness of the execution of their purported confessions. The three claim to have been
physically maltreated by the apprehending officer and forced to sign the statements prepared by the
police investigator. The trial judge, however, gave no credit to their allegations of maltreatment, and
further ruled against the objections of the defense counsel to the admissibility of appellants
statements on the ground that they had been taken without the assistance of counsel.
Significantly, the absence of counsel at the time of the investigation of the three above-named
appellants was confirmed by the police investigator himself, thus:
Q (When) Danilo Laurio signed the waiver, was he assisted by counsel?
A

No, sir.

Q How about Juanito Sual, when he signed Exhibit F, his waiver, when he signed the waiver
on Exhibit F, was he assisted by his counsel?
A

No, sir.

When he signed the entire body of your investigation was he also assisted by counsel?

No, sir.

How about Edison Banculo when he signed the waiver, was he assisted by counsel?

He was not assisted.

When he signed the entire investigation that you made?

Yes, sir.[35]

Under these circumstances, this Court is left with no choice but to exclude the sworn
statements of Laurio, Sual, Jr., and Banculo from the evidence against them. We recently had
occasion to discourse on the inviolability of the constitutional rights of a person under custodial
investigation and we find our pronouncement in People vs. Parel once more worth repeating:
Under Sec. 12, par. 1, Art. III, of the 1987 Constitution, any person under custodial investigation for
the commission of an offense shall have the right to be informed of his right to remain silent and to
have competent and independent counsel preferably of his own choice. If the person cannot afford
the services of counsel, he must be provided with one. These rights cannot be waived except in
writing and in the presence of counsel. The right to be informed carries with it the correlative
obligation on the part of the investigator to explain, and contemplates effective communication which
results in the subject understanding what is being conveyed. Since what is sought to be attained is
comprehension, the degree of explanation required will vary and depend on education, intelligence
and other relevant personal circumstances of the person being investigated. In further ensuring the
right to counsel of the person being investigated, it is not enough that the subject be informed of that
right; he should also be asked whether he wants to avail himself of the same and should be told that
he can hire a counsel of his own choice if he so desires or that one will be provided him at his
request. If he decides not to retain a counsel of his choice or avail himself of one to be provided him
and, therefore, chooses to waive his right to counsel, such waiver, to be valid and effective, must be
made with the assistance of counsel. That counsel must be a lawyer.
Even assuming that in the instant case the extrajudicial confession made by appellant spoke the
truth and was not extracted through violence or intimidation, still the failure of the police investigators
to inform appellant of his right to remain silent, coupled with the denial of his right to a competent
and independent counsel or the absence of effective legal assistance when he waived his
constitutional rights, rendered the confession inadmissible under Sec. 12, par. 3, Art. III, of the 1987
Constitution.[36] (Underscoring supplied.)
In People vs. Januario,[37] we reemphasized our unwavering commitment to safeguard our
peoples rights, particularly the right to counsel of persons under custodial investigation, as follows:
The 1987 Constitution was crafted and ordained at a historic time when our nation was reeling from
ghastly memories of atrocities, excesses and outright violations of our peoples rights to life, liberty
and property. Hence, our bill of rights was worded to emphasize the sanctity of human liberty and
specifically to protect persons undergoing custodial investigations from ignorant, overzealous and/or
incompetent peace officers. The Constitution so dearly values freedom and voluntariness that, inter
alia, it unequivocally guarantees a person undergoing investigation for the commission of an offense
not only the services of counsel, but a lawyer who is not merely (a) competent but also (b)
independent and (c) preferably of his own choice as well.
xxx
xxx

xxx

The Court understands the difficulties faced by law enforcement agencies in apprehending violators
of the law x x x. It sympathizes with the public clamor for the bringing of criminals before the altar of
justice. However, quick solution of crimes and the consequent apprehension of malefactors are not
the end-all and be-all of law enforcement. Enforcers of the law must follow the procedure mandated
by the Constitution and the law. Otherwise, their efforts would be meaningless. And their expenses
in trying to solve crimes would constitute needless expenditures of taxpayers money.

quantum of evidence required to warrant a conviction. Hence, the three appellants deserve an
acquittal.[42]
Against Appellant Salcedo
We cannot hold the same for Appellant Salcedo. He was positively and consistently identified
by Witness Edwin Cortes as the principal culprit. Upon the groups arrival at the witness house, it
was Salcedo who shouted for Cortes and Aparejado to get down from the house. He was the one
who gave orders for them to lie down on the ground, to be hogtied and to proceed to the other side
of the creek.[43] The witness was categorical in declaring that it was Salcedo who shot Aparejado
twice and hacked him after that. He testified:

This Court values liberty and will always insist on the observance of basic constitutional rights as a
condition sine qua non against the awesome investigative and prosecutory powers of government.
The constitutionally infirm confessions of appellants, therefore, cannot be given any iota of
consideration. And without such statements, the remaining prosecution evidence is sorely
inadequate to prove the participation of Banculo, Sual, Jr. and Laurio in the crime. The lone
prosecution eyewitness, Edwin Cortes, tried to implicate all the accused by describing the kind of
weapon each had been armed with during the night of the incident. [38] His statements relative thereto
are, however, suspect. In the rest of his testimony, he referred to the accused, other than Salcedo,
merely as Salcedos companions. On a specific question proffered by the public prosecutor,
Cortes admitted not knowing the identities of the other accused, thus:
Q Do you want to impress to this Honorable Court that you do not know the rest of the accused at
the time when this victim was killed?
A

Q When you were already lying flat on the ground near that creek what happened?
A

Noli Salcedo shot Honorio Aparejado.

Was Honorio Aparejado hit?

Yes, sir.

How far were you when you saw Honorio Aparejado ... Noli Salcedo when he shot Honorio
Aparejado?

Just near, about two meters.

How were you able to see that it was Noli Salcedo who shot Honorio Aparejado when it was
nighttime?

Yes, sir.[39]
Even during his earlier investigation by the police, he had already claimed not to have recognized
the other assailants. The relevant part of his sworn statement is as follows:

Q How many persons all in all did you see?

A

Eight.

I could recognize his voice and his physical built.

Of these eight persons were you able to recognize any one of them?

Was there a light at that time?

Yes, sir.

Yes, sir.

Who are they?

Noli Salcedo and Bolodoy Calderon.

How about the six, do you know them?

I do not know them.[40]

Without knowing the other accused at the time of the incident, it is quite unbelievable that the
witness could recall exactly what kind of weapon each carried that night. No sufficient and credible
evidence is in the records to overturn another constitutional right of the accused: the right to be
presumed innocent of any offense until the contrary is proved beyond reasonable doubt. Every
circumstance favoring their innocence must be taken into account and proof against them must
survive the test of reason. [41] Under the above circumstances, the prosecution failed to adduce that

xxx
xxx

xxx

How many times did Noli Salcedo shoot Honorio Aparejado?

Two times.

Then after shooting Honorio Aparejado, what else transpired?

He was hacked.

Do you want to tell us that Honorio Aparejado was again hacked?

Yes, sir.

What happened after you were told to lay flat faced down?

By whom?

While we were lying down, Noli Salcedo shot Norie Aparejado.

The companions of Noli Salcedo.

Was Norie Aparejado hit?

How about Noli Salcedo, did he hack Honorio Aparejado?

Yes sir.[45]

Yes, sir.

How many times?

Only once.[44]

Appellant Salcedo, instead of introducing evidence to show that the witness had evil motive in
imputing the crime to him, even admitted that he knew of no reason why Edwin Cortes would testify
falsely against him.[46] Consequently, Cortes positive and clear identification of Salcedo is sufficient
to convict him. It has been repeatedly held that the testimony of a single witness, if credible and
positive and satisfies the court as to the guilt of the accused beyond reasonable doubt, is sufficient
to convict.[47]

His testimony essentially affirmed his statements during the police investigation, thus:
QUESTION

Last June 20, 1988 at about 8:00 oclock in the evening where were you?

Second Issue: Alibi

In the light of the prior discussion exculpating Appellants Banculo, Sual, Jr. and Laurio from
the murder of Aparejado, we shall no longer discuss the sufficiency and worthiness of their alibi.

ANSWER I was in my house at Gabi, Baleno, Masbate.

xxx
xxx

xxx

Q While you were in your house on that date and time, do you remember of (sic) any
unusual incident that happened?
A

Yes sir.

Tell us what happened.

During that date and time several persons arrived and told us to go down.

How many persons all in all did you see?

Eight.

Of these eight persons were you able to recognize any one of them?

Yes sir.

Who are they?

Noli Salcedo and Bolodoy Calderon.

With respect to Appellant Salcedo, his defense of alibi, juxtaposed with the positive
identification made by Witness Cortes, pales in probative value and is totally inadequate to justify an
exoneration. Salcedo tried to establish that it was physically impossible for him to have been at the
scene of the crime since he was supposedly working in Manila at that time. But when asked by the
public prosecutor the name of his employer in Manila, he simply replied that he could not remember
anymore.[48] As aptly observed by the trial court, it is highly impossible for one not to remember either
the name of his employer or the firm where he had worked. [49] Salcedo did not even attempt to try to
recall either name. This lends grave doubt as to the truthfulness of his defense. The inherent
weakness of alibi as a defense was not overcome. Indubitably, it cannot prevail over the positive
identification made by the prosecution witness.[50]
Treachery

xxx
xxx

Although the trial court stated that the killing was qualified by treachery, it did not explain what
circumstances of treachery were present. Nonetheless, the facts established during trial
unmistakably point to the presence of means, method or form employed by the accused which
tended directly and specially to ensure the execution of the offense without risk to himself arising
from the defense that the offended party might make. The Court is satisfied that these essential
requirements of treachery were proven by clear and convincing evidence as conclusively as the
killing itself.[51]
In the case before us, there were eight assailants, at least one of whom was armed with a gun
and a bolo. It was sufficiently established by the prosecution that the victim had first been hogtied
and then made to lie down facing the ground. And it was in such position that Salcedo fatally shot
and hacked him. Obviously, the killing was attended by alevosia. Aparejado was rendered
defenseless and absolutely with no means to repel or evade the attack. [52] This qualifies the killing to
murder.

xxx

Damages

This Court observes that the trial court did not rule on the damages sought to be recovered by
the widow of the victim. Lydia Aparejado testified that she incurred expenses for the embalmment,
the coffin and funeral lot in the estimated amount of P5,000.00. Of such expenses, the Court can
only give credence to those supported by receipts and which appear to have been genuinely
incurred in connection with the death, wake and burial of the victim. [53] We scoured the records for
any receipt in support of her claim but found none. Actual damages cannot, therefore, be granted to
the victims heirs. However, we affirm the civil indemnity in the amount of P50,000.00 given by the
trial court. This is automatically awarded without need of further evidence other than the fact of the
victims death.

"That on or about the 5th day of August, 1989, at about 8:45 o'clock in the evening more or less, in
the City of Butuan, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused, in consideration of a prize, reward or promise by accused Guillermo A. Aringue, conniving
and confederating together and mutually helping one another, with the use of unlicensed firearms,
with deliberate intent to kill, taking advantage of superior strength, with treachery and evident
premeditation, accused Perciverando G. Pitao alias Bebot and Michael Cabal alias "Gonggong", did
then and there willfully, unlawfully and feloniously attack, assault and shot one NICOMEDES SALAS
hitting the latter on the chest (left side) and head (left side) and inflicting upon him the following
physical injuries to wit:

Anent moral damages, the victims widow did state that she suffered headaches due to the
death of her husband; with him gone, she worried about how to support her children. Moral
damages, which include physical suffering and mental anguish, may be recovered in criminal
offenses resulting in physical injuries [54] or the victims death, as in this case. The amount of moral
damages is left to the discretion of the court. Since the court a quo did not exercise such discretion,
this Court may do so because an appeal in a criminal case opens the whole case for review. This
Court now deems justified the award of moral damages in the amount of P50,000.00 to Lydia, the
wife of Honorio Aparejado.

"Internal hemorrhage due to gunshot wounds" and as a consequence of said injuries, Nicomedes A.
Salas died almost instantaneously."[1]

WHEREFORE, premises considered, the appeal is partially GRANTED. Appellants Edison

Banculo, Juanito Sual, Jr. and Danilo Laurio are hereby ACQUITTED on reasonable doubt and are
ordered RELEASED immediately unless they are being detained for some other legal cause. The
assailed Decision finding Noli Salcedo GUILTY beyond reasonable doubt of murder and imposing on
him the penalty of reclusion perpetua as well as the payment of the sum of P50,000.00 as indemnity
to the heirs of the victim, Honorio Aparejado y Fideles, is AFFIRMED. Furthermore, accusedappellant is also ordered to pay moral damages in the amount of P50,000.00 to the victims wife,
Lydia Aparejado. The other parts of the said Decision, insofar as they are not inconsistent with the
foregoing, are hereby also AFFIRMED.
SO ORDERED.

[G.R. No. 116487. December 15, 1997]

OPLE OF THE PHILIPPINES, plaintiff-appellee, vs. GUILLERMO ARINGUE y AMOGUIS alias Along,
MICHAEL CABAL y DUMADAG, alias Gonggong, and PERCIVERANDO PITAO y GUMAPAC,
alias Bebot, accused. MICHAEL CABAL y DUMADAG and PERCIVERANDO PITAO y
GUMAPAC, accused-appellants.

The three (3) pleaded not guilty when arraigned on November 21, 1989.[2]
The prosecution established that: On August 5, 1989, the victim Nicomedes A. Salas, together
with his wife Leticia and daughter Lotlot attended a school party at St. Joseph Institute of Technology
(SJIT) of which he was President. At 8:45 in the evening, they left SJIT and proceeded to their jeep,
a stainless, open (doorless) type, parked in front of the school's main gate. The place was
illuminated by two (2) fluorescent lights at the gate of the building and four (4) mercury lights in the
center island of Montilla Boulevard.[3]
Outside SJIT, Mr. Salas called his driver Rogelio Amora. Amora took the driver's seat and
started the engine. Lotlot sat at the rear seat. Mrs. Salas was about to board the jeep when she
heard a gunshot coming from her left side. She turned her head towards that direction and saw her
husband fall on the ground face down. At the same time, she noticed a man running away. The
man was 2 to 2 1/2 meters away from her. In a split second, another man, 1 1/2 meters away,
pointed his gun at her. Startled, she pointed her finger at him and shouted, "Hoy, hoy!". The man
did not shoot her, but fired at Mr. Salas, hitting him on the chest. Amora also saw the shooting. The
man fled towards La Viva, Montilla Boulevard. Mrs. Salas and Amora identified the man as
Perciverando Pitao.[4] Amora alighted from the jeep and ran towards the victim. They brought Mr.
Salas to Santos Clinic where he died at 9:30 p.m.
On August 6, 1989, Dr. Reinerio Durano, the City Health Officer of Butuan City, autopsied the
victim's body. He found the cause of death as severe internal hemorrhage due to two (2) gunshot
wounds. One of the bullets hit the left side of the chest, two inches below the mid-clavicular line and
passed through the chest and abdomen. It wounded the lungs, stomach, spleen and intestines and
pierced the left lateral abdominal wall. The other bullet hit his head between the mastoid bone and
the occipital prominence and wounded the left hemisphere of the brain. Both wounds were fatal.[5]

DECISION
PUNO, J.:

On August 8, 1989, at about six o'clock in the evening, Sgt. Leonardo Amora of the Philippine
Constabulary's 103rd Criminal Investigation Service (CIS) Field Office, received information that the
suspects in the killing of Nicomedes Salas were in Barangay Sumilihon. Sgt. Amora, along with
some members of the Butuan City Police proceeded to Sumilihon where they found accused Pitao
and Cabal playing basketball. Upon request of Sgt. Amora, accused Pitao and Cabal voluntarily
went to the Butuan City police station.[6]

On August 22, 1989, an information was filed before the Regional Trial Court, 10th Judicial
Region, Branch 1, Butuan City, charging Guillermo Aringue y Amoguis alias "Along", Michael
Cabal y Dumadag alias "Gonggong" and Perciverando Pitao y Gumapac alias "Bebot" of
murder committed as follows:

At about 11 o'clock in the evening of the same day, Cpl. Cipriano Cabaitan investigated
accused Cabal. Atty. Roldan Torralba (IBP - Agusan del Norte and Butuan City Chapter) was asked
by the police to assist in the investigation. [7] The investigation was conducted in the Visayan dialect
but was typewritten in English. After the investigation, Cpl. Cabaitan read and translated in Visayan

what he had typed to accused Cabal. Atty. Torralba, Capt. Arturo Pojas, and the Station
Commander were present as the statement was read to accused Cabal. In his statement, Cabal
admitted he killed Salas for P5,000.00. He implicated accused Pitao as the other assailant and
accused Aringue as the mastermind. Accused Cabal affixed his signature to the statement after Atty.
Torralba had signed it.[8]
With accused Cabal's revelation, accused Aringue was invited for questioning. Cpl. Cabaitan
asked accused Aringue whether he was willing to accept Atty. Torralba as counsel. When accused
Aringue acceded, Cpl. Cabaitan took his statement. The investigation was conducted in Visayan but
typewritten in English. After the investigation, the statement was read to accused Aringue.
[9]
Accused Aringue declared he planned the assassination of his half brother Nicomedes
Salas. Allegedly, Salas refused to deliver his share in the profits of San Jose Institute of Technology
(SJIT), notwithstanding that it was established with his money. He admitted providing the firearms
used in the killing.[10]
On August 9, 1989, between 6:00 to 7:00 in the morning, radio reporter Vicente "Boy"
Montederamos went to the Butuan City Police Station when he learned that the suspects in the
Salas' killing had been arrested. The Chief of Police gave him permission to interview the
suspects. In the tape recorded interview, the three accused admitted they killed Nicomedes
Salas. Montederamos made a transcription [11] of the taped interview and submitted it before the
court.[12]
At 9:00 a.m. of the same day, accused Pitao and Cabal, and some members of the Butuan
City Police went to Barangay Sumilihon to recover the firearms used in the shooting. Dionetela
Pitao, sister of accused Pitao turned over two .38 cal. Smith and Wesson revolvers and ten (10) live
ammunitions. Capt. Ernesto Muescan of the Philippine Constabulary (PC) Crime Laboratory, Camp
Evangelista, Cagayan de Oro City found that the bullet recovered from the body of Nicomedes
Salas, marked NS-1, and three (3) test bullets marked TD-1 to TD-3 (Exhs. R, R-1, R-2) turned over
by Dionetela, were fired from the same firearm. He likewise found that the bullet marked as NS-2
also recovered from the body of the victim, and three (3) test bullets marked T-63-1, T-63-2 and T63-4 (Exhs. R-3, R-4 and R-5) also among the bullets turned over by Dionetela, were fired from the
same firearm.[13]
In the evening of August 9, 1989, Mrs. Salas arrived at the police station. Escorted by a police
officer to the room where accused Pitao and Cabal were detained, she identified accused Pitao as
the second man who fired at her husband.[14]
On August 21, 1989, Judge Jose C. Adao issued a Warrant of Arrest against accused Aringue,
Cabal and Pitao.[15] They were apprehended and detained at the Butuan City Jail. [16] On May 17,
1990, accused Cabal and Pitao escaped. Pitao was re-arrested on June 26, 1990, while Cabal
surrendered on July 5, 1990.
To avoid conviction, the three accused offered alibi and repudiated their extrajudicial
confessions during the trial.
In his defense accused CABAL testified he was in his house the whole day and night of August
5, 1989. On August 8, 1989, he was playing basketball when several armed men approached
him. One of them, Sgt. Amora, held his hands while another poked a firearm at his back. Sgt.
Amora removed the six bullets from his revolver, inserted one bullet into the drum, turned it, and
asked him whether he killed Nicomedes Salas. When he denied the killing, Sgt. Amora pointed his
gun at him and played with the trigger. The police officers kept on asking him to confess. He

became frightened and gave a confession. He was brought at the police station and placed inside a
dark room. Sgt. Amora then ordered him to point at Aringue as the mastermind because the latter
had a serious disagreement with Nicomedes Salas. When Mrs. Salas arrived at the station, she was
told by Sgt. Amora that the killer already confessed.[17]
On the other hand, accused PITAO maintains he was not present at the scene of the crime for
he was working at their farm in Sumilihon. [18] He denied leaving Sumilihon, except when he attended
a bible seminar in Sto. Tomas, Davao del Norte. His diploma showed the seminar ended on June
12, 1988.[19]
On August 8, 1989, at about 5:00 p.m., he was playing basketball in Sumilihon, when Sgt.
Amora, together with armed men in military uniform, took him and Cabal to the Butuan Central
Police Station on a Tamaraw jeep. Inside the jeep, Sgt. Amora asked him whether he participated in
killing Nicomedes Salas. He denied it. At the police station, Sgt. Amora slapped him, held his chin
up and poured 7-up softdrink on his face. When he could no longer breathe, he admitted killing
Nicomedes Salas. When Leticia Salas arrived, Sgt. Amora told her the killer had been arrested. Mrs.
Salas slapped him.[20]
On August 9, 1989, between 8:00 and 9:00 a.m., Vicente "Boy" Montederamos, a radio
reporter, interviewed him in the presence of police officers. Sgt. Amora instructed him to give the
same answers to Montederamos as he had given to the police at the station. He was handcuffed to
a chair during the interview. When it was over, Sgt. Amora told him to go outside and point to the
alleged getaway car. He was made to hold a gun while his picture was being taken. At 10:00 a.m.,
he was brought to the Office of the Fiscal. He told the fiscal that his statement was untrue. He did
not sign it. Back at the police station, Corporal Cabaitan tore the statement to pieces and told Mrs.
Salas to just identify Pitao.[21] He escaped while detained at the City Jail as somebody told him he
would be liquidated.[22]
Accused ARINGUE testified that on August 8, 1989, at about 8 o'clock in the evening,
policemen came at his house and brought him to the police station. After his fingerprints were taken,
he was made to sit on a chair while handcuffed to an old folding bed. A policeman with armalite
guarded him. Later, Pfc. Ferdinand Dacillo entered the room and asked another policeman to start
the interrogation. The policeman approached him and pointed the armalite at his temple. The
policeman asked him to confess. He said that accused Cabal and Pitao had already
confessed. Then, they threatened to shoot him. Frightened, he admitted the crime. Then the
policemen led him to the second floor. He asked for Atty. Wilfred Asis and Corporal Cabaitan
assured him that Atty. Asis would be contacted. However, he was interrogated at 12:00 midnight
despite the absence of Atty. Asis. The investigation lasted for two (2) hours. Then, he was brought
to the office of Col. Polientes where he found Cpl. Cabaitan, Pfc. Dacillo, Sgt. Amora and Atty.
Torralba inside. Atty. Torralba asked him why he confessed. He told him he was afraid of the
policemen.[23]
On August 9, 1989, the police brought him to the office of Fiscal Ernesto Brocoy. The fiscal
read the statement to him in Visayan dialect and asked him whether he understood its contents. He
said yes and he was asked to sign it.[24]
The trial court rendered a decision dated December 10, 1993 convicting accused Pitao and
Cabal of murder and acquitting accused Aringue. The dispositive portion of the decision reads:
"WHEREFORE, in view of all the foregoing, this Court finds accused Michael Cabal and
Perciverando Pitao guilty beyond reasonable doubt of the crime of murder and hereby sentences

them to suffer imprisonment ofreclusion perpetua; to indemnify, jointly and severally, the heirs of the
victim Nicomedes A. Salas in the sum of P536,113.00 as actual damages, P2,000,000.00 as moral
damages, and to pay the costs.

"Q: What did you shout?

"Accused Guillermo Aringue is hereby acquitted on reasonable doubt. The immediate release of
Guillermo Aringue is hereby ordered only as it affects this case and for as long as there is no order
requiring his continued detention.

"Q: What did you do with your forefinger?

"SO ORDERED." [25]

"A: I shouted `hoy, hoy?' with my forefinger (sic).

"A: I pointed at him, I said `Hoy, hoy!'.

"Q: And what did this man do after you pointed your finger to him calling him `Hoy, hoy!'.

On December 22, 1993, accused Pitao and Cabal filed their Notice of Appeal. In their Brief,
they contended that:
"I
"THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS INSPITE (sic)
THEIR INADMISSIBLE CONFESSION.
"II
"THE LOWER COURT ERRED IN CONVICTING THE ACCUSED-APPELLANTS BASED ON
FACTS WHICH ARE CONTRARY TO THE TESTIMONY OF THE WITNESSES, BOTH BY THE
PROSECUTION AND BY THE DEFENSE." [26]
The appeal has no merit.
It is incorrect for appellants to make it appear that they were convicted solely on the basis of
their extrajudicial confessions. In truth, the trial court disregarded their confessions after finding that
they were extracted without the assistance of a competent and independent counsel. [27] But, even
without their confessions, the trial court found enough evidence to convict them.
Appellant Pitao was positively identified by Leticia Salas and Rogelio Amora, the wife and the
driver of the victim, respectively. The trial court noted that Mrs. Salas was face to face with Pitao
when the latter pointed his gun at her:
"ATTY. ROSALES (Private Prosecutor):
"Q: What else did you observe after seeing Mr. Salas fallen down with face up (sic), if there
was any?

"A: He triggered (sic) his gun and shot my husband here who was lying down (witness
pointing at her left chest indicating the location of the gunshot wound.)
"x x x.
"Q: Mrs. Salas, how far was that person from you when you saw him pointing his gun?
"A: Very near.
"Q: Very near and how far is very near?
"A: He must have been there at this distance (interpreter estimating...).
INTERPRETER
A distance of 1 1/2 meters, more or less.
"x x x." [28]
Appellant Pitao questions the accuracy of Mrs. Salas' identification. He contends that it was at the
police station where Mrs. Salas saw him for the first time and it was the police who suggested to her
that he was the killer. We are unpersuaded. On the contrary, Mrs. Salas testified she saw Pitao
clearly at the scene of the crime:
"Q: Will you please describe the lighting facilities in the vicinity where your husband was
shot?
"A: There were two (2) lights at the gate and there were four (4) big lights in the island
without water.

"MRS. LETICIA SALAS:

"x x x.
"A: I saw one man running away and I saw another man pointing his gun at me.
"Q: How many?
"Q: What was your reaction when you saw that man pointing his gun at you?
"A: There were four (4) big lamps and they were lighted at that time.
"A: I shouted at him.
"x x x.

"Q: How about the lighting at the gate of SJIT, what kind of lights were they?

"Q: And who followed her next?

"A: There were two (2) big flourescent lamps at the gate and there was one big light of the
computer at the third floor which can light down which is about 40 watts and there were lights
in the building and in the high school building about five of them. (sic)

"A: Followed by Mrs. Salas but before she could get inside the jeep, I heard a shout.

"Q: Were you able to look at the face of the person whom you said pointed a gun at you?

"A: Mrs. Salas.

"x x x.

"Q: What words did she utter when she shouted?

"Q: Who was that person shouting?

COURT:

"A: Hoy! Hoy!

That person pointing a gun at a distance of 1 1/2 meters, did you see him?

"Q: And what happened then after you heard those two words "Hoy! Hoy?"

"A: Yes, sir.

"A: I turned my head towards the voice and I saw a person who fired upon Mr. Salas.

"x x x.

"x x x.

"Q: Kindly go and point to him? (Witness descending from the witness stand and pointed to a
person who upon being asked answered with the name PERCIVERANDO PITAO." [29]

"Q: Were you able to see that person? If you can see that person again will you be able to
recognize him, that person who fired the shot?

And on cross-examination, Mrs. Salas belied Pitao's claim that she pointed to him on police
behest:

"A: Yes, sir.

"Q: So, you went to the police in order to pinpoint to (sic) the man. Is that correct?

"Q: Now look around this courtroom and tell us whether that person whom you said you saw fire
that shot inside the courtroom?

"A: Nobody ordered me, Attorney.

"A: That fellow wearing an orange T-shirt.

"Q: But, who told you to go to the police station?

"Interpreter:

"A: They asked me if I could identify.

"Q: What is your name?

"Q: That's it?

"A: Perciverando Pitao. [31]

"A: So, they did not order me that is the one. No, I was the one who said that is the man." [30]
To corroborate Mrs. Salas' testimony, Amora testified it was Pitao whom he saw shoot
Nicomedes Salas:
"ATTY. ROSALES (Private Prosecutor):
"Q: Upon arriving at the jeep and you were already seated down, what did this three (3) persons or
anyone of them do, Mr. Salas, Mrs. Salas, Lotlot Salas, if any?

On the other hand, ample circumstantial evidence proves beyond reasonable doubt that Cabal
is one of Nicomedes Salas' two assailants. First, Leticia Salas testified she saw two (2) men fire at
her husband, although she was unable to recognize the first one who was already running when she
caught sight of him.[32]
Secondly, prosecution witness Armando Bernal testified that a few minutes after the shooting,
Pitao and Cabal requested him to transport them from Butuan City to Sumilihon.[33]
Thirdly, while detained at the Butuan City Jail, Cabal freely admitted his complicity to radio
reporter, Vicente "Boy" Montederamos:

"AMORA:
"BOY MONTEDERAMOS:
"A: Lotlot Salas got inside the jeep first.

"Q: Who ordered you to kill Nicomedes Salas?

Reviewing the award of indemnity to the heirs of the victim, we note that the trial judge lumped
together the awards of moral damages, attorney's fees and lost earnings of the victim for a total sum
of two million pesos (P2,000,000.00). This is an error, for the aforementioned awards are different in
nature, and hence require separate determination.

"MICHAEL CABAL:
"A: Guillermo Aringue.

Leticia Salas testified that the victim was 49 years old at the time he died. [40] He was serving
the first year of his three-year term, as member of the Sangguniang Panlalawigan, for which he
received a monthly salary of P14,185.00.[41] His gross income for the next three years would
be P553,215.00.[42] Allowing a deduction of 50%[43] from his gross income as his reasonable and
necessary living expense, his lost earnings as councilor for three years would be P276,607.50. As
president and founder of San Jose Institute of Technology (SJIT), the victim received an income
of P5,000.00 a month.[44] His gross annual income would amount to P65,000. Applying the
formula[45] net earning capacity = life expectancy[46] x [gross annual income - reasonable and
necessary living expenses (50%)], we determine his lost earnings to be P671,666.64. In its totality,
the lost earnings of the victim amount to P948,274.14.[47]

"Q: What was your agreement?

"A: According to him, he would give us five thousand then he will have us land a job and afterwards
we would receive an award.
"Q: After you killed Nick Salas, where you given something in fulfillment of your agreement?
"A: None.

We set aside the award of P536,113.00 as actual damages for lack of basis. During the trial,
private complainant Leticia Salas testified that the following amounts were spent as a consequence
of her husband's untimely death: P33,000.00 for food during the eleven (11) days of
prayer; P70,000.00 for the funeral parlor; P30,000.00 for food during the burial; P500.00 for fees to
the church; P5,000.00 for mourning clothes; P20,000.00 for food during the 40th day
service; P5,000.00 for tomb construction; P1,000.00 for gasoline; P495.00 for the hospitalization of
Nicomedes Salas; and P200.00 for telegrams. These expenses totalled P165,195.00.

"Q: Who gave you the firearm which you used in shooting Salas?
"A: Guillermo Aringue."[34]
His confession to Montederamos, a private person, is admissible against him, not having been
extracted under custodial investigation.[35]
And last, Cabal escaped while detained at the Butuan City Jail. Escape is evidence of guilt.[36]
Appellants' alibi is unconvincing. Both alleged they were in Sumilihon when Nicomedes Salas
was killed in Butuan City. However, not a single person corroborated their alibi. [37] On the contrary,
Pitao was positively identified [38] while Cabal was seen by witness Bernal in Butuan City on that fatal
night:
"ATTY. ROSALES (Private Prosecutor):
"Q: In what place did this two persons request you to take them away from the City Proper (sic)?
"A: They were inside the house of my boss.
"Q: And where is that house of your boss located?
"A: At Guingona, 1st Street, Butuan City.
"Q: At what time when they went to see you on August 5, 1989 to request you to take them out of
Butuan City?
"A: I could not exactly state the exact time when they requested me to conduct them outside of
Butuan City but maybe it was around 9:00 o'clock because at that time we were busy because
there was a birthday celebration.[39]

We find the award of P2,000,000.00 as moral damages to be excessive. Although no proof of

pecuniary loss is required in the assessment of moral damages, the award is essentially by way of
indemnity or reparation.[48] Moral damages are not awarded to punish the defendant but to
compensate the victim.[49] The award is not meant to enrich the victim at the expense of the
defendant.[50] We find that an award of P50,000.00 is commensurate to the emotional suffering of the
victim's heirs. Additionally, we award P50,000.00 as indemnity by reason of the death of the victim in
accord with Article 2206 of the Civil Code and prevailing jurisprudence. [51] The award of attorney's
fees is set at P25,000.00 which is reasonable considering that the proceedings at the lower court
lasted four years.[52]
IN VIEW WHEREOF, the decision of the Regional Trial Court is AFFIRMED with the
modification that the monetary award shall be in the following sums: P50,000.00 as indemnity for
the death of Nicomedes Salas; P948,274.14 as lost earnings of the victim; P165,195.00 as actual
damages; P50,000.00 as moral damages; and P25,000.00 as attorney's fees. Costs against
appellants.
SO ORDERED.

[G.R. No. 116437. March 3, 1997]

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. PABLITO ANDAN y HERNANDEZ @
BOBBY,accused-appellant.
DECISION
PER CURIAM:
Accused-appellant Pablito Andan y Hernandez alias "Bobby" was accused of the crime of rape
with homicide committed as follows:

"That on or about the 19th day of February 1994, in the municipality of xxx, province of xxx,
Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, with lewd
design, by means of violence and intimidation, did then and there wilfully, unlawfully and feloniously
have carnal knowledge of one AAA against her will and without her consent; and the above-named
accused in order to suppress evidence against him and delay (sic) the identity of the victim, did then
and there wilfully, unlawfully and feloniously, with intent to kill the said AAA, attack, assault and hit
said victim with concrete hollow blocks in her face and in different parts of her body, thereby inflicting
upon her mortal wounds which directly caused her death.

5.1 maxillary bone, right.

5.2 mandible, multiple, complete, right, with avulsion of 1st and 2nd incisors.

Contrary to Law."[1]

8. Laboratory examination of smear samples from the vaginal cavity showed negative for
spermatozoa (Bulacan Provincial Hospital, February 22, 1994, by Dr. Wilfredo S. de Vera).
CAUSE OF DEATH: Cardiorespiratory Arrest due to Cerebral Contusions due to Traumatic Injuries,
Face."[3]

The prosecution established that on February 19, 1994 at about 4:00 P.M., in xxx, AAA, twenty
years of age and a second-year student at the xxx, left her home for her school dormitory in xxx. She
was to prepare for her final examinations on February 21, 1994. AAA wore a striped blouse and
faded denim pants and brought with her two bags containing her school uniforms, some personal
effects and more than P2,000.00 in cash.
AAA was walking along the subdivision when appellant invited her inside his house. He used
the pretext that the blood pressure of his wife's grandmother should be taken. AAA agreed to take
her blood pressure as the old woman was her distant relative. She did not know that nobody was
inside the house. Appellant then punched her in the abdomen, brought her to the kitchen and raped
her. His lust sated, appellant dragged the unconscious girl to an old toilet at the back of the house
and left her there until dark. Night came and appellant pulled AAA, who was still unconscious, to
their backyard. The yard had a pigpen bordered on one side by a six-foot high concrete fence. On
the other side was a vacant lot. Appellant stood on a bench beside the pigpen and then lifted and
draped the girl's body over the fence to transfer it to the vacant lot. When the girl moved, he hit her
head with a piece of concrete block. He heard her moan and hit her again on the face. After silence
reigned, he pulled her body to the other side of the fence, dragged it towards a shallow portion of the
lot and abandoned it.[2]
At 11:00 A.M. of the following day, February 20, 1994, the body of AAA was discovered. She
was naked from the chest down with her brassiere and T-shirt pulled toward her neck. Nearby was
found a panty with a sanitary napkin.
The autopsy conducted by Dr. xxx revealed that AAA died of "traumatic injuries" sustained as
follows:
"1. Abrasions:
1.1 chest and abdomen, multiple, superficial, linear, generally oblique from right to left.
2. Abrasions/contusions:
2.1 temple, right.
2.2 cheek, right.
2.3 upper and lower jaws, right.
2.4 breast, upper inner quadrant, right.
2.5 breast, upper outer quadrant, left.
2.6 abdomen, just above the umbilicus, rectangular, approximate 3 inches in width, from
right MCL to left AAL.
2.7. elbow joint, posterior, bilateral.
3. Hematoma:
3.1 upper and lower eyelids, bilateral.
3.2 temple, lateral to the outer edge of eyebrow, right.
3.3 upper and lower jaws, right.
4. Lacerated wounds:
4.1 eyebrow, lateral border, right, 1/2 inch.
4.2 face, from right cheek below the zygoma to midline lower jaw, 4 inches.
5. Fractures:

6. Cerebral contusions, inferior surface, temporal and frontal lobes, right.

7. External genitalia
7.1 minimal blood present.
7.2 no signs of recent physical injuries noted on both labia, introitus and exposed vaginal wall.

AAA's gruesome death drew public attention and prompted Mayor xxx of xxx to form a crack
team of police officers to look for the criminal. Searching the place where AAA's body was found, the
policemen recovered a broken piece of concrete block stained with what appeared to be blood. They
also found a pair of denim pants and a pair of shoes which were identified as AAA's.[4]
Appellant's nearby house was also searched by the police who found bloodstains on the wall
of the pigpen in the backyard. They interviewed the occupants of the house and learned from
Romano Calma, the stepbrother of appellant's wife, that accused-appellant also lived there but that
he, his wife and son left without a word. Calma surrendered to the police several articles consisting
of pornographic pictures, a pair of wet short pants with some reddish brown stain, a towel also with
the stain, and a wet T-shirt. The clothes were found in the laundry hamper inside the house and
allegedly belonged to appellant.[5]
The police tried to locate appellant and learned that his parents live in xxx. On February 24 at
11:00 P.M., a police team led by Mayor xxx traced appellant in his parents' house. They took him
aboard the patrol jeep and brought him to the police headquarters where he was interrogated.
Initially, appellant denied any knowledge of AAA's death. However, when the police confronted him
with the concrete block, the victim's clothes and the bloodstains found in the pigpen, appellant
relented and said that his neighbors, Gilbert Larin and Reynaldo Dizon, killed AAA and that he was
merely a lookout. He also said that he knew where Larin and Dizon hid the two bags of AAA.
[6]
Immediately, the police took appellant to his house. Larin and Dizon, who were rounded up earlier,
were likewise brought there by the police. Appellant went to an old toilet at the back of the house,
leaned over a flower pot and retrieved from a canal under the pot, two bags which were later
identified as belonging to AAA. Thereafter, photographs were taken of appellant and the two other
suspects holding the bags.[7]
Appellant and the two suspects were brought back to the police headquarters. The following
day, February 25, a physical examination was conducted on the suspects by the Municipal Health
Officer, Dr. xxx.[8] Appellant was found to sustain:
"HEENT: with multiple scratches on the neck Rt side. Chest and back: with abrasions
(scratches at the back). Extremities: freshly-healed wound along index finger 1.5 cm. in size
Lt."[9]

By this time, people and media representatives were already gathered at the police
headquarters awaiting the results of the investigation. Mayor xxx arrived and proceeded to the
investigation room. Upon seeing the mayor, appellant approached him and whispered a request that
they talk privately. The mayor led appellant to the office of the Chief of Police and there, appellant
broke down and said "Mayor, patawarin mo ako! I will tell you the truth. I am the one who killed
AAA." The mayor opened the door of the room to let the public and media representatives witness
the confession. The mayor first asked for a lawyer to assist appellant but since no lawyer was
available he ordered the proceedings photographed and videotaped. [10] In the presence of the mayor,
the police, representatives of the media and appellant's own wife and son, appellant confessed his
guilt. He disclosed how he killed AAA and volunteered to show them the place where he hid her
bags. He asked for forgiveness from Larin and Dizon whom he falsely implicated saying he did it
because of ill-feelings against them. [11] He also said that the devil entered his mind because of the
pornographic magazines and tabloid he read almost everyday.[12] After his confession, appellant
hugged his wife and son and asked the mayor to help him. [13] His confession was captured on
videotape and covered by the media nationwide.[14]
Appellant was detained at the police headquarters. The next two days, February 26 and 27,
more newspaper, radio and television reporters came. Appellant was again interviewed and he
affirmed his confession to the mayor and reenacted the crime.[15]
On arraignment, however, appellant entered a plea of "not guilty." He testified that in the
afternoon of February 19, 1994 he was at his parent's house in xxx attending the birthday party of
his nephew. He, his wife and son went home after 5:00 P.M. His wife cooked dinner while he
watched their one-year old son. They all slept at 8:00 P.M. and woke up the next day at 6:00 in the
morning. His wife went to Manila to collect some debts while he and his son went to his parents'
house where he helped his father cement the floor of the house. His wife joined them in the
afternoon and they stayed there until February 24, 1994 when he was picked up by the police.[16]
Appellant was brought by the police to a hotel at xxx. In one of the rooms, the policemen
covered his face with a bedsheet and kicked him repeatedly. They coerced him to confess that he
raped and killed AAA. When he refused, they pushed his head into a toilet bowl and injected
something into his buttocks. Weakened, appellant confessed to the crime. Thereafter, appellant was
taken to his house where he saw two of his neighbors, Larin and Dizon. He was ordered by the
police to go to the old toilet at the back of the house and get two bags from under the flower pot.
Fearing for his life, appellant did as he was told.[17]
In a decision dated August 4, 1994, the trial court convicted appellant and sentenced him to
death pursuant to Republic Act No. 7659. The trial court also ordered appellant to pay the victim's
heirs P50,000.00 as death indemnity, P71,000.00 as actual burial expenses and P100,000.00 as
moral damages, thus:
"WHEREFORE, in view of the foregoing, Pablito Andan y Hernandez alias "Bobby" is found guilty by
proof beyond a scintilla of doubt of the crime charged in the Information (Rape with Homicide) and
penalized in accordance with R.A. No. 7659 (Death Penalty Law) Sec. 11, Par. 8, classifying this
offense as one of the heinous crimes and hereby sentences him to suffer the penalty of DEATH; to
indemnify the family of AAA the amount of P50,000.00 for the death of AAA and P71,000.00 as
actual burial and incidental expenses and P100,000.00 as moral damages. After automatic review of
this case and the decision becomes final and executory, the sentence be carried out.
SO ORDERED."[18]

II THE LOWER COURT ERRED IN FINDING THAT THERE WAS RAPE WHEN THERE IS NO
EVIDENCE OF ANY KIND TO SUPPORT IT;
III THE LOWER COURT ERRED IN MAKING A FINDING OF CONVICTION WHEN THE
EVIDENCE IN ITS TOTALITY SHOWS THAT THE PROSECUTION FAILED TO PROVE
BEYOND REASONABLE DOUBT THE GUILT OF THE ACCUSED."[19]
The trial court based its decision convicting appellant on the testimonies of the three
policemen of the investigating team, the mayor of xxx and four news reporters to whom appellant
gave his extrajudicial oral confessions. It was also based on photographs and video footages of
appellant's confessions and reenactments of the commission of the crime.
Accused-appellant assails the admission of the testimonies of the policemen, the mayor and
the news reporters because they were made during custodial investigation without the assistance of
counsel. Section 12, paragraphs (1) and (3) of Article III of the Constitution provides:
"SECTION 12.(1) Any person under investigation for the commission of an offense shall have the
right to be informed of his right to remain silent and to have competent and independent counsel
preferably of his own choice. If the person cannot afford the services of counsel, he must be
provided with one. These rights cannot be waived except in writing and in the presence of counsel.
(2) x x x
(3)Any confession or admission obtained in violation of this or Section 17 hereof shall be
inadmissible in evidence against him.
(4) x x x"
Plainly, any person under investigation for the commission of an offense shall have the right (1) to
remain silent; (2) to have competent and independent counsel preferably of his own choice; and (3)
to be informed of such rights. These rights cannot be waived except in writing and in the presence of
counsel.[20] Any confession or admission obtained in violation of this provision is inadmissible in
evidence against him.[21] The exclusionary rule is premised on the presumption that the defendant is
thrust into an unfamiliar atmosphere and runs through menacing police interrogation procedures
where the potentiality for compulsion, physical and psychological, is forcefully apparent.
[22]
The incommunicadocharacter of custodial interrogation or investigation also obscures a later
judicial determination of what really transpired.[23]
It should be stressed that the rights under Section 12 are accorded to "[a]ny person under
investigation for the commission of an offense." An investigation begins when it is no longer a
general inquiry into an unsolved crime but starts to focus on a particular person as a suspect, i.e.,
when the police investigator starts interrogating or exacting a confession from the suspect in
connection with an alleged offense.[24] As intended by the 1971 Constitutional Convention, this
covers "investigation conducted by police authorities which will include investigations conducted by
the municipal police, the PC and the NBI and such other police agencies in our government."[25]
When the police arrested appellant, they were no longer engaged in a general inquiry about
the death of AAA. Indeed, appellant was already a prime suspect even before the police found him
at his parents' house. This is clear from the testimony of SPO4 xxx, the police chief investigator of
the crime, viz:

How did you come about in concluding that it was accused who did this act?
This case is before us on automatic review in accordance with Section 22 of Republic Act "COURT
No.
7659 amending Article 47 of the Revised Penal Code.
WITNESS
First, the place where AAA was last found is at the backyard of the house of
the accused. Second, there were blood stains at the pigpen, and third, when we asked
Appellant contends that:
Romano Calma who were his other companions in the house, he said that, it was Pablito
Andan who cannot be found at that time and whose whereabouts were unknown, sir.
"I THE LOWER COURT ERRED IN ADMITTING AND USING AS BASIS OF JUDGMENT OF
CONVICTION THE TESTIMONIES OF THE POLICE INVESTIGATORS, REPORTERS AND
Q
So you had a possible suspect?
THE MAYOR ON THE ALLEGED ADMISSION OF THE ACCUSED DURING THE
CUSTODIAL INVESTIGATION, THE ACCUSED NOT BEING ASSISTED BY COUNSEL IN
A
Yes, sir.
VIOLATION OF THE CONSTITUTION;
Q
You went looking for Pablito Andan?

Yes, sir.

And then, what else did you do?

A
We tried to find out where we can find him and from information we learned
that his parents live in xxx. We went there, found him there and investigated him and in fact
during the investigation he admitted that he was the culprit."[26]

The admission was made twice. The first one was, when we were alone and the second one
was before the media people, sir.

What else did he tell you when you were inside the room of the Chief of Police?

These were the only things that he told me, sir. I stopped him from making further admissions
because I wanted the media people to hear what he was going to say, sir."[31]

Appellant was already under custodial investigation when he confessed to the police. It is admitted
that the police failed to inform appellant of his constitutional rights when he was investigated and
interrogated.[27] His confession is therefore inadmissible in evidence. So too were the two bags
recovered from appellant's house. SPO2 xxx, a member of the investigating team testified:

Under these circumstances, it cannot be successfully claimed that appellant's confession

before the mayor is inadmissible. It is true that a municipal mayor has "operational supervision and
control" over the local police [32] and may arguably be deemed a law enforcement officer for purposes
of applying Section 12 (1) and (3) of Article III of the Constitution. However, appellant's confession
to the mayor was not made in response to any interrogation by the latter. [33] In fact, the mayor did not
question appellant at all. No police authority ordered appellant to talk to the mayor. It was appellant
himself who spontaneously, freely and voluntarily sought the mayor for a private meeting. The mayor
did not know that appellant was going to confess his guilt to him. When appellant talked with the
mayor as a confidant and not as a law enforcement officer, his uncounselled confession to him did
not violate his constitutional rights. [34] Thus, it has been held that the constitutional procedures on
custodial investigation do not apply to a spontaneous statement, not elicited through questioning by
the authorities, but given in an ordinary manner whereby appellant orally admitted having committed
the crime.[35] What the Constitution bars is the compulsory disclosure of incriminating facts or
confessions. The rights under Section 12 are guaranteed to preclude the slightest use of coercion by
the state as would lead the accused to admit something false, not to prevent him from freely and
voluntarily telling the truth.[36] Hence we hold that appellant's confession to the mayor was correctly
admitted by the trial court.

"Atty. Valmores: You told the court that you were able to recover these bags marked as Exhs.
B and B-1 because accused pointed to them, where did he point these bags?
A At the police station, sir, he told us that he hid the two (2) bags beneath the canal of the
toilet.
Q

In other words, you were given information where these two (2) bags were located?

Yes, sir.

And upon being informed where the two (2) bags could be located what did you do?

A We proceeded to the place together with the accused so that we would know where the
two (2) bags were hidden, sir.

Appellant's confessions to the media were likewise properly admitted. The confessions were
made in response to questions by news reporters, not by the police or any other investigating officer.
We have held that statements spontaneously made by a suspect to news reporters on a televised
interview are deemed voluntary and are admissible in evidence.[37]

Q And did you see actually those two (2) bags before the accused pointed to the place
where the bags were located?
A After he removed the broken pots with which he covered the canal, he really showed
where the bags were hidden underneath the canal, sir."[28]

The records show that Alex Marcelino, a television reporter for "Eye to Eye" on Channel 7,
interviewed appellant on February 27, 1994. The interview was recorded on video and showed that
appellant made his confession willingly, openly and publicly in the presence of his wife, child and
other relatives.[38] Orlan Mauricio, a reporter for "Tell the People" on Channel 9 also interviewed
appellant on February 25, 1994. He testified that:

The victim's bags were the fruits of appellant's uncounselled confession to the police. They are
tainted evidence, hence also inadmissible.[29]
The police detained appellant after his initial confession. The following day, Mayor xxx visited
the appellant. Appellant approached the mayor and requested for a private talk. They went inside a
room and appellant confessed that he alone committed the crime. He pleaded for forgiveness.
Mayor xxx testified, viz:
"Mayor xxx: x x x. During the investigation when there were already many people from the media,
Andan whispered something to me and requested that he be able to talk to me alone, so what
I did was that, I brought him inside the office of the chief of police.
Private Prosecutor Principe: And so what happened inside the office of the Chief of Police, mayor?
A

While inside the office of the headquarters he told me "Mayor patawarin mo ako,! I will tell you
the truth. I am the one who killed AAA." So when he was telling this to me, I told him to wait a
while, then I opened the door to allow the media to hear what he was going to say and I asked
him again whether he was the one who did it, he admitted it, sir. This was even covered by a
television camera."[30]
xxx

xxx
xxx

During that time that Pablito Andan whispered to you that he will tell you something and then
you responded by bringing him inside the office of the Chief of Police and you stated that he
admitted that he killed AAA . . .

Court:

He said to you the following words . . .

Atty. Principe: He said to you the following words "Mayor, patawarin mo ako! Ako ang pumatay kay
AAA," was that the only admission that he told you?

"Atty. Principe: You mentioned awhile ago that you were able to reach the place where the body of
AAA was found, where did you start your interview, in what particular place?
Mr. Mauricio: Actually, I started my newsgathering and interview inside the police station of xxx and I
identified myself to the accused as I have mentioned earlier, sir. At first, I asked him whether
he was the one who raped and killed the victim and I also learned from him that the victim was
his cousin.
Q

And what was the response of Pablito Andan?

His response was he is a cousin of the victim and that he was responsible for raping and killing
the victim, sir. And then I asked him whether his admission was voluntary or that there was a
threat, intimidation or violence that was committed on his person because I knew that there
were five other suspects in this case and he said that he was admitting it voluntarily to the
policemen. I asked him whether he was under the influence of drugs but he said no, and
"nakainom lang," sir.

You mentioned earlier that the uncle of the accused was present, was the uncle beside him at
the time that you asked the question?

The uncle was there including the barangay captain whose name I cannot recall anymore. A
barangay captain of the place, I don't know if it is the place of the crime scene or in the place
where AAA resides but . . . All throughout the scene inside the office of the Station
Commander, there was no air of any force or any threatening nature of investigation that was
being done on the suspect, that is why, I was able to talk to him freely and in a voluntary
manner he admitted to me that he was the one who raped and killed, so we went to the next

stage of accompanying me to the scene of the crime where the reenactment and everything
that transpired during the killing of AAA.
Q
A

Before you started that interview, did you inform or ask permission from the accused Pablito
Andan that you were going to interview him?

Yes, yes, sir. And if I remember it right, as I took my camera to take some pictures of the
suspect, the mayor, the policemen and several others, I heard the group of Inday Badiday
asking the same questions from the suspect and the suspect answered the same.

Also in the presence of so many people that you mentioned?

Yes, sir.

The same group of people who were there, sir.

You mentioned that the answer was just the same as the accused answered you affirmatively,
what was the answer, please be definite?

xxx
Q

You mentioned that after interviewing the accused at the office of the xxx PNP, you also went to
the scene of the crime?

Court:

Yes, sir.

Who accompanied you?

I was accompanied by some xxx policemen including Mayor xxx and some of the relatives of
the accused.

Use the vernacular.

I asked him the question, after asking him the question," Ikaw ba talaga and gumawa ng
pagpatay at pag-rape sa kay AAA? Ang sagot nya, "Oo." "Alam mo ba itong kasalanang ito,
kamatayan ang hatol, inaamin mo pa ba na ikaw ang gumawa sa pagpatay at pag-rape kay
AAA?" Sagot pa rin siya ng "Oo."
xxx

At this time, did you see the wife of the accused, Pablito Andan?

Did you ask him, why did you kill AAA?

Yes, sir, I saw her at the place where the body of AAA was recovered.

How many relatives of accused Pablito Andan were present, more or less?

I asked him, your Honor and the reason he told me was because a devil gripped his mind and
because of that according to him, your Honor, were the pornographic magazines,
pornographic tabloids which he, according to him, reads almost everyday before the crime.

There were many, sir, because there were many wailing, weeping and crying at that time when
he was already taken in the patrol jeep of the xxx police, sir.

Atty. Principe: At the time of your interview, Mr. Reporter, will you tell the court and the public what
was the physical condition of accused Pablito Andan?

Now, Mr. Mauricio, upon reaching the scene of the crime in xxx, what transpired?

I started my work as a reporter by trying to dig deeper on how the crime was committed by the
accused, so we started inside the pigpen of that old house where I tried to accompany the
accused and asked him to narrate to me and show me how he carried out the rape and killing
of AAA, sir.

Court:

Did he voluntarily comply?

Court:

Yes, sir, in fact, I have it on my videotape.

It is clear, Mr. Mauricio, that from the start of your interview at the PNP xxx up to the scene of
the crime, all the stages were videotaped by you?

Court:

Yes, sir.[39]

Journalist Berteni Causing of "People's Journal Tonite" likewise covered the proceedings for three
successive days.[40] His testimony is as follows:
"Atty. Principe: You mentioned that you had your own inquiries?
A

We asked first permission from the mayor to interrupt their own investigation so that we can
have a direct interview with the suspect.

Were there people?

The people present before the crowd that included the mayor, the deputy chief of police, several
of the policemen, the group of Inday Badiday and several other persons. I asked the suspect
after the mayor presented the suspect to us and after the suspect admitted that he was the
one who killed AAA. I reiterated the question to the suspect. Are you aware that this offense
which is murder with . . . rape with murder is a capital offense? And you could be sentenced to
death of this? And he said, Yes. So do you really admit that you were the one who did it and
he repeated it, I mean, say the affirmative answer.

As I observed him that time there was no sign on his body that he was really down physically
and I think he was in good condition.

He even admitted it, your Honor.

He was happy?

He admitted it. He was not happy after doing it.

Was he crying?

As I observed, your Honor, the tears were only apparent but there was no tear that fell on his
face.

Court:
A

So he was not happy about the incident?

Was he feeling remorseful?

As I observed it, it was only slightly, your Honor.

x x x"[41]

Another journalist, Rey Domingo, of "Bandera" interviewed appellant on February 26, 1994. [42] He
also testified that:
"Atty. Principe: Now, Mr. Witness, did the accused Pablito Andan give you the permission that you
asked from him?
A

Yes, sir.

And when he allowed you to interview him, who were present?

The first person that I saw there was Mayor xxx, policemen from xxx, the chief investigator,
SPO4 xxx, and since xxx, the chief of police was suspended, it was the deputy who was there,
sir.

Were they the only persons who were present when you interviewed the accused?

And that was in the presence of the crowd that you mentioned a while ago?

There were many people there, sir. The place was crowded with people. There were people
from the PNP and people from xxx, sir.

were witnessed by his family and other relatives. There was no coercive atmosphere in the interview
of appellant by the news reporters.

How about the other representatives from the media?

Roy Reyes, Orlan Mauricio arrived but he arrived late and there were people from the radio and
from TV Channel 9.

How about Channel 7?

They came late. I was the one who got the scoop first, sir.

You stated that the accused allowed you to interview him, was his wife also present?

We rule that appellant's verbal confessions to the newsmen are not covered by Section 12 (1)
and (3) of Article III of the Constitution. The Bill of Rights does not concern itself with the relation
between a private individual and another individual.[46] It governs the relationship between the
individual and the State. The prohibitions therein are primarily addressed to the State and its agents.
They confirm that certain rights of the individual exist without need of any governmental grant, rights
that may not be taken away by government, rights that government has the duty to protect.
[47]
Governmental power is not unlimited and the Bill of Rights lays down these limitations to protect
the individual against aggression and unwarranted interference by any department of government
and its agencies.[48]

Yes, sir, and even the son was there but I am not very sure if she was really the wife but they
were hugging each other and she was crying and from the questions that I asked from the
people there they told me that she is the wife, sir.

How about the other members of the family of the accused, were they around?

I do not know the others, sir, but there were many people there, sir.

Now, according to you, you made a news item about the interview. May we know what question
did you ask and the answer.

My first question was, is he Pablito Andan and his answer was "Yes."

What was the next question?

I asked him how he did the crime and he said that, he saw the victim aboard a tricycle. He
called her up. She entered the house and he boxed her on the stomach.

What was the next question that you asked him?

He also said that he raped her and he said that the reason why he killed the victim was because
he was afraid that the incident might be discovered, sir.

Now, after the interview, are we correct to say that you made a news item on that?

Yes, sir, based on what he told me. That's what I did.

Were there other questions propounded by you?

Yes, sir.

"Ano iyon?"

He said that he threw the cadaver to the other side of the fence, sir.

Did he mention how he threw the cadaver of AAA to the other side of the fence?

I cannot remember the others, sir.

But can you produce the news item based on that interview?

I have a xerox copy here, sir.

In his second assigned error, appellant questions the sufficiency of the medical evidence
against him. Dr. xxx, a Medical Specialist with the Provincial Health Office, conducted the first
autopsy and found no spermatozoa and no recent physical injuries in the hymen. [49] Allegedly, the
minimal blood found in her vagina could have been caused by her menstruation.[50]
We are unpersuaded. A second autopsy was conducted on March 1, 1994 by Dr. xxx, a
medico-legal officer of the National Bureau of Investigation. His findings affirmed the absence of
spermatozoa but revealed that the victim's hymen had lacerations, thus:
"Hymen -- contracted, tall, thin with fresh lacerations with clotted blood at 6 and 3 o'clock positions
corresponding to the walls of the clock."[51]
Dr. xxx testified that the lacerations were fresh and that they may have been caused by an object
forcibly inserted into the vagina when the victim was still alive, indicating the possibility of
penetration.[52] His testimony is as follows:
"Witness: When I exposed the hymen, I found lacerations in this 3 o'clock and 6 o'clock position
corresponding to the walls of the clock. x x x.
Court:

Witness: I put it in writing that this is fresh because within the edges of the lacerations, I found blood
clot, that is why I put it into writing as fresh.
Atty. Valmonte: Now, Doctor, you told the Court that what you did on the cadaver was merely a reautopsy, that means, doctor the body was autopsied first before you did you re-autopsy?
A

Yes, sir.

Could it not be, doctor, that these injuries you found in the vagina could have been sustained on
account of the dilation of the previous autopsy?

Well, we presumed that if the first doctor conducted the autopsy on the victim which was
already dead, no amount of injury or no amount of lacerated wounds could produce blood
because there is no more circulation, the circulation had already stopped. So, I presumed that
when the doctor examined the victim with the use of forceps or retractor, vaginal retractor, then
I assumed that the victim was already dead. So it is impossible that the lacerated wounds on
the hymen were caused by those instruments because the victim was already dead and
usually in a dead person we do not produce any bleeding.

What you would like to tell the Court is this: that the lacerations with clotted blood at 6 and 3
o'clock positions corresponding to the walls of the clock could have been inflicted or could
have been sustained while the victim was alive?

Yes, sir.

This clotted blood, according to you, found at the edges of the lacerated wounds, now will you
kindly go over the sketch you have just drawn and indicate the edges of the lacerated wounds
where you found the clotted blood?

This is the lacerated wound at 3 o'clock and this is the lacerated wound at 6 o'clock. I found the
blood clot at this stage. The clotted blood are found on the edges of the lacerated wounds, sir.

x x x"[43]
Clearly, appellant's confessions to the news reporters were given free from any undue
influence from the police authorities. The news reporters acted as news reporters when they
interviewed appellant.[44] They were not acting under the direction and control of the police. They
were there to check appellant's confession to the mayor. They did not force appellant to grant them
an interview and reenact the commission of the crime.[45] In fact, they asked his permission before
interviewing him. They interviewed him on separate days not once did appellant protest his
innocence. Instead, he repeatedly confessed his guilt to them. He even supplied all the details in the
commission of the crime, and consented to its reenactment. All his confessions to the news reporters

Include the descriptive word, fresh.

What could have caused those lacerations?

Well, it could have been caused by an object that is forcibly inserted into that small opening of
the hymen causing lacerations on the edges of the hymen, sir.

If the victim had sexual intercourse, could she sustain those lacerations?

It is possible, sir.[53]
We have also ruled in the past that the absence of spermatozoa in the vagina does not negate
the commission rape[54] nor does the lack of complete penetration or rupture of the hymen. [55] What is
essential is that there be penetration of the female organ no matter how slight. [56] Dr. xxx testified that
the fact of penetration is proved by the lacerations found in the victim's vagina. The lacerations were
fresh and could not have been caused by any injury in the first autopsy.
Dr. xxx's finding and the allegation that the victim was raped by appellant are supported by
other evidence, real and testimonial, obtained from an investigation of the witnesses and the crime
scene, viz:
(1) The victim, AAA, was last seen walking along the subdivision road near appellant's house; [57]
(2) At that time, appellant's wife and her step brother and grandmother were not in their house; [58]
(3) A bloodstained concrete block was found over the fence of appellant's house, a meter away
from the wall. Bloodstains were also found on the grass nearby and at the pigpen at the back
of appellant's house;[59]
(4) The victim sustained bruises and scars indicating that her body had been dragged over a flat
rough surface.[60] This supports the thesis that she was thrown over the fence and dragged to
where her body was found;
(5) Appellant's bloodstained clothes and towel were found in the laundry hamper in his house;
(6) The reddish brown stains in the towel and T-shirt of appellant were found positive for the
presence of blood type "B," the probable blood type of the victim. [61] AAA's exact blood type
was not determined but her parents had type "A" and type "AB." [62] The victim's pants had
bloodstains which were found to be type "O," appellant's blood type;[63]
(7) Appellant had scratch marks and bruises in his body which he failed to explain; [64]
(8) For no reason, appellant and his wife left their residence after the incident and were later found
at his parents' house in xxx;[65]
In fine, appellant's extrajudicial confessions together with the other circumstantial evidence
justify the conviction of appellant.
Appellant's defense of alibi cannot overcome the prosecution evidence. His alibi cannot even
stand the test of physical improbability at the time of the commission of the crime. Xxx is only a few
kilometers away from xxx and can be traversed in less than half an hour.[66]
IN VIEW WHEREOF, the decision of the Regional Trial Court, Branch 15, Malolos, Bulacan in
Criminal Case No. 1109-M-94 is affirmed and accused-appellant Pablito Andan y Hernandez is
found guilty of the special complex crime of rape with homicide under Section 11 of Republic Act No.
7659 amending Article 335 of the Revised Penal Code and is sentenced to the penalty of death, with
two (2) members of the Court, however, voting to impose reclusion perpetua. Accused-appellant is
also ordered to indemnify the heirs of the victim, AAA, the sum of P50,000.00 as civil indemnity for
her death and P71,000.00 as actual damages.
In accordance with Section 25 of Republic Act No. 7659 amending Article 83 of the Revised
Penal Code, upon finality of this decision, let the records of this case be forthwith forwarded to the
Office of the President for possible exercise of the pardoning power.
SO ORDERED.

[G.R. No. 130612. May 11, 1999]

PEOPLE

OF THE PHILIPPINES, plaintiff-appellee, vs.

OTOT, accused-appellant.

BERNARDINO

DOMANTAY, @

JUNIOR

DECISION
MENDOZA, J.:
This case is here on appeal from the decision [1] of the Regional Trial Court of Dagupan City
(Branch 57), finding accused-appellant guilty of rape with homicide and sentencing him to death, and
to indemnify the heirs of the victim in the amount of P480,000.00, and to pay the costs.
The facts hark back to the afternoon of October 17, 1996, at around 4 oclock, when the body
of six-year old Jennifer Domantay was found sprawled amidst a bamboo grove in Guilig, Malasiqui,
Pangasinan. The childs body bore several stab wounds. Jennifer had been missing since lunch
time.
The medical examination conducted the following day by Dr. Ma. Fe Leticia Macaranas, the
rural health physician of Malasiqui, showed that Jennifer died of multiple organ failure and
hypovolemic shock secondary to 38 stab wounds at the back. Dr. Macaranas found no lacerations or
signs of inflammation of the outer and inner labia and the vaginal walls of the victims genitalia,
although the vaginal canal easily admitted the little finger with minimal resistance. Noting possible
commission of acts of lasciviousness, Dr. Macaranas recommended an autopsy by a medico-legal
expert of the NBI.[2]
The investigation by the Malasiqui police pointed to accused-appellant Bernardino Domantay,
a cousin of the victims grandfather, as the lone suspect in the gruesome crime. At around 6:30 in
the evening of that day, police officers Montemayor, de la Cruz, and de Guzman of the Malasiqui
Philippine National Police (PNP) picked up accused-appellant at the Malasiqui public market and
took him to the police station where accused-appellant, upon questioning by SPO1 Antonio
Espinoza, confessed to killing Jennifer Domantay. He likewise disclosed that at around 3:30 that
afternoon, he had given the fatal weapon used, a bayonet, to Elsa and Jorge Casingal, his aunt and
uncle respectively, in Poblacion Sur, Bayambang, Pangasinan. The next day, October 18, 1996,
SPO1 Espinoza and another policeman took accused-appellant to Bayambang and recovered the
bayonet from a tricycle belonging to the Casingal spouses. The police officers executed a receipt to
evidence the confiscation of the weapon.[3]
On the basis of the post-mortem findings of Dr. Macaranas, SPO4 Juan Carpizo, the
Philippine National Police chief investigator at Malasiqui, filed, on October 21, 1996, a criminal
complaint for murder against accused-appellant before the Municipal Trial Court (MTC) of
Malasiqui. On October 25, 1996, Dr. Ronald Bandonill, medico-legal expert of the NBI, performed
an autopsy on the embalmed body of Jennifer. The result of his examination of the victims genitalia
indicated that the childs hymen had been completely lacerated on the right side. Based on this
finding, SPO4 Carpizo amended the criminal complaint against accused-appellant to rape with
homicide. Subsequently, the following information was filed:[4]
That on or about the 17th day of October, 1996, in the afternoon, in barangay Guilig, Municipality of
Malasiqui, province of Pangasinan, Philippines and within the jurisdiction of this Honorable Court,
the above-named accused, with lewd design and armed with a bayonnete, did then and there,
wilfully, unlawfully and feloniously have sexual intercourse with Jennifer Domantay, a minor of 6

years old against her will and consent, and on the same occasion, the said accused with intent to
kill, then and there, wilfully, unlawfully and feloniously stab with the use of a bayonnete, the said
Jennifer Domantay, inflicting upon her multiple stab wounds, which resulted to her death, to the
damage and prejudice of her heirs.
At the trial, the prosecution presented seven witnesses, namely, Edward, Jiezl, Lorenzo, all
surnamed Domantay, Joselito Mejia, Antonio Espinoza, Celso Manuel, and Dr. Ronald Bandonill, to
establish its charge that accused-appellant had raped and killed Jennifer Domantay.

his questioning, he apprised accused-appellant of his constitutional right to remain silent and to have
competent and independent counsel, in English, which was later translated into Pangasinense.
[13]
According to SPO1 Espinoza, accused-appellant agreed to answer the questions of the
investigator even in the absence of counsel and admitted killing the victim. Accused-appellant also
disclosed the location of the bayonet he used in killing the victim. [14] On cross-examination, Espinoza
admitted that at no time during the course of his questioning was accused-appellant assisted by
counsel. Neither was accused-appellants confession reduced in writing. [15] Espinozas testimony was
admitted by the trial court over the objection of the defense.

Edward Domantay testified that in the morning of October 17, 1996, accused-appellant and his
two brothers-in-law, Jaime Caballero and Daudencio Macasaeb, had a round of drinks in front of the
latters house in Guilig, Malasiqui, Pangasinan. Edward Domantay said that he was in front of
Macasaebs house, tending to some pigeons in his yard. [5] After the group had consumed several
bottles of San Miguel gin, accused-appellant gave money to Edward Domantay and asked him to
buy two bottles of gin and a bottle of Sprite. [6] Edward said he joined the group and sat between
Daudencio Macasaeb and accused-appellant.[7] Edward said that accused-appellant, who,
apparently had one too many then, rolled up his shirt and said: No diad Antipolo tan L[i]pa et walay
massacre, diad Guilig wala, walay massacren kod dia, walay onakis-akis (In Antipolo and Lipa,
there were massacres; here in Guilig, there will also be a massacre. I will massacre somebody
here, and they will cry and cry). Edward Domantay saw that tucked in the left side of accusedappellants waistline was a bayonet without a cover handle. [8] It was not the first time that Edward
had seen accused-appellant with the knife as the latter usually carried it with him.[9]

Celso Manuel, for his part, testified that he is a radio reporter of station DWPR, an AM station
based in Dagupan City. He covers the third district of Pangasinan, including Malasiqui. Sometime in
October 1996, an uncle of the victim came to Dagupan City and informed the station about Jennifer
Domantays case.[16] On October 23, 1996, Manuel went to Malasiqui to interview accused-appellant
who was then detained in the municipal jail. He described what transpired during the interview thus:
[17]

PROS. QUINIT:
Q

Did you introduce yourself as a media practitioner?

Yes, sir.

Jiezl Domantay, 10, likewise testified. She said that, at about 2 oclock in the afternoon on
October 17, 1996, she and four other children were playing in front of their house in Guilig,
Malasiqui, Pangasinan. Jiezl saw accused-appellant and Jennifer Domantay walking towards the
bamboo grove of Amparo Domantay where Jennifers body was later found. Accused-appellant was
about two meters ahead of Jennifer. The bamboo grove was about 8 to 10 meters from the house of
Jiezl Domantay.[10]

How did you introduce yourself to the accused?

What was his reaction to your request for an interview?

Lorenzo Domantay, a relative of the victim, corroborated Jiezls testimony that accusedappellant had gone to Amparo Domantays bamboo grove in the afternoon of October 17,
1996. Lorenzo said that that afternoon, on his way to his farm, he saw accused-appellant about 30
meters away, standing at the spot in the bamboo grove where Jennifers body was later
found. Accused-appellant appeared restless and worried as he kept looking around. However, as
Lorenzo was in a hurry, he did not try to find out why accused-appellant appeared to be nervous. [11]

He was willing to state what had happened, sir.

Prosecution witness Joselito Mejia, a tricycle driver, said that, in the afternoon of October 17,
1996, he was about to take his lunch at home in Alacan, a neighboring barangay about half a
kilometer from Guilig, when accused-appellant implored Mejia to take him to Malasiqui at once.
Mejia told accused-appellant that he was going to take his lunch first, but the latter pleaded with him,
saying they will not be gone for long. Mejia, therefore, agreed. Mejia noticed that accused-appellant
was nervous and afraid. Accused-appellant later changed his mind. Instead of going to the town
proper, he alighted near the Mormons church, outside Malasiqui.[12]
In addition, the prosecution presented SPO1 Antonio Espinoza and Celso Manuel who
testified that, on separate occasions, accused-appellant had confessed to the brutal killing of
Jennifer Domantay.
SPO1 Espinoza testified that he investigated accused-appellant after the latter had been
brought to the Malasiqui police station in the evening of October 17, 1996. Before he commenced

A I showed to Bernardino Domantay alias Junior Otot my I.D. card and I presented myself as a
media practitioner with my tape recorder [in] my hand, sir.

Q What are those matters which you brought out in that interview with the accused Bernardino
Domantay alias Junior Otot?
A I asked him what was his purpose for human interests sake as a reporter, why did he commit
that alleged crime. And I asked also if he committed the crime and he answered yes. Thats it.
....
PROS. QUINIT:
Q You mentioned about accused admitting to you on the commi[ssion] of the crime, how did you
ask him that?
A

I asked him very politely.

More or less what have you asked him on that particular matter?

A I asked Junior Otot, Bernardino Domantay, Kung pinagsisisihan mo ba ang iyong ginawa?
Opo sabi niya, Ibig mo bang sabihin Jun, ikaw ang pumatay kay Jennifer?, Ako nga po. The
[l]ast part of my interview, Kung nakikinig ang mga magulang ni Jennifer, ano ang gusto mong
iparating?, kung gusto nilang makamtan ang hustisya ay tatanggapin ko. That is what he said,
and I also asked Junior Otot, what was his purpose, and he said, it was about the boundary dispute,
and he used that little girl in his revenge.
On cross-examination, Manuel explained that the interview was conducted in the jail, about
two to three meters away from the police station. An uncle of the victim was with him and the
nearest policemen present were about two to three meters from him, including those who were in the
radio room.[18] There was no lawyer present. Before interviewing accused-appellant, Manuel said he
talked to the chief of police and asked permission to interview accused-appellant. [19] On questioning
by the court, Manuel said that it was the first time he had been called to testify regarding an interview
he had conducted.[20] As in the case of the testimony of SPO1 Espinoza, the defense objected to the
admission of Manuels testimony, but the lower court allowed it.
Dr. Bandonill, the NBI medico-legal who conducted an autopsy of the victim on October 25,
1996, testified that Jennifer Domantay died as a result of the numerous stab wounds she sustained
on her back,[21] the average depth of which was six inches. [22] He opined that the wounds were
probably caused by a pointed sharp-edged instrument. [23] He also noted contusions on the
forehead, neck, and breast bone of the victim. [24] As for the results of the genital examination of the
victim, Dr. Bandonill said he found that the laceration on the right side of the hymen was caused
within 24 hours of her death. He added that the genital area showed signs of inflammation.[25]
Pacifico Bulatao, the photographer who took the pictures of the scene of the crime and of the
victim after the latters body was brought to her parents house, identified and authenticated the five
pictures (Exhibits A, B, C, D, and E) offered by the prosecution.
The defense then presented accused-appellant as its lone witness. Accused-appellant denied
the allegations against him. He testified he is an uncle of Jennifer Domantay (he and her grandfather
are cousins) and that he worked as a janitor at the Malasiqui Municipal Hall. He said that at around 1
oclock in the afternoon of October 17, 1996, he was bathing his pigs outside the house of his
brother-in-law Daudencio Macasaeb in Guilig, Malasiqui, Pangasinan. He confirmed that Daudencio
was then having drinks in front of his (Macasaebs) house. Accused-appellant claimed, however, that
he did not join in the drinking and that it was Edward Domantay, whom the prosecution had
presented as witness, and a certain Jaime Caballero who joined the party. He also claimed that it
was he whom Macasaeb had requested to buy some more liquor, for which reason he gave money
to Edward Domantay so that the latter could get two bottles of gin, a bottle of Sprite, and a pack of
cigarettes.[26] He denied Edward Domantays claim that he (accused-appellant) had raised his shirt to
show a bayonet tucked in his waistline and that he had said he would massacre someone in Guilig.
[27]

Accused-appellant also confirmed that, at about 2 oclock in the afternoon, he went to Alacan
passing on the trail beside the bamboo grove of Amparo Domantay. But he said he did not know
that Jennifer Domantay was following him. He further confirmed that in Alacan, he took a tricycle to
Malasiqui. The tricycle was driven by Joselito Mejia. He said he alighted near the Mormon church,
just outside of the town proper of Malasiqui to meet his brother. As his brother did not come,
accused-appellant proceeded to town and reported for work. That night, while he was in the
Malasiqui public market, he was picked up by three policemen and brought to the Malasiqui police
station where he was interrogated by SPO1 Espinoza regarding the killing of Jennifer Domantay. He
denied having owned to the killing of Jennifer Domantay to SPO1 Espinoza. He denied he had a
grudge against the victims parents because of a boundary dispute. [28] With respect to his

extrajudicial confession to Celso Manuel, he admitted that he had been interviewed by the latter, but
he denied that he ever admitted anything to the former.[29]
As already stated, the trial court found accused-appellant guilty as charged. The dispositive
portion of its decision reads:[30]
WHEREFORE, in light of all the foregoing, the Court hereby finds the accused, Bernardino
Domantay @ Junior Otot guilty beyond reasonable doubt with the crime of Rape with Homicide
defined and penalized under Article 335 of the Revised Penal Code in relation and as amended by
Republic Act No. 7659 and accordingly, the Court hereby sentences him to suffer the penalty of
death by lethal injection, and to indemnify the heirs of the victim in the total amount of Four Hundred
Eighty Thousand Pesos (P480,000.00),[31] and to pay the costs.
SO ORDERED.
In this appeal, accused-appellant alleges that:[32]
I.
THE COURT A QUO ERRED IN APPRECIATING THE EXTRAJUDICIAL CONFESSION[S] MADE
BY THE ACCUSED-APPELLANT.
II.
THE COURT A QUO ERRED IN CONVICTING THE ACCUSED DESPITE FAILURE OF THE
PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT.
First. Accused-appellant contends that his alleged confessions to SPO1 Antonio Espinoza and
Celso Manuel are inadmissible in evidence because they had been obtained in violation of Art. III,
12(1) of the Constitution and that, with these vital pieces of evidence excluded, the remaining proof
of his alleged guilt, consisting of circumstantial evidence, is inadequate to establish his guilt beyond
reasonable doubt.[33]
Art. III, 12 of the Constitution in part provides:
(1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with
one. These rights cannot be waived except in writing and in the presence of counsel.
....
(3) Any confession or admission obtained in violation of this section or section 17 hereof shall be
inadmissible in evidence.
This provision applies to the stage of custodial investigation, that is, when the investigation is
no longer a general inquiry into an unsolved crime but starts to focus on a particular person as a
suspect.[34] R.A. No. 7438 has extended the constitutional guarantee to situations in which an
individual has not been formally arrested but has merely been invited for questioning. [35]

Decisions[36] of this Court hold that for an extrajudicial confession to be admissible, it must
satisfy the following requirements: (1) it must be voluntary; (2) it must be made with the assistance of
competent and independent counsel; (3) it must be express; and (4) it must be in writing.
In the case at bar, when accused-appellant was brought to the Malasiqui police station in the
evening of October 17, 1996,[37] he was already a suspect, in fact the only one, in the brutal slaying
of Jennifer Domantay. He was, therefore, already under custodial investigation and the rights
guaranteed in Art. III, 12(1) of the Constitution applied to him. SPO1 Espinoza narrated what
transpired during accused-appellants interrogation:[38]
[I] interrogated Bernardino Domantay, prior to the interrogation conducted to him, I informed him of
his constitutional right as follows; that he has the right to remain silent; that he has the right to a
competent lawyer of his own choice and if he can not afford [a counsel] then he will be provided with
one, and further informed [him] that all he will say will be reduced into writing and will be used the
same in the proceedings of the case, but he told me that he will cooperate even in the absence of
his counsel; that he admitted to me that he killed Jennifer Domantay, and he revealed also the
weapon used [and] where he gave [it] to.
But though he waived the assistance of counsel, the waiver was neither put in writing nor
made in the presence of counsel. For this reason, the waiver is invalid and his confession is
inadmissible. SPO1 Espinozas testimony on the alleged confession of accused-appellant should
have been excluded by the trial court. So is the bayonet inadmissible in evidence, being, as it were,
the fruit of the poisonous tree. As explained in People v. Alicando:[39]
. . . According to this rule, once the primary source (the tree) is shown to have been unlawfully
obtained, any secondary or derivative evidence (the fruit) derived from it is also
inadmissible. Stated otherwise, illegally seized evidence is obtained as a direct result of the illegal
act, whereas the "fruit of the poisonous tree is at least once removed from the illegally seized
evidence, but it is equally inadmissible. The rule is based on the principle that evidence illegally
obtained by the State should not be used to gain other evidence because the originally illegal
obtained evidence taints all evidence subsequently obtained.
We agree with the Solicitor General, however, that accused-appellants confession to the radio
reporter, Celso Manuel, is admissible. In People v. Andan,[40] the accused in a rape with homicide
case confessed to the crime during interviews with the media. In holding the confession
admissible, despite the fact that the accused gave his answers without the assistance of counsel,
this Court said:[41]
[A]ppellants [oral] confessions to the newsmen are not covered by Section 12(1) and (3) of Article III
of the Constitution. The Bill of Rights does not concern itself with the relation between a private
individual and another individual. It governs the relationship between the individual and the
State. The prohibitions therein are primarily addressed to the State and its agents.
Accused-appellant claims, however, that the atmosphere in the jail when he was interviewed
was tense and intimidating and was similar to that which prevails in a custodial investigation. [42] We
are not persuaded. Accused-appellant was interviewed while he was inside his cell. The interviewer
stayed outside the cell and the only person besides him was an uncle of the victim. Accusedappellant could have refused to be interviewed, but instead, he agreed. He answered questions
freely and spontaneously. According to Celso Manuel, he said he was willing to accept the
consequences of his act.

Celso Manuel admitted that there were indeed some police officers around because about two
to three meters from the jail were the police station and the radio room. [43] We do not think the
presence of the police officers exerted any undue pressure or influence on accused-appellant and
coerced him into giving his confession.
Accused-appellant contends that it is . . . not altogether improbable for the police investigators
to ask the police reporter (Manuel) to try to elicit some incriminating information from the
accused.[44] This is pure conjecture. Although he testified that he had interviewed inmates before,
there is no evidence to show that Celso was a police beat reporter. Even assuming that he was, it
has not been shown that, in conducting the interview in question, his purpose was to elicit
incriminating information from accused-appellant. To the contrary, the media are known to take an
opposite stance against the government by exposing official wrongdoings.
Indeed, there is no showing that the radio reporter was acting for the police or that the
interview was conducted under circumstances where it is apparent that accused-appellant
confessed to the killing out of fear. As already stated, the interview was conducted on October 23,
1996, 6 days after accused-appellant had already confessed to the killing to the police.
Accused-appellants extrajudicial confession is corroborated by evidence of corpus delicti,
namely, the fact of death of Jennifer Domantay. In addition, the circumstantial evidence furnished by
the other prosecution witnesses dovetails in material points with his confession. He was seen
walking toward the bamboo grove, followed by the victim. Later, he was seen standing near the
bamboo grove where the childs body was found. Rule 133 of the Revised Rules on Evidence
provides:
3. Extrajudicial confession, not sufficient ground for conviction. An extrajudicial confession made
by an accused, shall not be sufficient ground for conviction, unless corroborated by evidence
of corpus delicti.
4. Evidence necessary in treason cases. No person charged with treason shall be convicted
unless on the testimony of two witnesses to the same overt act, or on confession in open court.
Accused-appellant argues that it was improbable for a brutal killing to have been committed
without the children who were playing about eight to ten meters from Amparo Domantays grove,
where the crime took place, having heard any commotion. [45] The contention has no merit. Accusedappellant could have covered the young childs mouth to prevent her from making any sound. In
fact, Dr. Bandonill noted a five by two inch (5 x 2) contusion on the left side of the victims forehead,
which he said could have been caused by a hard blunt instrument or by impact as her head hit the
ground.[46] The blow could have rendered her unconscious, thus precluding her from shouting or
crying.
Accused-appellant also contends that the testimony of Jiezl Domantay contradicts that of
Lorenzo Domantay because while Jiezl said she had seen accused-appellant walking towards the
bamboo grove, followed by the victim, at around 2 oclock in the afternoon on October 17, 1996,
Lorenzo said he saw accused-appellant standing near the bamboo grove at about the same time.
These witnesses, however, did not testify concerning what they saw at exactly the same
time. What they told the court was what they had seen at around 2 oclock in the afternoon. There
could have been a difference in time, however little it was, between the time Jiezl saw accusedappellant and the victim walking and the time Lorenzo saw accused-appellant near the place where
the victims body was later found. Far from contradicting each other, these witnesses confirmed

what each had said each one saw. What is striking about their testimonies is that while Jiezl said
she saw accused-appellant going toward the bamboo grove followed by the victim at around 2
oclock in the afternoon on October 17, 1996, Lorenzo said he had seen accused-appellant near the
bamboo grove at around that time. He described accused-appellant as nervous and
worried. There is no reason to doubt the claim of these witnesses. Lorenzo is a relative of accusedappellant. There is no reason he would testify falsely against the latter. Jiezl, on the other hand, is
also surnamed Domantay and could also be related to accused-appellant and has not been shown
to have any reason to testify falsely against accused-appellant. At the time of the incident, she was
only 10 years old.

the male sex organ with the labia of the victims genitalia. [53] However, there must be proof, by direct
or indirect evidence, of such contact.

For the foregoing reasons, the Court is convinced of accused-appellants guilt with respect to
the killing of the child. It is clear that the prosecution has proven beyond reasonable doubt that
accused-appellant is guilty of homicide. Art. 249 of the Revised Penal Code provides:

....

Dr. Ronald Bandonills report on the genital examination he had performed on the deceased
reads:[54]
GENITAL EXAMINATION; showed a complete laceration of the right side of the hymen. The
surrounding genital area shows signs of inflamation.

REMARKS: 1) Findings at the genital area indicate the probability of penetration of that area by a
hard, rigid instrument.

Any person who, not falling within the provisions of Article 246 [parricide] shall kill another without
the attendance of any of the circumstances enumerated in the next preceding article [murder], shall
be deemed guilty of homicide and be punished by reclusion temporal.

Hymenal laceration is not necessary to prove rape;[55] neither does its presence prove its
commission. As held in People v. Ulili,[56] a medical certificate or the testimony of the physician is
presented not to prove that the victim was raped but to show that the latter had lost her
virginity. Consequently, standing alone, a physicians finding that the hymen of the alleged victim
was lacerated does not prove rape. It is only when this is corroborated by other evidence proving
carnal knowledge that rape may be deemed to have been established.[57]

The killing was committed with the generic aggravating circumstance of abuse of superior
strength. The record shows that the victim, Jennifer Domantay, was six years old at the time of the
killing. She was a child of small build, 46 in height.[47] It is clear then that she could not have put up
much of a defense against accused-appellants assault, the latter being a fully grown man of 29
years. Indeed, the physical evidence supports a finding of abuse of superior strength: accusedappellant had a weapon, while the victim was not shown to have had any; there were 38 stab
wounds; and all the knife wounds are located at the back of Jennifers body.
But we think the lower court erred in finding that the killing was committed with cruelty. [48] The
trial court appears to have been led to this conclusion by the number of wounds inflicted on the
victim. But the number of wounds is not a test for determining whether there was cruelty as an
aggravating circumstance.[49] The test . . . is whether the accused deliberately and sadistically
augmented the victims suffering thus . . . there must be proof that the victim was made to agonize
before the [the accused] rendered the blow which snuffed out [her] life. [50] In this case, there is no
such proof of cruelty. Dr. Bandonill testified that any of the major wounds on the victims back could
have caused her death as they penetrated her heart, lungs and liver, kidney and intestines.[51]

This conclusion is based on the medically accepted fact that a hymenal tear may be caused
by objects other than the male sex organ [58] or may arise from other causes.[59] Dr. Bandonill himself
admitted this. He testified that the right side of the victims hymen had been completely lacerated
while the surrounding genital area showed signs of inflammation. [60] He opined that the laceration
had been inflicted within 24 hours of the victims death and that the inflammation was due to a
trauma in that area.[61] When asked by the private prosecutor whether the lacerations of the hymen
could have been caused by the insertion of a male organ he said this was possible. But he also said
when questioned by the defense that the lacerations could have been caused by something blunt
other than the male organ. Thus, he testified:[62]
PROS. F. QUINIT:
Q

Now, what might have caused the complete laceration of the right side of the hymen, doctor?

Second. There is, however, no sufficient evidence to hold accused-appellant guilty of raping
Jennifer Domantay. Art. 335 of the Revised Penal Code, as amended, in part provides:

Well, sir, if you look at my report there is a remark and it says there; findings at the genital area
indicated the probability of penetration of that area by a hard rigid instrument.

ART. 335. When and how rape is committed. Rape is committed by having carnal knowledge of
a woman under any of the following circumstances.

Could it have been caused by a human organ?

1. By using force or intimidation;

If the human male organ is erect, fully erect and hard then it is possible, sir.

2. When the woman is deprived of reason or otherwise unconscious; and

....

3. When the woman is under twelve years of age or is demented.

ATTY. VALDEZ:

As the victim here was six years old, only carnal knowledge had to be proved to establish rape.
Carnal knowledge is defined as the act of a man having sexual intercourse or sexual bodily
connections with a woman.[52] For this purpose, it is enough if there was even the slightest contact of

In your remarks; finding at the genital area indicates the probability of penetration of that area by
a hard rigid instrument, this may have also been caused by a dagger used in the killing of Jennifer
Domantay is that correct?

Well, sir when I say hard rigid instrument it should not be sharp pointed and sharp rigid, it should be a
hard bl[u]nt instrument.

Do you consider a bolo a bl[u]nt instrument, or a dagger?

The dagger is a sharp rigid but it is not a bl[u]nt instrument, sir.

This Genital Examination showed a complete laceration of the right side of the hymen, this may have
been possibly caused by a dagger, is it not?

No, sir. I wont say that this would have been caused by a dagger, because a dagger would have
made at its incision . . . not a laceration, sir.

But this laceration may also have been caused by other factors other the human male organ, is that
correct?

A hard bl[u]nt instrument, sir could show.

My question is other than the human male organ?

Possible, sir.

....
COURT:
Q

You mentioned that the hymen was lacerated on the right side?

Yes, your Honor.

And if there is a complete erection by a human organ is this possible that the laceration can only be
on the right side of the hymen?

Yes, your Honor, its possible.

How about if the penetration was done by a finger, was it the same as the human organ?

Well, it depends on the size of the finger that penetrat[es] the organ, if the finger is small it could the
superficial laceration, and if the finger is large then it is possible your honor.

How about two fingers?

Possible, sir.
To be sure, this Court has sustained a number of convictions for rape with homicide based on
purely circumstantial evidence. In those instances, however, the prosecution was able to present
other tell-tale signs of rape such as the location and description of the victims clothings, especially

her undergarments, the position of the body when found and the like.[63] In People v. Macalino,[64] for
instance, the Court affirmed a conviction for the rape of a two year-old child on the basis of
circumstantial evidence:[65]
The Court notes that the testimony or medical opinion of Dr. Gajardo that the fresh laceration had
been produced by sexual intercourse is corroborated by the testimony given by complainant
Elizabeth that when she rushed upstairs upon hearing her daughter suddenly cry out, she found
appellant Macalino beside the child buttoning his own pants and that she found some sticky fluid on
the childs buttocks and some blood on her private part. (Emphasis in the original)
In contrast, in the case at bar, there is no circumstantial evidence from which to infer that
accused-appellant sexually abused the victim. The only circumstance from which such inference
might be made is that accused-appellant was seen with the victim walking toward the place where
the girls body was found. Maybe he raped the girl. Maybe he did not. Maybe he simply inserted a
blunt object into her organ, thus causing the lacerations in the hymen. Otherwise, there is no
circumstance from which it might reasonably be inferred that he abused her, e.g., that he was
zipping up his pants, that there was spermatozoa in the girls vaginal canal.
Indeed, the very autopsy report of Dr. Bandonill militates against the finding of rape. In
describing the stab wounds on the body of the victim, he testified:[66]
[A]fter examining the body I took note that there were several stab wounds . . . these were all found
at the back area sir . . . extending from the back shoulder down to the lower back area from the left
to the right.
Considering the relative physical positions of the accused and the victim in crimes of rape, the usual
location of the external bodily injuries of the victim is on the face, [67] neck,[68] and anterior portion[69] of
her body. Although it is not unnatural to find contusions on the posterior side, these are usually
caused by the downward pressure on the victims body during the sexual assault. [70] It is
unquestionably different when, as in this case, allthe stab wounds (except for a minor cut in the
lower left leg) had their entry points at the back running from the upper left shoulder to the lower right
buttocks.
It is noteworthy that the deceased was fully clothed in blue shorts and white shirt when her
body was brought to her parents house immediately after it was found. [71] Furthermore, there is a
huge bloodstain in the back portion of her shorts. [72] This must be because she was wearing this
piece of clothing when the stab wounds were inflicted or immediately thereafter, thus allowing the
blood to seep into her shorts to such an extent. As accused-appellant would naturally have to pull
down the girls lower garments in order to consummate the rape, then, he must have, regardless of
when the stab wounds were inflicted, pulled up the victims shorts and undergarments after the
alleged rape, otherwise, the victims shorts would not have been stained so extensively. Again, this
is contrary to ordinary human experience.
Even assuming that Jennifer had been raped, there is no sufficient proof that it was accusedappellant who had raped her. He did not confess to having raped the victim.
From the foregoing, we cannot find that accused-appellant also committed rape. In the special
complex crime of rape with homicide, both the rape and the homicide must be established beyond
reasonable doubt.[73]

Third. The trial court ordered accused-appellant to pay the heirs of Jennifer Domantay the
amount of P30,000.00 as actual damages. However, the list of expenses produced by the victims
father, Jaime Domantay, only totaled P28,430.00. Of this amount, only P12,000.00 was supported by
a receipt. Art. 2199 of the Civil Code provides that a party may recover actual or compensatory
damages only for such loss as he has duly proved. Therefore, the award of actual damages should
be reduced to P12,000.00.

That on April 13, 1995 in the Municipality of Imus, Province of Cavite, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused with intent to kill, with treachery, with
evident premeditation and with the use of superior strength while armed with Bolo, did then and
there, wilfully, unlawfully and feloniously attack, assault, and hack several times JONALYN NAVIDAD
y MONZON inflicting multiple fatal wounds on the head of the said victim causing her instantaneous
death to the damage and prejudice of the heirs.

In addition, the heirs of Jennifer Domantay are entitled to recover exemplary damages in view
of the presence of the aggravating circumstance of abuse of superior strength. Art. 2230 of the Civil
Code provides for the payment of exemplary damages when the crime is committed with one or
more aggravating circumstance. An amount of P25,000.00 is deemed appropriate.[74]

CONTRARY TO LAW. 2

In accordance with our rulings in People v. Robles[75] and People v. Mengote,[76] the indemnity
should be fixed at P50,000.00 and the moral damages at P50,000.00.[77]

The killing took place in Barangay Bukandala 5, Imus, Cavite. The victim, Jonalyn Navidad y
Monzon, 17, was found, with several hack wounds on the head, near a creek. She was taken to the
hospital, but she died shortly after at 11:15 a.m. The cause of death was "Cardio-Respiratory Arrest,
Sec. to Multiple Hacking wounds." 3
Five witnesses were presented by the prosecution.

WHEREFORE, the judgment of the trial court is SET ASIDE and another one is rendered
FINDING accused-appellant guilty of homicide with the aggravating circumstance of abuse of
superior strength and sentencing him to a prison term of 12 years of prision mayor, as minimum, to
20 years of reclusion temporal, as maximum, and ORDERING him to pay the heirs of Jennifer
Domantay the amounts of P50,000.00, as indemnity, P50,000.00, as moral damages, P25,000.00,
as exemplary damages, and P12,000.00, as actual damages, and the costs.
SO ORDERED.

G.R. No. 129723 May 19, 1999

THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
DANILO MORADA y TUMLOD, accused-appellant.

MENDOZA, J.:
This is an appeal from the decision, dated July 7, 1997, of the Regional Trial Court, Branch 90 of
Dasmarias, Cavite, the dispositive portion of which reads:
WHEREFORE, the Court finds the accused [Danilo Morada y Tumlod] GUILTY beyond reasonable
doubt of the crime of Murder, committed with treachery and taking advantage of superior strength
and hereby sentences him to suffer the penalty of DEATH and to pay FIFTY THOUSAND PESOS
(P50,000.00) to the legal heirs of the deceased, Jonalyn Navidad, in consonance with our current
case law and policy on death indemnity. No pronouncement with respect to the cost.
SO ORDERED. 1
This case originated from the information filed against accused-appellant which alleged:

The first witness was SPO3 Arsenio Gomez, 44 years of age and a member of the Philippine
National Police at Imus, Cavite. He testified that, on April 13, 1995, while he was on duty, he
received a telephone call that a certain Jonalyn Navidad had been hacked and was in serious
condition at Bukandala 5. He said he proceeded to the scene of the crime but, when he reached the
place, the victim had already been taken to the hospital. According to him, he and Edgardo
Manimbao, the barangay captain of Bukandala, found a pair of slippers (Exhs. B and B-2) with
thumbtacks (Exhs. B-1 and B-3) embedded in the insteps. One of the bystanders, Alejandro de la
Cruz, identified the slippers as those of accused-appellant. SPO3 Gomez and Barangay Captain
Manimbao, therefore, proceeded to the nipa hut of accused-appellant. SPO3 Gomez claimed they
found a stained T-shirt hanging from a tree more or less a meter away from the nipa hut. SPO3
Gomez said he took the T-shirt as he suspected the red stain on it to be human blood. Also a meter
away from the side of the nipa hut he recovered a bolo with a stain on it. Present were accusedappellant, his wife, and his brother. SPO3 Gomez said accused-appellant's brother told him the
slippers belonged to accused-appellant. SPO3 Gomez said that he asked accused-appellant
whether he knew anything about the crime, but the latter did not answer and just kept quiet. He then
"invited" accused-appellant to the police station for questioning. During oral interrogation, SPO3
Gomez said, accused-appellant admitted that he had hacked Jonalyn Navidad but they did not take
down accused-appellant's confession because there was no available lawyer to assist accusedappellant. According to SPO3 Gomez, the T-shirt and bolo were sent to the National Bureau of
Investigation (NBI) for testing, while the slippers were turned over to the Regional Trial Court. The
NBI subsequently reported that the shirt and bolo both tested positive for "human blood showing
reactions to Group 'O.'"(Exh. E) 4 SPO3 Gomez and the barangay captain, Edgardo Manimbao,
signed a "Magkasamang Salaysay" (Exh. C) 5 on April 13, 1995. 6
On July 3, 1996, SPO3 Gomez was recalled to the witness stand. He was shown a bolo (Exh. F) and
a T-shirt (Exh. G). He identified them as the ones he recovered near accused-appellant's house. He
claimed that he took the items in the presence of the barangay captain. 7 On cross-examination,
SPO3 Gomez admitted that he took the shirt and the bolo from accused-appellant without any
search warrant. 8
The next witness was Edgardo Manimbao, barangay captain of Bukandala, Imus. He testified that on
April 13, 1995, he received a report of a woman having been hacked. Accompanied by the barangay
secretary and some members of the barangay council, he proceeded to the scene of the crime, but
when he reached the place the victim was no longer there. What he only saw were "traces that a
woman fell" and a pair of slippers near an acacia tree. Manimbao said that he accompanied SPO3
Gomez to the house of accused-appellant, which was 120 meters away from the scene of the crime.

They found a bloodstained bolo and T-shirt a meter away from accused-appellant's house. The
witness said that accused-appellant's wife identified the T-shirt as her husband's. SPO3 Gomez and
Manimbao then took accused-appellant, his wife, and his brother to the police station. Afterwards,
Manimbao said, he went to the hospital to see the victim and saw that she had suffered several hack
wounds on the head. Manimbao said he returned to the police station where he was told by SPO3
Gomez that accused-appellant, who was in jail, wanted to talk to him. Accompanied by a certain
Cenon Santarin, Manimbao then went to see accused-appellant. Manimbao claimed accusedappellant admitted to him that the pair of slippers found at the scene of the crime was his and that he
was the one who had killed the victim. After being told thus, Manimbao said he asked the prison
guard if accused-appellant had told him why he had killed the victim and he was told it was because
Jonalyn Navidad was so angry at accused-appellant she spat on his face. 9
The third witness was Christopher Saliva, 19 years of age, a delivery boy and a resident of
Bukandala. He testified that on April 13, 1995, between 10 and 11 in the morning, while he was on
his way home after feeding the fighting cocks at his farm, he saw accused-appellant, a childhood
friend, going away from the scene of the crime carrying a bolo, and that when accused-appellant
saw him the latter acted as if he had just seen a ghost and turned pale. He described accusedappellant as wearing a polo shirt with blue and yellow stripes. He did not notice whether the latter
was wearing shoes or slippers. He also said that it was only at about 11 in the morning that he
learned about the hacking incident from his cousin Allan Saquilayan. He later told the victim's father
that he had seen accused-appellant coming from the scene of the crime, and, the next day, he went
to the police station to give a statement (Exh. D). 10 (He must have told the victim's father about
seeing accused-appellant on April 13, 1995 near the scene of the crime on April 15 because he gave
his statement to the police on April 16, 1995.) 11
On cross-examination, Saliva testified that he knew accused-appellant and the victim as both were
his childhood friends. He said that he and accused-appellant had no misunderstanding. 12
Eric Navidad, the 13-year old brother of the victim, testified that he was the one who found his sister
between 10 and 11 on April 13, 1995 near a creek. He ran and fetched his father. Eric said that he
saw a pair of yellow slippers near the body. He testified that it was the one that accused-appellant
wore while playing basketball. He recognized the slippers because they had thumbtacks in the
insteps which he noticed everytime he passed by accused-appellant's house and the latter took
them off and left them at the foot of the stairs. Eric also said that although accused-appellant was
married, he courted Jonalyn. 13
On cross-examination, Eric testified that he was asked questions by the police. Although the
unvestigation was reduced to writing, Eric said that he was not placed under oath or made to sign
any report or statement. 14
The last witness for the prosecution was Alejandro de la Cruz, a 34-year old driver and resident of
Bukandala 5. He testified that, on April 13, 1995, at about 11 in the morning, he was roused from
sleep by his wife and told that Jonalyn Navidad had been seriously wounded and taken to the
hospital. With only his briefs on and a towel wrapped around his hips, he went to the scene of the
crime where he saw a pair of yellow slippers near an acacia tree. One slipper was upright, while the
other was overturned. De la Cruz said he knew that accused-appellant owned the slippers because
of the thumbtacks on them. He claimed that during the wake of his father in January 1995, he hid the
slippers as he and his friends played a game while accused-appellant was asleep. 15 De la Cruz
gave a sworn statement (Exh. E) 16 in which he identified the slippers as those of accused-appellant.
On cross-examination, De la Cruz said he was neither a friend of accused-appellant nor a relative of
the victim. 17

The defense thereafter presented its witnesses, accused-appellant and Rosita Cabaero.
Accused-appellant claimed 18 that on April 13, 1995, between 10 and 11 in the morning, he was in
his house cooking. He and his wife had a visitor from Makati, Rosita Cabanero. Earlier that day,
between nine and 10, accused-appellant said the victim's mother, Jocelyn Navidad, came for help
because her daughter Jonalyn had been found slumped in the creek. Hence, accused-appellant and
his elder brother, Joel Avenda, 19 went to the creek. They saw Jonalyn being held by her father
Nicasio Navidad. She was placed in a jeepney and taken to the hospital. Accused-appellant said he
and his brother then went home, but, 30 minutes later, a group of policemen led by SPO3 Arsenio
Gomez, went to his house and arrested him. He complained that the policemen took his bolo and his
T-shirt without any search warrant or warrant of arrest. He claimed that he was taken to the
municipal building where he was beaten up to make him admit to the killing of Jonalyn Navidad, but
he admitted no such thing.
As to the T-shirt, accused-appellant said it had no stain when the police took it. He denied that
Christopher Saliva saw him carrying a bolo and wearing a bloodstained shirt, saying, "[t]here's no
truth to that allegation, sir, because at that time I was already at home." Accused-appellant also
denied attending the wake of the father of Alejandro de la Cruz "[b]ecause at that time . . . my wife is
pregnant and I have to stay at home."
As for the testimony of the victim's brother, Eric Navidad, that he knew that the slippers belonged to
accused-appellant because he used to see the latter playing basketball while wearing the same,
accused-appellant claimed that he does not know how to play basketball. Accused-appellant said
that he saw the slippers for the first time when they were shown to him in court. He said that he does
not place thumbtacks on his slippers because the same would cause him injuries.
Accused-appellant testified that the family of the victim owned the land which he had been cultivating
for the last 12 years.
On cross-examination, 20 accused-appellant testified he had written two letters, dated December 27,
1995 and February 1, 1996, to the court in which he questioned the legality of his arrest and invoked
his right to a speedy trial. He said that he had complained to the policemen at the municipal jail that
his arrest was illegal, but they would not listen to him; and that while he knew it was his right to have
a preliminary investigation, he had no way of asking for reinvestigation because he knew no one
whom he could approach for help.
Accused-appellant admitted being close to the victim, but he denied that he had any special feelings
for her.
Accused-appellant said that his house faces the victim's house and that the house next to his house
is his in-laws' house. Other than those three houses, accused-appellant said that there are no other
houses in the vicinity.
Accused-appellant said that the reason why he was implicated in the killing of Jonalyn was because
the latter's family wanted to eject him from the land on which his house was built so that the land
could be sold. He said that already his house as well as that of his parents had been removed from
the property.
Accused-appellant's alibi was corroborated by Rosita Cabanero. She testified that accused-appellant
was a cousin of her neighbor in Makati, Geraldine Defenso. She claimed that in the morning of April
13, 1995 she was at accused-appellant's house because the latter's cousin had asked her to get

from accused-appellant's mother a dog that will be slaughtered for the birthday of accusedappellant's cousin. At around 10 in the morning, Rosita Cabanero said a woman (apparently
Jonalyn's mother) came to accused-appellant's house asking for help. Accused-appellant woke up
his brother and then left the house and returned after 30 minutes. Half an hour later, policemen
arrived together with some barangay officers and took accused-appellant with them. 21

because Jonalyn Navidad, according to the jail guard when asked by Manimbao, was very angry at
him (Morada) up to the point that she spat on his face.

On cross-examination, Rosita testified that accused-appellant's brother Joel did not leave the house.
She said that the dog she came to get was killed and placed in a sack by Joel at around nine in the
morning. 22

Rule 133, 4 of the Revised Rules on Evidence provides:

On July 7, 1997, the Regional Trial Court rendered its decision finding accused-appellant guilty of
the murder of Jonalyn Navidad. It held that "[t]he chain of circumstances occurring before, during,
and after the hacking of Jonalyn Navidad, linked together, leads to but one indubitable conclusion:
that she was murdered by the herein accused, Danilo Morada." It imposed on him the penalty of
death after finding that the crime had been committed with treachery, evident premeditation, abuse
of superior strength, and cruelty.
Hence, this appeal. Accused-appellant contends that
THE COURT A QUO GRAVELY ERRED IN CONVICTING ACCUSED-APPELLANT OF MURDER
AND SENTENCING HIM TO SUFFER THE PENALTY OF DEATH BASED ON PURELY
CIRCUMSTANTIAL EVIDENCE. 23
In convicting accused-appellant, the trial court relied on the following circumstances as constituting
an unbroken chain leading to the conclusion that accused-appellant was the author of the crime:
1. In the scene of the crime the accused's pair of slippers with thumbtacks on them was found. This
was positively identified as belonging to the accused by Eric Navidad, a younger brother of the victim
and the first person who discovered the victim's body. Alejandro Dela Cruz, likewise, identified the
same subject slippers having seen them during a hide-and-seek game in the wake of his dead father
while Joel Avenda, accused's half brother, also identified the accused as the owner of the same pair
of slippers.
2. Accused was seen by Christopher Saliva coming from the scene of the crime carrying with him a
bolo and reacted as if he saw a ghost and turned pale when he saw Saliva. Accused was then
wearing a polo shirt with striped design of blue and yellow which matched the blood-stained shirt
recovered from a tree beside the nipa house of the accused.
3. From the premises of the accused were recovered a blood-stained yellow and gray striped T-shirt
hanging on a tree and one (1) blood-stained bolo about a meter away from the side of the nipa
house of the accused. Further, Morada's wife identified the blood-stained T-shirt as belonging to her
husband DaniloMorada.
4. The NBI Forensic Chemistry Division laboratory examinations of the blood-stained yellow and
gray striped T-shirt and bolo recovered at Danilo Morada's place both gave positive results for
human blood.
5. At the police headquarters, accused admitted before barangay captain Edgardo Manimbao that
the pair of slippers was actually his and that he was really the one who hacked Jonalyn Navidad

6. Eric Navidad revealed that Danilo Morada had intimated to him that he (Morada) had an affection
for his elder sister when she was still alive even though Morada was a married man. 24

Sec. 4. Circumstantial evidence, when sufficient. Circumstantial evidence is sufficient for

conviction if:
(a) There is more than one circumstance;
(b) The facts from which the inference are derived are proven; and
(c) The combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt.
The question in this case is whether the circumstances from which the trial court drew its conclusion
have been duly proven by the prosecution and, if so, whether, taken together, they support a
conviction beyond reasonable doubt. If some of the circumstances have not been duly established,
the further question is whether the remaining ones are nevertheless sufficient to produce such
conviction beyond reasonable doubt.
First is accused-appellant's alleged confession to Barangay Captain Edgardo Manimbao. Manimbao
testified that, after coming from the hospital to see the victim, he returned to the police station and
there was told by SPO3 Gomez that accused-appellant wanted to talk to him. Accordingly, he said,
he went to see accused-appellant who was then in jail. Accused-appellant allegedly admitted that he
had killed the victim. Apparently, the purpose is to show that accused-appellant spontaneously made
the confession, that is, not in the course of interrogation by the police. In fact, Manimbao claimed
accused-appellant sought him out for a meeting. 25
In People v. Andan, 26 this Court held that the constitutional guarantees during custodial investigation
do not apply to spontaneous statements not elicited through questioning by the authorities and given
during ordinary conversation or during media interviews, whereby the suspect orally admits the
commission of the crime. Our ruling in that case does not, however, authorize the police to obtain
confessions they cannot otherwise obtain through media reporters who are acting for the police. The
holding in Andan is qualified by the following:
Clearly, appellant's confessions to the news reporters were given free from any undue influence from
the police authorities. The news reporters acted as news reporters when they reported when they
interviewed appellant. They were not acting under the direction and control of the police. They were
to check appellant's confession to the mayor. They did not force appellant to grant them an interview
and reenact the commission of the crime. In fact, they asked his permission before interviewing him .
. . . 27
In the case at bar, it is doubtful whether, as Manimbao claimed, accused-appellant's confession was
given divorced from the police interrogation. In his testimony, SPO3 Gomez stated:

We conducted [oral] interrogation to the suspect. During our [oral] interrogation with the help of Bgy.
Captain [Edgardo Manimbao], the suspect admitted to us that he's the one who hacked Jonalyn
Navidad. Although we do not reduced [sic] it into writing because of the absen[ce] of [a] lawyer. 28
It would thus appear that Manimbao's conversation with accused-appellant was part of the then
ongoing police investigation. In fact, he said it as SPO3 Gomez who told him about the alleged
desire of accused-appellant to see him (Manimbao). Since the confession was admittedly given
without the safeguards in Art. III, 12 29 and the additional ones provided in R.A. No. 7438,
particularly the requirement that the confession be in writing and duly signed by the suspect in the
presence of counsel, we hold that accused-appellant's confession is inadmissible, and it was error
for the trial court to use it in convicting accused-appellant.
Moreover, Edgardo Manimbao's testimony as to the circumstances surrounding the confession
allegedly given to him is in itself improbable.
First of all, Manimbao did not give a plausible reason why accused-appellant would want to talk to
him. He testified that accused-appellant want[ed] to get out of jail. 30 If that were the case, it was very
unlikely that accused-appellant would admit his guilt.
Another reason which makes Edgardo Manimbao's account unlikely is his claim that after accusedappellant had confessed to the crime, Manimbao asked the prison guard if accused-appellant had
told him (the prison guard) why he killed the victim. 31 Manimbao himself could have asked accusedappellant the question if accused-appellant had really admitted to him the crime. Indeed, if one were
to believe the prosecution evidence, it would seem that accused-appellant confessed to the crime to
almost everyone: to SPO3 Gomez, to Barangay Captain Manimbao, and to the prison guard. How
then could accused-appellant hope to be freed? Manimbao's claim is not only patently improbable; it
is even hearsay as far as the alleged information given to him by the prison guard is concerned.
As for the T-shirt and the bolo which SPO3 Gomez and Barangay Captain Edgardo Manimbao said
they found near accused-appellant's nipa hut with bloodstains on them, the evidence is doubtful.
Accused-appellant admits that the shirt and the bolo are his, but he denies that when they were
taken from him on April 13, 1995 they were bloodstained. Indeed, in his testimony in court,
Christopher Saliva did not say he saw bloodstains on the shirt which accused-appellant was wearing
and the bolo he was carrying. It is improbable that these incriminating pieces of evidence would be
left in the premises of accused-appellant's house within public view: the T-shirt, bloodstained,
hanging from a tree, and the bolo, also bloodstained, in the yard. The articles in question could only
have been left outside the house because, as accused-appellant contends, they had no bloodstains.
Moreover, even if the shirt and the bolo were bloodstained when found by SPO3 Gomez and
Barangay Captain Manimbao, it has not been shown that the blood matched the blood type of the
victim. As held in People v. Padilla,32 unless shown that bloodstains on alleged instruments of crime
match the blood type of the victim the same cannot sustain conviction of the accused.
The question now is whether, without accused-appellant's alleged confession and the bloodstains on
the T-shirt and bolo which were admittedly taken from accused-appellant, there is enough
circumstantial evidence to convict him of the killing of Jonalyn Navidad. The remaining evidence
consists of circumstances which, according to the trial court, were duly proven, to wit: (1) that
accused-appellant was seen near the scene of the crime between 10 and 11 in the morning of the
day in question wearing the T-shirt and carrying the bolo which the prosecution presented in
evidence and (2) that a pair of slippers was found near the place where the body of the victim was
retrieved and the slippers belonged to accused-appellant.

The claim that accused-appellant was near the scene of the crime between 10 and 11 in the morning
comes from the testimony of Christopher Saliva. His testimony would be uncorroborated if he did not
describe what he allegedly saw accused-appellant wearing and the bolo the latter was supposedly
carrying at the time. This part of Saliva's testimony is critical to his claim that he saw accusedappellant because it coincides with the description of the
T-shirt 33 and the bolo taken by SPO3 Gomez and Barangay Captain Manimbao from accusedappellant. It appears, however, that Saliva was simply made to say that accused-appellant was
wearing the T-shirt and carrying the bolo in question after these articles had been taken from
accused-appellant not so much to corroborate Gomez and Manimbao's claim (because after all
accused-appellant admits that the articles belonged to him) but rather to give verisimilitude to
Saliva's own claim that he had seen accused-appellant near the scene of the crime. Note that Saliva
gave his statement to the police only on April 16, 1995, after Gomez and Manimbao had executed a
joint statement that they had taken a T-shirt and a bolo, both allegedly bloodstained, from accusedappellant. Saliva said that around 11 in the morning of April 13, 1995 (which means shortly after he
had allegedly seen accused-appellant near the scene of the crime), he was told by his cousin, Allan
Saquilayan, that Jonalyn Navidad had been killed. Yet, judging by the delay in giving his sworn
statement to the police, it appears that it did not immediately occur to him that accused-appellant
might have something to do with the killing. This is strange since according to this witness, accusedappellant had a bolo which was bloodstained and turned pale as though surprised while committing
something wrong. There is, therefore, doubt whether Christopher Saliva really saw accusedappellant near the scene of the crime at about the time the crime was committed.
It would thus appear that Saliva did not mention in hos sworn statement (Exh. D) that when-accused
appellant saw him on April 13, 1995 the latter turned pale and appeared surprised because it is not
true Saliva saw accused-appellant, in the same way that Saliva did not mention in his testimony in
court that he saw accused-appellant with bloodstained shirt and bloodstained bolo because he really
did not see accused-appellant on that day, much less the bloodstain on the shirt and the bolo.
The last piece of evidence mentioned by the trial court constituting a link in a chain of circumstances
are the slippers are the slippers (Exhs. B and B-2) which SPO3 Gomez, Barangay Captain
Manimbao, and an onlooker, Alejandro de la Cruz, said they found near the place where Jonalyn
Navidad was found. These slippers were identified to be those of accused-appellant by Eric
Navidad, younger brother of the victim, and Alejandro de la Cruz. Both witnesses said they
recognized the slippers because of thumbtacks (Exhs. B-1 and B-3) placed in the middle of the
insteps. Actually, the slippers are rubber sandals with Japanese-style straps designed for beachwalk.
It is inconceivable why the owner should place thumbtacks in the insteps of his sandals. The
thumbtacks could not have been used to hold the straps or fasten them to the sandals because the
fact is that the straps had not given way. On the other hand, as accused-appellant pointed out, he
would not place the thumbtacks there because they could injure him.
Eric said he saw accused-appellant wearing these sandals while playing basketball and on the
occasions he passed by accused-appellant's house. Accuse-appellant would take off his sandals
and leave them at the foot of the stairs, and this was how Eric noticed the thumbtacks. Eric Navidad
was interviewed at the police station in connection with the killing of his sister. Yet, it does not appear
he ever told the police that he recognized the sandals because of the thumbtacks embedded in their
insteps. He made this claim only on February 14, 1996 when he testified in court.
On the other hand, Alejandro de la Cruz had an ingenious explanation why he recognized the
slippers to be those of accused-appellant because of the thumbtacks embedded in their insteps. He
said accused-appellant went to his (Alejandro de la Cruz's) father's wake in January 1995 and, while
there, accused-appellant dozed off. In the course of a game, Alejandro de la Cruz said he and his
companions hid accused-appellant's sandals. In doing so, he noticed the thumbtacks in question.

The story sounds artificial. Alejandro de la Cruz was 33 years old at the time. To drive away boredom
would he have played "hide and seek" with other people attending the wake? And did he think it
proper to do this (play "hide and seek") even when it was the wake for his own father? The attempt
at ingeniousness can only create doubt in his story of how he allegedly came to see thumbtacks
embedded in the insteps of accused-appellant's sandals that would later give him away as the
author of the crime. Alejandro de la Cruz must be very observant to notice something in otherwise
nondescript sandals.

the morning, Julito and Tortillano were surprised by five armed men. Julito recognized one of them
by face and later identified him as herein accused-appellant Domenciano Vasquez. Julito also heard
the latter, who was some six meters away, shout: They are here. Do not run. Immediately after
this, Vasquez began shooting Tortillano. The victim was hit and tried to run away but once Vasquez
opened fire, his four companions began shooting both Julito and Tortillano. Julito was shot in the
thigh but managed to run for safety by taking the path off the road. He left Tortillano there not
knowing if his brother-in-law escaped as well.[1]

There may indeed be suspicion that accused-appellant is the author of the crime. But our legal
culture demands proof beyond reasonable doubt to be established according to law before any
person may be deprived of his life, liberty, or even property. We cannot render judgment on the basis
of mere guesses, surmises, or suspicion. It is not sufficient for a conviction that the evidence
establishes a strong suspicion or a probability of guilt. Before an accused can be convicted, the
hypothesis of his guilt must flow naturally from the facts proved and must be consistent with all of
them.

Upon reaching his parents home in Danasan, Danao City, Julito was asked by his father,
Cristuto Capuno, why he was bleeding. After Julito told them of the ambush, he was brought by his
brothers and sisters to the Danao General Hospital for treatment.

WHEREFORE, the decision appealed from is REVERSED and accused-appellant Danilo Morada y
Tumlod is ACQUITTED on the ground of reasonable doubt.
The Director of Prisons is hereby directed to forthwith cause the release of accused-appellant unless
the latter is being lawfully held for another cause and to inform the Court accordingly within ten (10)
days from notice.1wphi1.nt
SO ORDERED.

THE

PHILIPPINES, plaintiff-appellee, vs.

DOMENCIANO

On April 29, 1991, Domenciano Vasquez was charged in an Information for the crime of
Robbery with Homicide:
That on or about February 12, 1991, at 10:00 oclock in the morning more or less, at Magtgobtob,
Danao City, Philippines, and within the jurisdiction of this Honorable Court, the above-named
accused Domenciano Vasquez with intent to gain and with intent to kill, did then and there willfully,
unlawfully and feloniously shoot Tortillano Suplaag with the use of a firearm thereby inflicting upon
him - gunshot wounds - which caused his instantaneous death, and thereafter took from him money
amounting to P28,000.00 and his wrist watch worth P3,500, or in the aggregate sum of P31,500.00.
CONTRARY TO LAW.[3]

[G.R. No. 105008. October 23, 1997]

PEOPLE OF
appellant.

Cristuto proceeded to Magtagobtob to look for Tortillano. On his way there, he met some
members of the CAFGU who were informed about the same incident and together they went to look
for Tortillano. The latters bullet-ridden body was found near the creek, naked. His wallet and wrist
watch were also missing. On their way back with Tortillanos body, they met the victims wife.[2]

VASQUEZ, accused-

DECISION
ROMERO, J.:
This is an appeal from a conviction for robbery with homicide laid down by the Regional Trial
Court in Danao City (Branch 25) in the case of People v. Domenciano Vasquez in 1992. The facts
surrounding the death of Tortillano Suplaag are as follows:
The victim, Tortillano Suplaag, is a thirty-year old farmer who also dabbled in trading
livestock. As in other market days, Tortillano was in the Lawaan Public Market in Danao City with his
brother-in-law Julito Capuno on February 9, 1991. Julito related that Tortillano conversed with herein
accused-appellant Domenciano Vasquez about a carabao offered for sale. Tortillano and accusedappellant agreed to meet on February 12, 1991 at Magtagobtob, Danao City where Vasquez
neighbor and the owner of the carabao, Andres Castro, would bring the animal.
Araceli Capuno Suplaag recounted that on February 12, 1991, her husband had P28,000.00
which was intended for the purchase of livestock and he wore his Seiko Divers watch when he left
with Julito for Magtagobtob early that morning. Before reaching Magtagobtob, at about ten oclock in

Domenciano Vasquez claims he has an alibi. Natividad Vasquez, his wife testified that on
February 12, 1991, his uncle, Uldarico Vasquez, arrived at about eight oclock in the morning
informing them that his wife was taken ill. Uldarico recounted in open court that after eating
breakfast, Natividad prepared their provisions to be taken to the farm. At about nine oclock in the
morning, Uldarico and Domenciano set out for the latters farm in Anislagan, taking with them a bolo
and a pick mattock. They stayed there until half past four in the afternoon or five oclock, with
Uldarico helping Domenciano in weeding the farm. Uldarico also claimed that the accused-appellant
never left the place and had lunch with him there at the farm. The following morning, accusedappellant accompanied his uncle to the latters farm in Mantija and stayed there for three days. In
August 1991, accused-appellant learned about the warrant for his arrest from his uncle who also
went with him when he surrendered first to the Barangay Captain of Mantija and then to the ViceMayor at Danao City.[4]
After trial on the merits, Domenciano Vasquez was convicted of the crime as charged in the
lower courts decision dated January 8, 1992. The dispositive portion of said decision reads:
WHEREFORE, the Court finds the accused Domenciano Vasquez GUILTY beyond reasonable
doubt of the crime of Robbery with Homicide and said accused is hereby sentenced to suffer the
penalty of imprisonment ofReclusion Perpetua with all the accessory penalties provided by law and
is further ordered to indemnify the heirs of Tortillano Suplaag the sum of P50,000.00 and the further
sum of P31,500.00 representing the amount taken from the deceased Tortillano Suplaag consisting
of cash of P28,000.00 and the value of the wrist watch of P3,500.00 and to pay the costs.

SO ORDERED.[5]

Five (5).

Hence, this appeal. Vasquez argues that he should be acquitted because the trial court
committed several errors in its decision. Accused-appellant contends, first, that since conspiracy
was not alleged in the information, conspiracy cannot be appreciated and considered against
him. Since the gunman who shot the victim was not identified there was a logical possibility that
anyone in the group of five could have shot Tortillano, and because the acts of the alleged
conspirators cannot be taken against accused-appellant, the latter should not have been convicted.

Five including Domenciano?

Yes, sir.

Do you know the other four?

After an exhaustive and careful study of the evidence on record, we found nothing that serves
to discredit the testimony of the prosecutions eye-witness, Julito Capuno. His account was simple,
clear and credible, specially because of his actual presence at the locus criminis. He himself was
shot and was close enough to see their assailants. His testimony, not being flawed by vicious
inconsistencies or improper motive is credible.

No, sir.

You said that Domenciano Vasquez fired first, who was hit by Domenciano Vasquez?

Tortillano Suplaag.

We concede that because of the prosecutors failure to allege conspiracy in the Information
and to charge the four John Does who assisted accused-appellant, Vasquez cannot be held
accountable for the acts of these unidentified men. However, there is sufficient proof that Vasquez
shot Tortillano and led the other four in continuous gunfire against the two unarmed men. Julito
testified:

How many times did Domenciano Vasquez fire?

Many times.[6]

Q Now, what happened after you heard Domenciano Vasquez (say `They are here. Do not
run)?
A

They fired shots immediately.

COURT TO WITNESS
Q

Who fired the shots?

Domenciano Vasquez.

To whom?

To Tortillano Suplaag.

COURT:

Even if no autopsy were conducted and no such report given in evidence to prove which bullet
fatally wounded Tortillano, Vasquez armed assault as the ostensible leader points to him as a
principal perpetrator of the crime. It is therefore untrue that the gunman was not identified by
Julito. It matters little that the eye-witness initially recognized accused-appellant only by face. Julito
acted like any ordinary person in making inquiries to find the name that matched this
face. Significantly, in open court, he unequivocally identified accused-appellant as their assailant. [7]
There is proof beyond reasonable doubt that accused-appellant fatally wounded the
victim. Consequently, his liability for the victims wrongful death is patent even without imputing the
acts of the four John Does to him.
The second error attributed to the trial court pertains to accused-appellants alibi. The Court
agrees with the court a quo in this regard and concludes that his alibi is a fabrication primarily
because of an eye-witness positive identification of accused-appellant. In countless cases, we have
declared that positive identification destroys the defense of alibi and renders it impotent. [8]Further, for
alibi to merit serious consideration, it must be so convincing as to preclude any doubt that the
accused could not have been physically present at the place of the crime or its vicinity at the time of
its commission.[9] Here, accused-appellant claims to have been in his farm at Anislagan when the
assault transpired but failed to show that this farm is so far, he could not possibly have been in
Magtagubtob on the morning of February 12, 1991.

Proceed.
CONTD OF DIRECT BY FISCAL JOSE MANULAT:
Q

Was Domenciano Vasquez alone when he shot Tortillano?

They were many.

How many?

Accused-appellant also avers that the prosecution failed to establish the fact that the victim
had P28,000.00 and a wrist watch in his possession. We agree that there is insufficient evidence of
these claims. Araceli Suplaags testimony that he brought money with him because every time he
left (their) house (she would) count the money [10] and that she knew the amount to beP28,000.00 is
not enough to prove that Tortillano really had that much on him. The same is true for Julitos claim
that the victim had P28,000.00.[11]
More succintly, there is not enough evidence on record to sustain a conviction for the complex
crime of robbery with homicide. It is necessary that the robbery itself be proved beyond reasonable
doubt. Where there are no eyewitnesses to the alleged robbery, the latter cannot be presumed. [12] In

the case before us, Julito Capuno ran away when they were being fired upon and learned of his
brother-in-laws death later on. When Cristuto Capuno found the victim sprawled by the creek, the
latter no longer had his clothes, money or watch. The prosecution did not present proof that
accused-appellant divested Tortillano of his money and personal effects. Mere supposition to this
effect does not meet the standard of proof beyond reasonable doubt required by law. Consequently,
accused-appellant cannot be convicted of the crime of robbery with homicide where robbery was not
proved.
This finding that the accused may not be convicted of the charge of robbery with homicide
does not, however, save the day for him. Despite lack of adequate proof that he committed robbery
and notwithstanding the fact that the information against him was one for robbery with homicide, he
can still be convicted of simple homicide under Article 249 of the Revised Penal Code which he
perpetrated when he, along with four others, fired at the victims and killed Tortillano in the
process. People v. Nimo[13] clarified it thus:
It is well-settled that in order to sustain a conviction for robbery with homicide, it is necessary that
the robbery itself be proven as conclusively as any other essential element of the crime. In order for
the crime of robbery with homicide to exist, it is necessary that it be clearly established that a
robbery has actually taken place, and that, as a consequence or on the occasion of such robbery, a
homicide be committed. Where the evidence does not conclusively prove the robbery, the killing of
the victim would, therefore, be classified either as a simple homicide or murder, depending upon the
absence or presence of any qualifying circumstance, and not the complex offense of robbery with
homicide. [Emphasis supplied].
The treachery which attended the commission of the homicide as shown by the suddenness of
the armed attack on the unsuspecting pair and their resulting inability to put up a defense,
[14]
however, must be appreciated as a mere generic aggravating circumstance, there being no
allegation to that effect in the information. Abuse of superior strength, on the other hand, cannot be
considered as an independent aggravating circumstance when treachery is present since the former
is deemed to have been absorbed in the latter.[15] Since the homicide was attended by one generic
aggravating circumstance, the imposable penalty should be the maximum period of reclusion
temporal.[16]

G.R. No. 109775 November 14, 1996

PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
JOSE ENCARNACION MALIMIT alias "MANOLO", accused-appellant.
FRANCISCO, J.:
Appellant Jose Encarnacion Malimit, charged with 1 and convicted of the special complex crime of
robbery with homicide, 2 was meted by the trial court 3 the penalty of reclusion perpetua. He was also
ordered to indemnify the heirs of Onofre Malaki the sum of Fifty Thousand Pesos (P50,000.00)
without subsidiary imprisonment in case of insolvency, and to pay the cost. 4
In this appeal, appellant asks for his acquittal alleging that the trial court committed the following
errors, to wit:
I
THE TRIAL COURT ERRED IN GIVING CREDENCE TO THE UNRELIABLE TESTIMONIES OF
THE PROSECUTION WITNESSES ON THEIR ALLEGED IDENTIFICATION OF THE ACCUSEDAPPELLANT AS THE PERPETRATOR OF THE CRIME DESPITE THE FACT (SIC) THEY
REVEALED THEIR ALLEGED "KNOWLEDGE" OF TH6E CRIME MORE THAN FIVE MONTHS
AFTER THE INCIDENT.
II
THE TRIAL COURT ERRED IN ADMITTING AS EVIDENCE THE WALLET AND ITS CONTENTS
ALTHOUGH THE CIRCUMSTANCES WHICH LEAD TO ITS PRODUCTION WAS OBTAINED IN
VIOLATION OF THE CONSTITUTIONAL RIGHTS OF THE ACCUSED.
III

There being no proof that the accused has been convicted of any of the crimes enumerated in
Section 2 of the Indeterminate Sentence Law so as to disqualify him from the beneficial effects of the
said law, Vasquez should suffer the indeterminate sentence of ten (10) years and one (1) day
of prision mayor maximum as minimum period to twenty (20) years of reclusion temporalmaximum
as maximum period. Conformably with recent jurisprudence, he shall indemnify the heirs of the
deceased Tortillano in the amount of fifty thousand (P50,000.00) pesos.
WHEREFORE, accused-appellant Domenciano Vasquez is hereby declared GUILTY of the
crime of homicide under Article 249 of the Revised Penal Code. He shall suffer the indeterminate
sentence of ten (10) years and one (1) day of prision mayor maximum as the minimum period to
twenty (20) years of reclusion temporal maximum as the maximum period, and shall INDEMNIFY the
heirs of Tortillano Suplaag in the amount of fifty thousand (P50,000.00) pesos. Costs against
accused-appellant.
SO ORDERED.

THE TRIAL COURT ERRED IN CONVICTING THE ACCUSED-APPELLANT DESPITE FAILURE

OF THE PROSECUTION TO PROVE HIS GUILT BEYOND REASONABLE DOUBT. 5
The following is the recital of facts as summarized by the appellee in its Brief, and duly supported by
the evidence on record:
On April 15, 1991, around 8:00 o'clock in the evening, [Onofre] Malaki was attending to his store.
Malaki's houseboy Edilberto Batin, on the other hand, was busy cooking chicken for supper at the
kitchen located at the back of the store (TSN, June 19, 199 (sic), p. 14).
Soon thereafter, Florencio Rondon, a farmer, arrived at the store of Malaki. Rondon was to purchase
chemical for his rice farm (TSN, May 22, 1992, p. 19). Rondon came from his house, approximately
one hundred and fifty (150) meters distant from Malaki's store (Ibid., p. 24).
Meanwhile, Batin had just finished cooking and from the kitchen, he proceeded directly to the store
to ask his employer (Malaki) if supper is to be prepared. As Batin stepped inside the store, he was
taken aback when he saw appellant coming out of the store with a bolo (TSN, June 9, 1992, p. 14),

while his boss, bathed in his own blood, was sprawled on the floor "struggling for his life" (hovering
between life and death) (Ibid.).
Rondon, who was outside and barely five (5) meters away from the store, also saw appellant Jose
Malimit (or "Manolo") rushing out through the front door of Malaki's store with a blood-stained bolo
(TSN, May 22, 1992, p. 29). Aided by the illumination coming from a pressure lamp ("petromax")
inside the store, Rondon clearly recognized Malimit (Ibid., p. 22).
Batin immediately went out of the store to seek help. Outside the store, he met Rondon (TSN, June
9, 1992, p. 15). After a brief conversation, both Batin and Rondon rushed to the nearby house of
Malaki's brother-in-law Eutiquio Beloy and informed Beloy of the tragic incident which befell Malaki.
Batin, along with Beloy, went back to the store. Inside, they saw the lifeless body of Malaki in a pool
of blood lying prostrate at the floor. Beloy readily noticed that the store's drawer was opened and
ransacked and the wallet of Malaki was missing from his pocket (Ibid., pp. 16-17). 6
In his first assignment of error, appellant questions the credibility of prosecution witnesses Florencio
Rondon and Edilberto Batin by pointing out their alleged delay in revealing what they knew about the
incident. He posits that while the crime took place on April 15, 1991, it was only on September 17,
1991 when these witnesses tagged him as the culprit.
We find these contentions bereft of merit. Appellant haphazardly concluded that Rondon and Batin
implicated the appellant to this gruesome crime only on September 17, 1991. The aforementioned
date however, was merely the date 7 when Rondon and Batin executed their respective
affidavits, 8 narrating that they saw the appellant on the night of April 15, 1991 carrying a bolo
stained with blood and rushing out of Malaki's store. As to appellant's claim of delay, suffice it to state
that extant from the records are ample testimonial evidence negating appellant's protestation, to wit:
(1) after having discovered the commission of the crime, Rondon and Batin immediately looked for
Eutiquio Beloy, Malaki's brother-in-law, and informed him that appellant was the only person they
saw running away from the crime scene; 9 (2) Beloy and Batin reported the crime with the CAFGU
detachment in their barangay where Batin declared that it was appellant who robbed Malaki on that
fateful night; 10 and (3) Batin again made a similar statement later at the Silago Police Station. 11
Next, appellant derided the non-presentation by the prosecution of the police blotter which could
prove if appellant was indeed implicated right away by Batin to the crime. 12 We do not believe,
however, that it was necessary for the prosecution to present as evidence a copy of the
aforementioned police blotter. Neither was its non-presentation in court fatal to the prosecution's
case. Entries in the police blotter are merely corroborative evidence of the uncontroverted testimony
of Batin that he identified the appellant as the perpetrator of the crime before the Silago police. As
such, its presentation as evidence is not indispensable. 13 Besides, if appellant believed that he was
not identified therein, then he should have secured a copy thereof from the Silago Police Station and
utilized the same as controverting evidence to impeach Batin's credibility as witness. 14 Having failed
to do so, appellant cannot now pass the blame on the prosecution for something which appellant
himself should have done.
Even assuming arguendo that Rondon and Batin identified the appellant only on September 15,
1991, or after the lapse of five months from commission of the crime, this fact alone does not render
their testimony less credible. The non-disclosure by the witness to the police officers of appellant's
identity immediately after the occurrence of the crime is not entirely against human experience. 15 In
fact the natural reticence of most people to get involved in criminal prosecutions against immediate
neighbors, as in this case, 16 is of judicial notice. 17 At any rate, the consistent teaching of our
jurisprudence is that the findings of the trial court with regard to the credibility of witnesses are given
weight and the highest degree of respect by the appellate court. 18 This is the established rule of

evidence, as the matter of assigning values to the testimony of witnesses is a function best
performed by the trial court which can weigh said testimony in the light of the witness" demeanor,
conduct and attitude at the
trial. 19 And although the rule admits of certain exceptions, namely: (1) when patent inconsistencies
in the statements of witnesses are ignored by the trial court, or (2) when the conclusions arrived at
are clearly unsupported by the evidence, 20 we found none in this case.
In his second assignment of error, appellant asseverates that the admission as evidence of Malaki's
wallet 21together with its contents, viz., (1) Malaki's residence certificate; 22 (2) his identification
card; 23 and (3) bunch of keys, 24 violates his right against self-incrimination. 25 Likewise, appellant
sought for their exclusion because during the custodial investigation, wherein he pointed to the
investigating policemen the place where he hid Malaki's wallet, he was not informed of his
constitutional rights.
We are not persuaded. The right against self-incrimination guaranteed under our fundamental law
finds no application in this case. This right, as put by Mr. Justice Holmes in Holt vs. United
States, 26 ". . . is a prohibition of the use of physical or moral compulsion, to extort communications
from him . . ." It is simply a prohibition against legal process to extract from the [accused]'s own lips,
against his will, admission of his guilt. 27 It does not apply to the instant case where the evidence
sought to be excluded is not an incriminating statement but an objectevidence. Wigmore, discussing
the question now before us in his treatise on evidence, thus, said:
If, in other words (the rule) created inviolability not only for his [physical control of his] own vocal
utterances, but also for his physical control in whatever form exercise, then, it would be possible for
a guilty person to shut himself up in his house, with all the tools and indicia of his crime, and defy the
authority of the law to employ in evidence anything that might be obtained by forcibly overthrowing
his possession and compelling the surrender of the evidential articles a clear reduction ad
absurdum. In other words, it is not merely compulsion that is the kernel of the privilege, . . .
but testimonial compulsion 28
Neither are we prepared to order the exclusion of the questioned pieces of evidence pursuant to the
provision of the Constitution under Article III, Section 12, viz:
(1) Any person under investigation for the commission of an offense shall have the right to be
informed of his right to remain silent and to have competent and independent counsel preferably of
his own choice. If the person cannot afford the services of counsel, he must be provided with one.
These rights cannot be waived except in writing and in the presence of counsel.
xxx xxx xxx
(3) Any confession or admission obtained in violation of this or Sec. 17 hereof, shall be inadmissible
in evidence against him. (Emphasis ours.)
xxx xxx xxx
These are the so-called "Miranda rights" so oftenly disregarded by our men in uniform. However,
infractions thereof render inadmissible only the extrajudicial confession or admission made during
custodial investigation. The admissibility of other evidence, provided they are relevant to the issue
and is not otherwise excluded by law or rules, 29 is not affected even if obtained or taken in the
course of custodial investigation. Concededly, appellant was not informed of his right to remain silent
and to have his own counsel by the investigating policemen during the custodial investigation.

Neither did he execute a written waiver of these rights in accordance with the constitutional
prescriptions. Nevertheless, these constitutional short-cuts do not affect the admissibility of Malaki's
wallet, identification card, residence certificate and keys for the purpose of establishing other facts
relevant to the crime. Thus, the wallet is admissible to establish the fact that it was the very wallet
taken from Malaki on the night of the robbery. The identification card, residence certificate and keys
found inside the wallet, on the other hand, are admissible to prove that the wallet really belongs to
Malaki. Furthermore, even assuming arguendo that these pieces of evidence are inadmissible, the
same will not detract from appellant's culpability considering the existence of other evidence and
circumstances establishing appellant's identity and guilt as perpetrator of the crime charged.
We, now come to appellant's third assignment of error where he demurs on the prosecution's
evidence, contending that they are insufficient to sustain his conviction.
Our close scrutiny of the record reveals otherwise. Time and again, we ruled that there can be a
verdict of conviction based on circumstantial evidence when the circumstances proved form an
unbroken chain which leads to a fair and reasonable conclusion pinpointing the accused, to the
exclusion of all the others, as the perpetrator of the crime. 30 In order that circumstantial evidence
may be sufficient to convict, the same must comply with these essential requisites, viz., (a) there is
more than one circumstance; (b) the facts from which the inferences are derived are proven; and (c)
the combination of all the circumstances is such as to produce a conviction beyond reasonable
doubt. 31 In this case, there were at least five (5) circumstances constituting an unbroken chain of
events which by their "concordant combination and cumulative effect", satisfy the requirements for
the conviction of the appellant, 32 specifically: (1) appellant was seen by Rondon and Batin, whose
credibilities were untarnished, holding a bolo in his right hand and rushing out of Malaki's store
seconds prior to their discovery of the crime; 33(2) Malaki sustained multiple stab wounds 34 and he
died of "cardiac arrest, secondary to severe external hemorrhage due to multiple stab wounds", 35 (3)
witness Elmer Ladica saw the appellant on August 6, 1991, accompanied by some policemen,
retrieve Malaki's wallet underneath a stone at the seashore in Barangay Hingatungan; 36 (4)
appellant himself admitted in his testimony that on August 6, 1991, he accompanied several
policemen to the seashore where he hid Malaki's wallet; 37 and (5) appellant's flight and his
subsequent disappearance from Hingatungan immediately after the incident. 38
On the other hand, appellant's version of the story does not inspire belief. He maintains that on that
fateful night he was in his house together with his wife. He claims that they had just arrived from a
gambling spree allegedly in the house of a certain Maui Petalcorin. Surprisingly, however, the
defense did not bother to call appellant's wife to the witness stand to corroborate appellant's alibi.
Neither did it present as witness Maui Petalcorin, or any other person who may have seen the
appellant in the said place, if only to provide a semblance of truth to this assertion. As the defense of
alibi is weak in view of the positive identification of the appellant by the prosecution witnesses, 39 it
becomes weaker because of the unexplained failure of the defense to present any
corroboration. 40Furthermore, proof that appellant was in his house when the crime was committed is
not enough. Appellant must likewise demonstrate that he could not have been physically present at
the place of the crime or in its vicinity, at the time of its commission. 41 In this case, appellant himself
admitted that his house was just about eighty (80) meters away from the house of
Malaki. 42 It was, therefore, not impossible for him to have been physically present at the place of the
commission of the crime, as in fact, no evidence to negate this possibility was ever adduced by him
at the trial.
Appellant's insistence that he merely found Malaki's wallet by chance while gathering shells along
the seashore, and that he feared being implicated in the crime for which reason he hid the wallet
underneath a stone, hardly inspires belief. We are at a loss, just as the trial court was, as to why
appellant should fear being implicated in the crime if indeed he merely found Malaki's wallet by

chance. No inference can be drawn from appellant's purported apprehension other than the logical
conclusion that appellant had knowledge of the crime. Besides, proof that appellant is in possession
of a stolen property gives rise to a valid presumption that he stole the same. 43
In fine, as the killing of Malaki took place on the occasion of robbery, appellant was correctly
convicted by the trial court of the special complex crime of robbery with homicide, defined and
penalized under Article 294, paragraph 1 of the Revised Penal Code.
WHEREFORE, the appealed judgment of conviction is hereby AFFIRMED in toto.
SO ORDERED.
[G.R. No. 108492. July 15, 1997]
PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
BANIEL, accused-appellant.

vs.

NOEL

BANIEL

and

JOY

DECISION
FRANCISCO, J.:
This is a case of murder on Christmas day.
Pleading guilty to a criminal information which states
That on or about December 25, 1990, in the municipality of Aparri, Province of Cagayan and within
the jurisdiction of this Honorable Court, the said accused Noel Baniel and Jolly Baniel, conspiring
together and helping each other, armed with pointed instruments, with intent to kill, with treachery
and evident premeditation, did then there willfully, unlawfully and feloniously attack, assault and stab
one Nicasio Caluag, inflicting upon him stab wounds on his body which caused his death. [1]
accused-appellants Noel and Jolly Baniel were tried and convicted of murder by the Regional Trial
Court (RTC) of Aparri, Cagayan, for the death of Nicasio Caluag (victim) imposing on them the
penalty of reclusion perpetua. The dispositive portion of the decision reads:
WHEREFORE, based on the evidence adduced, this Court finds both of the accused NOEL
BANIEL and JOLLYMER BANIEL alias Jolly Baniel, both of Linao, Aparri, Cagayan, GUILTY beyond
reasonable doubt of the offense of Murder as charge in the Information and the Court hereby:
(a)
Sentences each of said accused JOLLYMER BANIEL alias Jolly Baniel and NOEL
BANIEL, to RECLUSION PERPETUA, with all the accessory penalties provided for by law;
(b)
Ordering said both accused, jointly and solidarily, to pay the heirs of the victim, Nicasio
Caluag, the following amounts:
1. Actual or compensatory damages in the total amount of P12,500.00;
2. Moral damages in the amount of P100,000.00; and

3. Death compensation in the amount of P50,000.00

To avail of the benefit of self-defense, appellant Noel, as the party invoking it has burden of
proving:[5]

Without subsidiary imprisonment in case of insolvency;

(c)

unlawful aggression,

reasonable necessity of the means employed to prevent or repel it, and

lack of sufficient provocation on the part of the person defending himself

Ordering both accused to pay the cost.[2]

Appellants, thereafter, initiated this direct appeal, for which this Court appointed a counsel de
oficio to represent them upon their manifestation that their lawyer in the court a quo moved abroad.[3]
The trial courts findings of fact ably supported by evidence on record are as follows:[4]
Nicasio Caluag was at the Furugganan Landing in Centro, Aparri, Cagayan at about 1:00 oclock in
the afternoon of December 25, 1990. Furugganan Landing is the port or landing place of small
ferryboat plying between Centro, Aparri and its barrios Linao, Sanja and Kaalintaan. Nicasio Caluag
was from Linao, Aparri, Cagayan (TSNs, December 10, 1991, pp. 3-4; December 16, 1991, pp. 3-4).
When he was there in the port of landing, his daughter Jenny Caluag, his nephew Bongbong
Santaren and many other persons were also there as it was Christmas (TSN, December 10, 1991, p.
4; TSN, December 16, 1991, p. 3).
Nicasio Caluag was buying some mangoes near the fishport building at the landing place and when
he stooped to pay for the mangoes, the accused Jollymer Baniel alias Jolly Baniel, surreptitiously
approached Caluag from behind and stabbed Caluag with a knife (Exhibit C) at his back. Caluag
fell on the ground, face upward, and Jollymer Baniel again stabbed Caluag on his body. Caluag
suffered eight stab sounds, one incise wound and one hack wound (TSN, December 10, 1991, pp.
4-5; TSN, December 16, 1991, pp. 4-5, 8, 12).
In that moment, the accused Noel Baniel also joined his brother Jollymer in stabbing Caluag. Noel
used a knife (Exhibit D) in stabbing Caluag several times on different parts of his body (TSN,
December 10, 1991, pp. 5-6; TSN, December 16, 1991, pp. 5,8-9, 12-13).
Thereafter, the brothers Baniel fled but a policeman, Pat. Lao, arrived in the scene. Noel Baniel
was arrested or (sic) he surrendered himself to the policeman who brought him to the police precinct
near the market and Jollymer Baniel went along with them (TSN, December 10, 1991, p. 11; TSN,
December 16, 1991, pp. 9-10; TSN, January 8, 1992, pp. 5-7, 10-11).
Thereafter, the brothers Baniel were locked up in jail and were later on transferred to the police
headquarters in Aparri, Cagayan (TSN, January 8, 1992, pp. 10-11).
The dead body of Nicasio Caluag was brought to a funeral parlor and Dr. Romulo de Rivera
conducted a post mortem examination on the body. Dr. de Rivera found the following wounds which
he indicated in his post mortem examination report (Exhibit "E") (TSN, January 9, 1992, p.
3). (enumeration of wounds omitted)
Appellants differ in their respective defenses. Appellant Noel invokes self-defense in killing
the victim who allegedly attacked the former with a knife, whereas appellant Jolly denies any
participation in the crime imputed to them and invokes alibi.

by clear and convincing evidence to justify his felonious acts. [6] Otherwise, conviction will follow from
his admission as author of the crime. [7] Upon examination of the record, appellant Noel failed to
discharge this burden since the principal element of unlawful aggression was not proven. Unlawful
aggression presupposes an actual, sudden and unexpected attack on the file or limb of a person or
an imminent danger thereof, and not merely a threatening or intimidating attitude. There must be
real danger to the life or personal safety of the person claiming self defense. [8] In the case at bench,
the victim, a detention prisoner,[9] was stooping to pay the mangoes he was buying and had his back
turned against appellants. At that instance, appellant Jolly, armed with a bolo, surreptitiously
attacked the victim from behind inflicting a fatal wound on the latters back. [10] The victim, surprised
by the attack and wounded was rendered helpless and defenseless when almost successively
appellant Noel stabbed him with a 6-inch knife.[11] When the victim fell down, appellant Noel
continuously stabbed the former causing more wounds.[12] Of the ten (10) wounds found on the
victims body, seven (7) were fatal.[13]
The manner appellants executed the attack tends directly and specially to insure its execution
without risk to themselves against any possible defense that the victim might offer.[14] This constitutes
treachery and when the act is attended by treachery on the part of the offender, it could not be said
that there was unlawful aggression on the part of the offended party, because the facts constituting
the treachery would be inconsistent not only with offended partys alleged unlawful aggression but
also irreconcilable with the offenders claim that he was merely acting in self-defense. For one,
treachery presupposes a deliberate design to cause a wrongful act, whereas, self-defense injects
the thought that the defendants action was the product of necessity. For another, there is a high
degree of depravity in treachery which is not present in self-defense. With the sore absence of the
primordial element of unlawful aggression, the other requisites of self-defense would have no leg to
stand on.[15] Accordingly, that same treachery which negated unlawful aggression was properly
appreciated by the trial court as the circumstance that qualified the killing to murder.[16]
Appellant Noel posits that there was unlawful aggression on the part of the victim when the
latter raised his right hand armed with a knife and attempted to stab the former. He further asserts
that he (Noel who was allegedly left-handed) grabbed the victims raised right hand with his both
hands. It was at this instance that appellant Noel took out a knife with his left hand and stabbed the
victim. However, the Court agrees with the trial courts finding that the proffered excuses of
appellant Noel are incredible and unbelievable.[17] Thus,
Noel Baniel in describing the body of Caluag compared him to Mr. William Lumabas, the Process
Server of this court, by saying that Caluags hands are all of the same size as those of Mr. Lumabas;
Caluag was taller than Mr. Lumabas who is 55, and Caluag was also stouter than Mr. Lumabas
who is 120 lbs. With the comparison in the said description, it can be seen that Noel Baniel who is
very much slimmer or thinner than Mr. Lumabas, is therefore very much more shorter, smaller and
weaker than Caluag or, conversely, the victim was very much taller, bigger or heavier and stronger
than the defendant Noel Baniel. (see TSN, Feb. 11, 1992, pages 20 and 21 and TSN, Feb. 12,
1992, page 18). Baniel could not, under such condition, easily hold the hand of Caluag which was

thrusting a knife and raised it above his (Caluags) head. Could Noel Baniel do it while the left hand
of Caluag was free? Could Noel maintain his right hand above the latters head and with Noels left
hand drew his own knife and stabbed the frontal part of Caluags body? Consider these questions in
relation to the description of the bodybuilt of the duo and the fact that Noel Baniel claims to be lefthanded. Could Noels right hand overpower Caluags right hand? (see TSN, page 12 and page
19);[18]

x x x wound No. 6, which is a deep stab wound, could have only been inflicted by the knife (Exhibit
C) used by Jollymer Baniel in stabbing Caluag. Said wound No. 6 is considered fatal. It is also
shown that wound No. 6 could not have been inflicted by the knife (Exhibit D) of Noel Baniel but
could have been inflicted by the knife (Exhibit C) used by Jollymer Baniel. It is further shown that
the knife (Exhibit C) of Jollymer Baniel and the knife (Exhibit D) of Noel Baniel could have inflicted
the other fatal stab wounds."[33]

Besides, the nature, number and location of the wounds sustained by the victim belie the
assertion of self-defense. The necropsy report of the examining physician stated that the victim
suffered stabbed, incised and hacked wounds on the vital parts of his body from the neck to the
chest, stomach, arms and back near the hipline. [19] The gravity of these wounds is indicative of a
determined effort to kill and not just to defend.[20]

As to appellants contention that the trial court erred in not conducting an ocular inspection of
the crime scene thereby disregarding the(ir) right to a speedy disposition of the case [34] this
isnon-sequitur. On the contrary, by dispensing with the ocular inspection, the trial court avoided a
delay of the case. At any rate, ocular inspection rests within the sound discretion of the
court. Inspection may be granted only where it is reasonably certain that it will be of substantial aid
to the court in reaching a correct verdict. The trial court in this case, correctly refused to make the
inspection where testimonial evidence adequately pictured the condition of the place. Thus, a view
of the place would serve no useful purpose.[35]

With respect to appellant Jollys defense of alibi, again such defense is weakened in this case
by the trial courts finding that it was a mere concoction and fabrication. [21] Such alibi falls when
juxtaposed with the testimony of credible witnesses who actually saw and positively identified
appellant Jolly as the one who initiated the attack on the victim. [22] Alibi is inherently weak and
unreliable, it is easy of fabrication [23], without much opportunity at checking or rebutting it [24] and will
not prosper if it is established mainly by the accused or his relatives and not by credible persons.[25]
Appellant Jolly failed to strictly satisfy the two conditions of alibi respecting time and place.
Well entrenched is the doctrine that for alibi to prosper, the defendant must prove not only (1) that
he was somewhere else when the crime was committed but (2) it must likewise be demonstrated
that he was so far away that he could not have been physically present at the place of the crime or
its immediate vicinity at the time of its commission. [27] Both elements are wanting in this
case. Appellant Jolly was at the place of the crime (Furugannan Landing) at the time of the
incident. It was not shown that he was somewhere else as to be physically absent therefrom.
[26]

In addition, appellant Jollys denial aside from being inherently weak, [28] like his alibi,[29] easily
crumbles in the light of positive declarations of truthful witnesses who testified on affirmative matters
that the former was at the scene of the incident and was one of the victims assailants and
perpetrators of the crime.[30] Applicable herein is the Courts ruling in People v. Paragua,[31] that:
Denial, if unsubstantiated by clear and convincing evidence, is a negative and self-serving evidence
which deserves no weight in law and cannot be given greater evidentiary value over the testimony of
credible witness who testify on affirmative matters.
Be that as it may, evidence on record attests that appellant Noel used a 6-inch knife Jolly used
a bolo about a foot long.[32] From this proven fact, the lower court correctly deduced that:
The knife (Exhibit D) of Noel Baniel could not have caused Wound No. 6 which is 4 cm x 1.1 cm
x .16 cm in depth, because the blade of said knife is narrow, only 1.5 cm wide while the would (sic) is
4.0 cm wide and 16 cm deep. It could not have also caused Wound No. 8, a hack wound, because
said wound is wide, long and deep, but Exhibit C, the alleged bolo of Caluag (or Jollymer Baniel)
could have caused said wounds (see TSN, January 9, 1992, pages 18 and 19, testimony of Dr. de
Rivera). So why does Noel Baniel claim only one (1) knife (Exhibit D) was used in wounding
Caluag?
xxx

xxx

xxx

Appellants next dispute the finding of conspiracy. A conspiracy exists when two (2) or more
persons come to an agreement concerning the commission of a felony and decide to commit it. [36]It
need not be established by direct proof.[37] It would suffice if the acts of the conspirators are
characterized by unity of purpose, intent and design to achieve a common unlawful end. It may
even inferred from the conduct of the accused before, during and after the commission of the crime.
[38]
In the case at bench, appellant Jolly suddenly attacked the victim from behind and subsequent
thereto, appellant Noel joined the fray stabbing the victim from the front. Appellants actions of
helping or assisting each other in simultaneously stabbing or inflicting wounds on the victim are
clear and indubitable proof(s)[39] of a concerted effort to bring about the death of the victim. [40] Thus,
appellants as conspirators are equally liable for the crime [41] as it is unnecessary to determine who
inflicted the fatal wounds[42] because in conspiracy, the act of one is the act of all.[43]
In the final analysis, appellants agrument depend on the trial courts finding of facts and its
assessment of the credibility of witnesses. [44] Jurisprudence is settled that the trial courts findings of
fact when ably supported by substantial evidence on record are accorded with great weight and
respect by this Court. Thus, upon review, the Court finds that no material facts were overlooked or
ignored by the courts below which if considered might vary the outcome of this case nor there exist
cogent reasons that would warrant reversal of the findings below.[45] Further, the trial court did not err
in giving credence to the testimonies of the prosecution witnesses. [46] They cannot be discredited as
unreliable and untrustworthy because of their relation to the victim. No law disqualifies relatives of
the victim of a crime from testifying about the facts and circumstances of the crime. Relationship per
se of a witness to the victim, whether by consanguinity or affinity, is no indicator of an impaired
credibility of a witness nor would it affect his positive and clear testimony and render it unworthy. On
the contrary, relationship with a victim deter a witness from indiscriminately implicating anybody to
the crime. His natural and usual interest would be to identify the malefactor and secure his
conviction to obtain true justice for the death of a relative. This is specially so when the witnesses
were present at the scene of the crime, as in the case at bench.[47] Needless to say, the question of
credibility of witnesses is best left to the trial court since it is in the best position to make an honest
evaluation of the witnesses deportation during trial. [48] Such evaluation binds this Court as the
proffered inconsistencies (like the number of times the victim was stabbed and the place where he
fell after he was stabbed) in the prosecution witnesses testimonies do not substantially affect the
result hereof.
Lastly, contrary to the trial courts ruling, appellants should have been entitled to the mitigating
circumstance of surrender, though they never told the responding police officer that they were
surrendering. Appellant Noels declaration to the police of Nakadisgracia nak[49] and his action

together with appellant Jolly of spontaneously and unconditionally placing themselves at the disposal
of the authorities are, under the factual milieu of this case, indicia of their respect for the law by
saving the time and effort of the authorities attendant to the search. [50] A categorical declaration of a
voluntary surrender is not necessary as the action of appellants in moving towards the responding
police officer, surrendering a weapon, [51] seeking police protection and telling the police of what they
did are mute words sufficient to satisfy the rationale of a voluntary surrender as a mitigating
circumstance.

After hearing the evidence, the Honorable Charles S. Lobingier, judge, found the defendant guilty of
the offense ofabusos deshonestos, as defined and punished under article 439 of the Penal Code,
and sentenced him to be imprisoned for a period of 4 years 6 months and 11 days of prision
correccional, and to pay the costs.

Prior to R.A. 7659,[52] murder was penalized with reclusion temporal maximum to death.[53] In
accordance with the graduation of penalties under Article 64(2) of the Revised Penal Code, when
there is a mitigating circumstance (surrender) and no aggravating circumstance, as in this case, the
imposable penalty is the minimum period which is reclusion temporal maximum. Applying the
Indeterminate Sentence Law (ISL), appellants could be held to bear the indeterminate penalty of
anywhere from ten (10) years and one (1) day of prision mayor maximum to 17 years and four (4)
months of reclusion temporal medium, as the minimum penalty, to anywhere from seventeen (17)
years, four (4) months and one (1) day to twenty (20) years of reclusion temporal maximum, as the
maximum penalty.[54]

I. The lower court erred in admitting the testimony of the physicians about having taken a certain
substance from the body of the accused while he was confined in jail and regarding the chemical
analysis made of the substance to demonstrate the physical condition of the accused with reference
to a venereal disease.

From that sentence the defendant appealed and made the following assignments of error in this
court:

II. The lower court erred in holding that the complainant was suffering from a venereal disease
produced by contact with a sick man.
III. The court erred in holding that the accused was suffering from a venereal disease.

We note, however, the amount of moral damages awarded by the trial court is too excessive in
the light of the factual circumstances of the case and should be reduced.
WHEREFORE, the decision of the Regional Trial Court is AFFIRMED subject to the
MODIFICATIONS that appellants Noel and Jolly Baniel are sentenced to an indeterminate penalty of
ten (10) years and one (1) day of prision mayor as minimum to seventeen (17) years, four (4)
months and one (1) day of reclusion temporal as maximum. The monetary awards (compensatory
damages and death indemnity totaling P72,500.00) are AFFIRMED except that the moral damages
is reduced to one thousand pesos (P1,000.00).
SO ORDERED.

G.R. No. 7081

September 7, 1912

THE UNITED STATES, plaintiff-appellee,

vs.
TAN TENG, defendant-appellant.
Chas A. McDonough, for appellant.
Office of the Solicitor General Harvey, for appellee.

IV. The court erred in finding the accused guilty from the evidence.
From an examination of the record it appears that the offended party, Oliva Pacomio, a girl seven
years of age, was, on the 15th day of September , 1910, staying in the house of her sister, located
on Ilang-Ilang Street, in the city of Manila; that on said day a number of Chinamen were gambling
had been in the habit of visiting the house of the sister of the offended party; that Oliva Pacomio, on
the day in question, after having taken a bath, returned to her room; that the defendant followed her
into her room and asked her for some face powder, which she gave him; that after using some of the
face powder upon his private parts he threw the said Oliva upon the floor, placing his private parts
upon hers, and remained in that position for some little time. Several days later, perhaps a week or
two, the sister of Oliva Pacomio discovered that the latter was suffering from a venereal disease
known as gonorrhea. It was at the time of this discovery that Oliva related to her sister what
happened upon the morning of the 15th of September. The sister at once put on foot an investigation
to find the Chinaman. A number of Chinamen were collected together. Oliva was called upon to
identify the one who had abused her. The defendant was not present at first. later he arrived and
Oliva identified him at once as the one who had attempted to violate her.
Upon this information the defendant was arrested and taken to the police station and stripped of his
clothing and examined. The policeman who examined the defendant swore from the venereal
disease known as gonorrhea. The policeman took a portion of the substance emitting from the body
of the defendant and turned it over to the Bureau of Science for the purpose of having a scientific
analysis made of the same. The result of the examination showed that the defendant was suffering
from gonorrhea.

JOHNSON, J.:
This defendant was charged with the crime of rape. The complaint alleged:
That on or about September 15, 1910, and before the filing of this complaint, in the city of Manila,
Philippine Islands, the said Tan Teng did willfully, unlawfully and criminally, and employing force, lie
and have carnal intercourse with a certain Oliva Pacomio, a girl 7 years of age.

During the trial the defendant objected strongly to the admissibility of the testimony of Oliva, on the
ground that because of her tender years her testimony should not be given credit. The lower court,
after carefully examining her with reference to her ability to understand the nature of an oath, held
that she had sufficient intelligence and discernment to justify the court in accepting her testimony
with full faith and credit. With the conclusion of the lower court, after reading her declaration, we fully
concur. The defense in the lower court attempted to show that the venereal disease of gonorrhea
might be communicated in ways other than by contact such as is described in the present case, and
called medical witnesses for the purpose of supporting the contention. Judge Lobingier, in discussing
that question said:

We shall not pursue the refinement of speculation as to whether or not this disease might, in
exceptional cases, arise from other carnal contact. The medical experts, as well as the books, agree
that in ordinary cases it arises from that cause, and if this was an exceptional one, we think it was
incumbent upon the defense to bring it within the exception.
The offended party testified that the defendant had rested his private parts upon hers for some
moments. The defendant was found to be suffering from gonorrhea. The medical experts who
testified agreed that this disease could have been communicated from him to her by the contact
described. Believing as we do the story told by Oliva, we are forced to the conclusion that the
disease with which Oliva was suffering was the result of the illegal and brutal conduct of the
defendant. Proof, however, that Oliva constructed said obnoxious disease from the defendant is not
necessary to show that he is guilty of the crime. It is only corroborative of the truth of Oliva's
declaration.
The defendant attempted to prove in the lower court that the prosecution was brought for the
purpose of compelling him to pay to the sister of Oliva a certain sum of money.
The defendant testifed and brought other Chinamen to support his declaration, that the sister of
Oliva threatened to have him prosecuted if he did not pay her the sum of P60. It seems impossible to
believe that the sister, after having become convinced that Oliva had been outraged in the manner
described above, would consider for a moment a settlement for the paltry sum of P60. Honest
women do not consent to the violation of their bodies nor those of their near relatives, for the filthy
consideration of mere money.
In the court below the defendant contended that the result of the scientific examination made by the
Bureau of Science of the substance taken from his body, at or about the time he was arrested, was
not admissible in evidence as proof of the fact that he was suffering from gonorrhea. That to admit
such evidence was to compel the defendant to testify against himself. Judge Lobingier, in discussing
that question in his sentence, said:
The accused was not compelled to make any admissions or answer any questions, and the mere
fact that an object found on his person was examined: seems no more to infringe the rule invoked,
than would the introduction in evidence of stolen property taken from the person of a thief.

exclusion of his body as evidence, when it may be material. The objection, in principle, would forbid
a jury (court) to look at a person and compare his features with a photograph in proof. Moreover we
are not considering how far a court would go in compelling a man to exhibit himself, for when he is
exhibited, whether voluntarily or by order, even if the order goes too far, the evidence if material, is
competent.
The question which we are discussing was also discussed by the supreme court of the State of New
Jersey, in the case of State vs. Miller (71 N.J. law Reports, 527). In that case the court said,
speaking through its chancellor:
It was not erroneous to permit the physician of the jail in which the accused was confined, to testify
to wounds observed by him on the back of the hands of the accused, although he also testified that
he had the accused removed to a room in another part of the jail and divested of his clothing. The
observation made by the witness of the wounds on the hands and testified to by him, was in no
sense a compelling of the accused to be a witness against himself. If the removal of the clothes had
been forcible and the wounds had been thus exposed, it seems that the evidence of their character
and appearance would not have been objectionable.
In that case also (State vs. Miller) the defendant was required to place his hand upon the wall of the
house where the crime was committed, for the purpose of ascertaining whether or not his hand
would have produced the bloody print. The court said, in discussing that question:
It was not erroneous to permit evidence of the coincidence between the hand of the accused and the
bloody prints of a hand upon the wall of the house where the crime was committed, the hand of the
accused having been placed thereon at the request of persons who were with him in the house.
It may be added that a section of the wall containing the blood prints was produced before the jury
and the testimony of such comparison was like that held to be proper in another case decided by the
supreme court of New Jersey in the case of Johnson vs. State (30 Vroom, N.J. Law Reports, 271).
The defendant caused the prints of the shoes to be made in the sand before the jury, and the
witnesses who had observed shoe prints in the sand at the place of the commission of the crime
were permitted to compare them with what the had observed at that place.
In that case also the clothing of the defendant was used as evidence against him.

The substance was taken from the body of the defendant without his objection, the examination was
made by competent medical authority and the result showed that the defendant was suffering from
said disease. As was suggested by Judge Lobingier, had the defendant been found with stolen
property upon his person, there certainly could have been no question had the stolen property been
taken for the purpose of using the same as evidence against him. So also if the clothing which he
wore, by reason of blood stains or otherwise, had furnished evidence of the commission of a crime,
there certainly could have been no objection to taking such for the purpose of using the same as
proof. No one would think of even suggesting that stolen property and the clothing in the case
indicated, taken from the defendant, could not be used against him as evidence, without violating the
rule that a person shall not be required to give testimony against himself.
The question presented by the defendant below and repeated in his first assignment of error is not a
new question, either to the courts or authors. In the case of Holt vs. U.S. (218 U.S., 245), Mr. Justice
Holmes, speaking for the court upon this question, said:
But the prohibition of compelling a man in a criminal court to be a witness against himself, is
a prohibition of the use of physical or moral compulsion, to extort communications from him, not an

To admit the doctrine contended for by the appellant might exclude the testimony of a physician or a
medical expert who had been appointed to make observations of a person who plead insanity as a
defense, where such medical testimony was against necessarily use the person of the defendant for
the purpose of making such examination. (People vs. Agustin, 199 N.Y., 446.) The doctrine
contended for by the appellants would also prevent the courts from making an examination of the
body of the defendant where serious personal injuries were alleged to have been received by him.
The right of the courts in such cases to require an exhibit of the injured parts of the body has been
established by a long line of decisions.
The prohibition contained in section 5 of the Philippine Bill that a person shall not be compelled to be
a witness against himself, is simply a prohibition against legal process to extract from the
defendant's own lips, against his will, an admission of his guilt.
Mr. Wigmore, in his valuable work on evidence, in discussing the question before us, said:

If, in other words, it (the rule) created inviolability not only for his [physical control] in whatever form
exercised, then it would be possible for a guilty person to shut himself up in his house, with all the
tools and indicia of his crime, and defy the authority of the law to employ in evidence anything that
might be obtained by forcibly overthrowing his possession and compelling the surrender of the
evidential articles a clearreductio ad absurdum. In other words, it is not merely compulsion that is
the kernel of the privilege, . . . buttestimonial compulsion. (4 Wigmore, sec. 2263.)

THE UNITED STATES, plaintiff-appellee,

vs.
ONG SIU HONG, defendant-appellant.

The main purpose of the provision of the Philippine Bill is to prohibit compulsory oral examination of
prisonersbefore trial. or upon trial, for the purpose of extorting unwilling confessions or declarations
implicating them in the commission of a crime. (People vs. Gardner, 144 N. Y., 119.)

MALCOLM, J.:

The doctrine contended for by appellant would prohibit courts from looking at the fact of a defendant
even, for the purpose of disclosing his identity. Such an application of the prohibition under
discussion certainly could not be permitted. Such an inspection of the bodily features by the court or
by witnesses, can not violate the privilege granted under the Philippine Bill, because it does not call
upon the accused as a witness it does not call upon the defendant for his testimonial
responsibility. Mr. Wigmore says that evidence obtained in this way from the accused, is not
testimony but his body his body itself.
As was said by Judge Lobingier:
The accused was not compelled to make any admission or answer any questions, and the mere fact
that an object found upon his body was examined seems no more to infringe the rule invoked than
would the introduction of stolen property taken from the person of a thief.
The doctrine contended for by the appellant would also prohibit the sanitary department of the
Government from examining the body of persons who are supposed to have some contagious
disease.
We believe that the evidence clearly shows that the defendant was suffering from the venereal
disease, as above stated, and that through his brutal conduct said disease was communicated to
Oliva Pacomio. In a case like the present it is always difficult to secure positive and direct proof.
Such crimes as the present are generally proved by circumstantial evidence. In cases of rape the
courts of law require corroborative proof, for the reason that such crimes are generally committed in
secret. In the present case, taking into account the number and credibility of the witnesses, their
interest and attitude on the witness stand, their manner of testifying and the general circumstances
surrounding the witnesses, including the fact that both parties were found to be suffering from a
common disease, we are of the opinion that the defendant did, on or about the 15th of September,
1910, have such relations as above described with the said Oliva Pacomio, which under the
provisions of article 439 of the Penal Code makes him guilty of the crime of "abusos
deshonestos," and taking into consideration the fact that the crime which the defendant committed
was done in the house where Oliva Pacomio was living, we are of the opinion that the maximum
penalty of the law should be imposed. The maximum penalty provided for by law is six years
ofprision correccional. Therefore let a judgment be entered modifying the sentence of the lower court
and sentencing the defendant to be imprisoned for a period of six years of prision correccional, and
to pay the costs. So ordered.
G.R. No. L-12778

August 3, 1917

Williams, Ferrier and SyCip for appellant.

Acting Attorney-General Paredes for appellee.

We find no reason to disturb the findings of the trial court, particularly relative to the credibility of the
witnesses for the prosecution, members of the secret service. On point only requires consideration.
Counsel for appellant raises the constitutional question that the accused was compelled to be a
witness against himself. The contention is that this was the result of forcing the accused to discharge
the morphine from his mouth. No case exactly in point can be found. But, by analogy, the decision of
the Supreme Court of the Philippine Islands in U. S. vs. Tan Tan ([1912] 23 Phil.. 145), following
leading authorities, and the persuasive decisions of other courts of last resort, are conclusive. To
force a prohibited drug from the person of an accused is along the same line as requiring him to
exhibit himself before the court; or putting in evidence papers and other articles taken from the room
of an accused in his absence; or, as in the Tan Teng case, taking a substance from the body of the
accused to be used in proving his guilt. It would be a forced construction of the paragraph of the
Philippine Bill of Rights in question to hold that any article, substance, or thing taken from a person
accused of crime could not be given in evidence. The main purpose of this constitutional provision is
to prohibit testimonial compulsion by oral examination in order to extort unwilling confessions from
prisoners implicating them in the commission of a crime. (Harris vs. Coats [1885], 75 Ga., 415.)
Following the practice of this court in cases of this character, the judgment of the lower court is
modified by imposing the minimum penalty provided by law, i. e., three months imprisonment and a
fine of P300 or, in case of insolvency, to suffer subsidiary imprisonment, with costs. (U. S. vs. Lim
Sing, [1912], 23 Phil. 424; U. S. vs. Sy Liongco, [1915], 33 Phil., 563.) So ordered.
G.R. No. 16444

September 8, 1920

EMETERIA VILLAFLOR, petitioner,

vs.
RICARDO SUMMERS, sheriff of the City of Manila, respondent.
Alfredo Calupitan, and Gibbs, McDonough & Johnson for petitioner.
Assistant City of Fiscal Felix for respondent.
MALCOLM, J.:
The petitioner prays that a writ of habeas corpus issue to restore her to her liberty.
The facts are not dispute. In a criminal case pending before the Court of First Instance of the city of
Manila, Emeteria Villaflor and Florentino Souingco are charged with the crime of adultery. On this
case coming on for trial before the Hon. Pedro Concepcion, Judge of First Instance, upon the
petitioner of the assistant fiscal for the city of Manila, the court ordered the defendant Emeteria
Villaflor, nor become the petitioner herein, to submit her body to the examination of one or two
competent doctors to determine if she was pregnant or not. The accused refused to obey the order

on the ground that such examination of her person was a violation of the constitutional provision
relating to self-incrimination. Thereupon she was found in contempt of court and was ordered to be
committed to Bilibid Prison until she should permit the medical examination required by the court.
The sole legal issue from the admitted facts is whether the compelling of a woman to permit her
body to be examined by physicians to determine if she is pregnant, violates that portion of the
Philippine Bill of Rights and that portion of our Code of Criminal Procedure which find their origin in
the Constitution of the United States and practically all state constitutions and in the common law
rules of evidence, providing that no person shall be compelled in any criminal case to be a witness
against himself. (President's Instructions to the Philippine Commission; Act of Congress of July 1,
1902, section 5, paragraph 3; Act of Congress of August 29, 1916, section 3; paragraph 3; Code of
Criminal Procedure, section 15 [4]; United States Constitution, fifth amendment.) Counsel for
petitioner argues that such bodily exhibition is an infringement of the constitutional provision; the
representative of the city fiscal contends that it is not an infringement of the constitutional provision.
The trial judge in the instant case has held with the fiscal; while it is brought to our notice that a
judge of the same court has held on an identical question as contended for by the attorney for the
accused and petitioner.
The authorities are abundant but conflicting. What may be termed the conservative courts
emphasize greatly the humanitarianism of the constitutional provisions and are pleased to extend
the privilege in order that its mantle may cover any fact by which the accused is compelled to make
evidence against himself. (Compare State vs. Jacobs [1858], 50 N. C., 259 with State vs. Ah Chuey
[1879], 14 Nev., 79. See further State vs. Ah Nordstrom [1893], 7 Wash., 506; State vs. Height
[1902]. 117 Iowa., 650; Thornton vs. State [1903], 117 Wis., 338.) A case concordant with this view
and almost directly in point is People vs. McCoy ([1873], 45 How. Pr., 216). A woman was charged
with the crime of infanticide. The corner directed two physicians to go to the jail and examine her
private parts to determine whether she had recently been delivered of a child. She objected to the
examination, but being threatened with force, yielded, and the examination was had. The evidence
of these physicians was offered at the trial and ruled out. The court said that the proceeding was in
violation of the spirit and meaning of the Constitution, which declares that "no person shall be
compelled in any criminal case to be a witness against himself." Continuing, the court said: "They
might as well have sworn the prisoner, and compelled her, by threats, to testify that she had been
pregnant, and had been delivered of a child, as to have compelled her, by threats, to allow them to
look into her person, with the aid of a speculum, to ascertain whether she had been pregnant and
been delivered of a child. . . . Has this court the right to compel the prisoner now to submit to an
examination they are of the opinion she is not a virgin, and has had a child? It is not possible that
this court has that right; and it is too clear to admit of argument that evidence thus obtained would be
inadmissible against the prisoner."
It may be revealing a judicial secret, but nevertheless we cannot refrain from saying that, greatly
impressed with the weight of these decisions, especially the one written by Mr. Justice McClain, in
State vs. Height, supra, the instant case was reported by the writer with the tentative
recommendation that the court should lay down the general rule that a defendant can be compelled
to disclose only those parts of the body which are not usually covered. Buth having disabused our
minds of a too sensitive appreciation of the rights of accused persons, and having been able, as we
think, to penetrate through the maze of law reports to the policy which lies behind the constitutional
guaranty and the common law principle, we have come finally to take our stand with what we believe
to be the reason of the case.
In contradistinction to the cases above-mentioned are others which seem to us more progressive in
nature. Among these can be prominently mentioned decisions of the United States Supreme Court,
and the Supreme Court of these Islands. Thus, the always forward looking jurist, Mr. Justice Holmes,

in the late case of Holt vs. United States ([1910], 218 U. S., 245), in resolving an objection based
upon what he termed "an extravagant extension of the Fifth Amendment," said: "The prohibition of
compelling a man in a criminal court to be a witness against himself is a prohibition of the use of
physical or moral compulsion to extort communications from him, not an exclusion of his body as
evidence when it may be material." (See also, of same general tenor, decision of Mr. Justice Day in
Adams vs. New York [1903], 192 U. S., 585.) The Supreme Court of the Philippine Islands, in two
decisions, has seemed to limit the protection to a prohibition against compulsory testimonial selfincrimination. The constitutional limitation was said to be "simply a prohibition against legal process
to extract from the defendant's own lips, against his will, an admission of his guilt." (U. S. vs. Tan
Teng [1912], 23 Phil., 145; U. S. vs. Ong Siu Hong [1917], 36 Phil., 735, and the derivatory principle
announced in 16 Corpus Juris, 567, 568, citing the United States Supreme Court and the Supreme
Court of the Philippine Islands as authority.)
Although we have stated s proposition previously announced by this court and by the highest
tribunal in the United States, we cannot unconcernedly leave the subject without further
consideration. Even in the opinion Mr. Justice Holmes, to which we have alluded, there was inserted
the careful proviso that "we need not consider how far a court would go in compelling a man to
exhibit himself." Other courts have likewise avoided any attempt to determine the exact location of
the dividing line between what is proper and what is improper in this very broad constitutional field.
But here before us is presented what would seem to be the most extreme case which could be
imagined. While the United States Supreme Court could nonchalantly decree that testimony that an
accused person put on a blouse and it fitted him is not a violation of the constitutional provision,
while the Supreme Court of Nuevada could go so far as to require the defendant to roll up his sleeve
in order to disclose tattoo marks, and while the Supreme Court of the Philippine Islands could permit
substances taken from the person of an accused to be offered in evidence, none of these even
approach in apparent harshness an order to make a woman, possibly innocent, to disclose her body
in all of its sanctity to the gaze of strangers. We can only consistently consent to the retention of a
principle which would permit of such a result by adhering steadfastly to the proposition that the
purpose of the constitutional provision was and is merely to prohibit testimonial compulsion.
So much for the authorities. For the nonce we would prefer to forget them entirely, and here in the
Philippines, being in the agrreable state of breaking new ground, would rather desire our decision to
rest on a strong foundation of reason and justice than on a weak one blind adherence to tradition
and precedent. Moreover, we believe that an unbiased consideration of the history of the
constitutional provisions will disclose that our conclusion is in exact accord with the causes which led
to its adoption.
The maxim of the common law, Nemo tenetur seipsum accusare, was recognized in England in early
days, but not in the other legal systems of the world, in a revolt against the thumbscrew and the
rack. A legal shield was raised against odious inquisitorial methods of interrogating an accused
person by which to extort unwilling confessions with the ever present temptation to commit the crime
of perjury. The kernel of the privilege as disclosed by the textwriters was testimonial compulsion. As
forcing a man to be a witness against himself was deemed contrary to the fundamentals of
republican government, the principle was taken into the American Constitutions, and from the United
States was brought to the Philippine Islands, in exactly as wide but no wider a scope as it
existed in old English days. The provision should here be approached in no blindly worshipful spirit,
but with a judicious and a judicial appreciation of both its benefits and its abuses. (Read the
scholarly articles of Prof. Wigmore in 5 Harvard L. R. [1891], p. 71, and 15 Harvard L. R., 1902, p.
610 found in 4 Wigmore on Evidence, pp. 3069 et seq., and U. S. vs. Navarro [1904], Phil., 143.)
Perhaps the best way to test the correctness of our position is to go back once more to elements
and ponder on what is the prime purpose of a criminal trial. As we view it, the object of having

criminal laws is to purgue the community of persons who violate the laws to the great prejudice of
their fellow men. Criminal procedure, the rules of evidence, and constitutional provisions, are then
provided, not to protect the guilty but to protect the innocent. No rule is intemended to be so rigid as
to embarrass the administration of justice in its endeavor to ascertain the truth. No accused person
should be afraid of the use of any method which will tend to establish the truth. For instance, under
the facts before us, to use torture to make the defendant admit her guilt might only result in including
her to tell a falsehood. But no evidence of physical facts can for any substantial reason be held to be
detrimental to the accused except in so far as the truth is to be avoided in order to acquit a guilty
person.

Skinner v. Railway Labor Executives' Association (No. 87-1555)

Argued: November 2, 1988
Decided: March 21, 1989
___
Syllabus
Opinion, Kennedy
Concurrence, Stevens
Dissent, Marshall
Facts of the Case

Obviously a stirring plea can be made showing that under the due process of law cause of the
Constitution every person has a natural and inherent right to the possession and control of his own
body. It is extremely abhorrent to one's sense of decency and propriety to have the decide that such
inviolability of the person, particularly of a woman, can be invaded by exposure to another's gaze. As
Mr. Justice Gray in Union Pacific Railway Co. vs. Botsford ([1891], 141 U. S., 250) said, "To compel
any one, and especially a woman, to lay bare the body, or to submit to the touch of a stranger,
without lawful authority, is an indignity, an assault, and a trespass." Conceded, and yet, as well
suggested by the same court, even superior to the complete immunity of a person to be let alone is
the inherent which the public has in the orderly administration of justice. Unfortunately, all too
frequently the modesty of witnesses is shocked by forcing them to answer, without any mental
evasion, questions which are put to them; and such a tendency to degrade the witness in public
estimation does not exempt him from the duty of disclosure. Between a sacrifice of the
ascertainment of truth to personal considerations, between a disregard of the public welfare for
refined notions of delicacy, law and justice cannot hesitate.
The protection of accused persons has been carried to such an unwarranted extent that criminal
trials have sometimes seemed to be like a game of shuttlecocks, with the judge as referee, the
lawyers as players, the criminal as guest of honor, and the public as fascinated spectators. Against
such a loose extension of constitutional guaranties we are here prepared to voice our protest.
Fully conscious that we are resolving a most extreme case in a sense, which on first impression is a
shock to one's sensibilities, we must nevertheless enforce the constitutional provision in this
jurisdiction in accord with the policy and reason thereof, undeterred by merely sentimental
influences. Once again we lay down the rule that the constitutional guaranty, that no person shall be
compelled in any criminal case to be a witness against himself, is limited to a prohibition against
compulsory testimonial self-incrimination. The corollary to the proposition is that, an ocular
inspection of the body of the accused is permissible. The proviso is that torture of force shall be
avoided. Whether facts fall within or without the rule with its corollary and proviso must, of course, be
decided as cases arise.
It is a reasonable presumption that in an examination by reputable and disinterested physicians due
care will be taken not to use violence and not to embarass the patient any more than is absolutely
necessary. Indeed, no objection to the physical examination being made by the family doctor of the
accused or by doctor of the same sex can be seen.
Although the order of the trial judge, acceding to the request of the assistant fiscal for an
examination of the person of the defendant by physicians was phrased in absolute terms, it should,
nevertheless, be understood as subject to the limitations herein mentioned, and therefore legal. The
writ of habeas corpus prayed for is hereby denied. The costs shall be taxed against the petitioner. So
ordered.
489 U.S. 602

Recognizing the dangers of drug and alcohol abuse by railroad employees, the Federal Railroad
Administration (FRA) implemented regulations requiring mandatory blood and urine tests of
employees involved in certain train accidents. Other FRA rules allowed railroads to administer breath
and urine tests to employees who violate certain safety rules.
Syllabus
Upon the basis of evidence indicating that alcohol and drug abuse by railroad employees had
caused or contributed to a number of significant train accidents, the Federal Railroad Administration
(FRA) promulgated regulations under petitioner Secretary of Transportation's statutory authority to
adopt safety standards for the industry. Among other things, Subpart C of the regulations requires
railroads to see that blood and urine tests of covered employees are conducted following certain
major train accidents or incidents, while Subpart D authorizes, but does not require, railroads to
administer breath or urine tests, or both, to covered employees who violate certain safety rules.
Respondents, the Railway Labor Executives' Association and various of its member labor
organizations, brought suit in the Federal District Court to enjoin the regulations. The court granted
summary judgment for petitioners, concluding that the regulations did not violate the Fourth
Amendment. The Court of Appeals reversed, ruling, inter alia, that a requirement of particularized
suspicion is essential to a finding that toxicological testing of railroad employees is reasonable under
the Fourth Amendment. The court stated that such a requirement would ensure that the tests, which
reveal the presence of drug metabolites that may remain in the body for weeks following ingestion,
are confined to the detection of current impairment.
Held:
1. The Fourth Amendment is applicable to the drug and alcohol testing mandated or authorized by
the FRA regulations. Pp. 613-618.
(a) The tests in question cannot be viewed as private action outside the reach of the Fourth
Amendment. A railroad that complies with Subpart C does so by compulsion of sovereign authority,
and therefore must be viewed as an instrument or agent of the Government. Similarly, even though
Subpart D does not compel railroads to test, it cannot be concluded, in the context of this facial
challenge, that such testing will be primarily the result of private initiative, since specific features of
the regulations combine to establish that the Government has actively encouraged, endorsed, and
participated in the testing. Specifically, since [p603] the regulations preempt state laws covering the
same subject matter, and are intended to supersede collective bargaining and arbitration award
provisions, the Government has removed all legal barriers to the testing authorized by Subpart D.
Moreover, by conferring upon the FRA the right to receive biological samples and test results
procured by railroads, Subpart D makes plain a strong preference for testing and a governmental
desire to share the fruits of such intrusions. In addition, the regulations mandate that railroads not
bargain away their Subpart D testing authority, and provide that an employee who refuses to submit
to such tests must be withdrawn from covered service. Pp. 614-616.
(b) The collection and subsequent analysis of the biological samples required or authorized by the
regulations constitute searches of the person subject to the Fourth Amendment. This Court has long
recognized that a compelled intrusion into the body for blood to be tested for alcohol content, and
the ensuing chemical analysis, constitute searches. Similarly, subjecting a person to the breath test
authorized by Subpart D must be deemed a search, since it requires the production of "deep lung"
breath, and thereby implicates concerns about bodily integrity. Moreover, although the collection and
testing of urine under the regulations do not entail any intrusion into the body, they nevertheless
constitute searches, since they intrude upon expectations of privacy as to medical information and
the act of urination that society has long recognized as reasonable. Even if the employer's

antecedent interference with the employee's freedom of movement cannot be characterized as an

independent Fourth Amendment seizure, any limitation on that freedom that is necessary to obtain
the samples contemplated by the regulations must be considered in assessing the intrusiveness of
the searches affected by the testing program. Pp. 616-618.
2. The drug and alcohol tests mandated or authorized by the FRA regulations are reasonable under
the Fourth Amendment, even though there is no requirement of a warrant or a reasonable suspicion
that any particular employee may be impaired, since, on the present record, the compelling
governmental interests served by the regulations outweigh employees' privacy concerns. Pp. 618633.
(a) The Government's interest in regulating the conduct of railroad employees engaged in safetysensitive tasks in order to ensure the safety of the traveling public and of the employees themselves
plainly justifies prohibiting such employees from using alcohol or drugs while on duty or on call for
duty and the exercise of supervision to assure that the restrictions are in fact observed. That interest
presents "special needs" beyond normal law enforcement that may justify departures from the usual
warrant and probable cause requirements. Pp. 618-621. [p604]
(b) Imposing a warrant requirement in the present context is not essential to render the intrusions at
issue reasonable. Such a requirement would do little to further the purposes of a warrant, since both
the circumstances justifying toxicological testing and the permissible limits of such intrusions are
narrowly and specifically defined by the regulations, and doubtless are well known to covered
employees, and since there are virtually no facts for a neutral magistrate to evaluate, in light of the
standardized nature of the tests and the minimal discretion vested in those charged with
administering the program. Moreover, imposing a warrant requirement would significantly hinder, and
in many cases frustrate, the objectives of the testing program, since the delay necessary to procure
a warrant could result in the destruction of valuable evidence, in that alcohol and drugs are
eliminated from the bloodstream at a constant rate, and since the railroad supervisors who set the
testing process in motion have little familiarity with the intricacies of Fourth Amendment
jurisprudence. Pp. 621-624.
(c) Imposing an individualized suspicion requirement in the present context is not essential to render
the intrusions at issue reasonable. The testing procedures contemplated by the regulations pose
only limited threats to covered employees' justifiable privacy expectations, particularly since they
participate in an industry subject to pervasive safety regulation by the Federal and State
Governments. Moreover, because employees ordinarily consent to significant employer-imposed
restrictions on their freedom of movement, any additional interference with that freedom that occurs
in the time it takes to procure a sample from a railroad employee is minimal. Furthermore,Schmerber
v. California, 384 U.S. 757, established that governmentally imposed blood tests do not constitute an
unduly extensive imposition on an individual's privacy and bodily integrity, and the breath tests
authorized by Subpart D are even less intrusive than blood tests. And, although urine tests require
employees to perform an excretory function traditionally shielded by great privacy, the regulations
reduce the intrusiveness of the collection process by requiring that samples be furnished in a
medical environment, without direct observation. In contrast, the governmental interest in testing
without a showing of individualized suspicion is compelling. A substance-impaired railroad employee
in a safety-sensitive job can cause great human loss before any signs of the impairment become
noticeable, and the regulations supply an effective means of deterring such employees from using
drugs or alcohol by putting them on notice that they are likely to be discovered if an accident occurs.
An individualized suspicion requirement would also impede railroads' ability to obtain valuable
information about the causes of accidents or incidents and how to protect the public, since obtaining
evidence giving rise to the suspicion [p605] that a particular employee is impaired is impracticable in
the chaotic aftermath of an accident, when it is difficult to determine which employees contributed to
the occurrence and objective indicia of impairment are absent. The Court of Appeals' conclusion that
the regulations are unreasonable because the tests in question cannot measure current impairment
is flawed. Even if urine test results disclosed nothing more specific than the recent use of controlled
substances, this information would provide the basis for a further investigation, and might allow the
FRA to reach an informed judgment as to how the particular accident occurred. More importantly, the
court overlooked the FRA's policy of placing principal reliance on blood tests, which unquestionably
can identify recent drug use, and failed to recognize that the regulations are designed not only to
discern impairment, but to deter it. Pp. 624-632.
839 F.2d 575, reversed.
KENNEDY, J., delivered the opinion of the Court, in which REHNQUIST, C.J., and WHITE,
BLACKMUN, O'CONNOR, and SCALIA, JJ., joined, and in all but portions of Part III of which
STEVENS, J., joined. STEVENS, J., filed an opinion concurring in part and concurring in the

judgment, post, p. 634. MARSHALL, J., filed a dissenting opinion, in which BRENNAN, J.,
joined, post, p. 635 [p606]

Background[edit]
In the mid-1980s, the Federal Railroad Administration (FRA) issued regulations to adopt safety
standards for the railroad industry. Included in these regulations was mandatory blood and urine
tests of employees involved in train accidents, to determine if they were using illegal narcotics. The
FRA also adopted regulations that authorized railroads to administer breath and urine drug tests to
employees who violated safety rules. The Railway Labor Executives' Association, an umbrella group
of railway trade unions, sued to have the regulations declared an unconstitutional violation of
the Fourth Amendment to the United States Constitution.
Decision[edit]
At face value, random drug testing appears to be a violation of the Fourth Amendment, which
protects the right of citizens "to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures." In addition, the Fourth Amendment states that "no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing
the place to be searched, and the persons or things to be seized." However, the United States
Supreme Court ruled in Skinner that random drug testing is permissible for employees in safety
sensitive positions. Justice Kennedy, speaking for the majority, wrote:

[T]he Government interest in testing without a showing of

The dissenting opinion by Justices Marshall and Brennan illustrates the other side of the
controversy:

The issue in this case is not whether declaring a war on ill

cases, Schenck v. United States, 249 U.S. 47 (1919); Den

489 U.S. 656 (109 S.Ct. 1384, 103 L.Ed.2d 685)

NATIONAL TREASURY EMPLOYEES UNION, et al., Petitioners v. William VON RAAB,
Commissioner, United States Customs Service.
No. 86-1879.
Argued: Nov. 2, 1988.
Decided: March 21, 1989.
opinion, KENNEDY [HTML]
dissent, MARSHALL, BRENNAN [HTML]
dissent, SCALIA, STEVENS [HTML]
Syllabus
The United States Customs Service, which has as its primary enforcement mission the interdiction
and seizure of illegal drugs smuggled into the country, has implemented a drug-screening program
requiring urinalysis tests of Service employees seeking transfer or promotion to positions having a
direct involvement in drug interdiction or requiring the incumbent to carry firearms or to handle

"classified" material. Among other things, the program requires that an applicant be notified that his
selection is contingent upon successful completion of drug screening, sets forth procedures for
collection and analysis of the requisite samples and procedures designed both to ensure against
adulteration or substitution of specimens and to limit the intrusion on employee privacy, and provides
that test results may not be turned over to any other agency, including criminal prosecutors, without
the employee's written consent. Petitioners, a federal employees' union and one of its officials, filed
suit on behalf of Service employees seeking covered positions, alleging that the drug-testing
program violated, inter alia, the Fourth Amendment. The District Court agreed and enjoined the
program. The Court of Appeals vacated the injunction, holding that, although the program effects a
search within the meaning of the Fourth Amendment, such searches are reasonable in light of their
limited scope and the Service's strong interest in detecting drug use among employees in covered
positions.
Held:
1. Where the Government requires its employees to produce urine samples to be analyzed for
evidence of illegal drug use, the collection and subsequent chemical analysis of such samples are
searches that must meet the reasonableness requirement of the Fourth Amendment. Cf. Skinner v.
Railway Labor Executives' Assn., 489 U.S. 602, 616-618, 109 S.Ct. 1402, 1412-1413, 103 L.Ed.2d
639 (1989). However, because the Service's testing program is not designed to serve the ordinary
needs of law enforcementi.e., test results may not be used in a criminal prosecution without the
employee's consent, and the purposes of the program are to deter drug use among those eligible for
promotion to sensitive positions and to prevent the promotion of drug users to those positionsthe
public interest in the program must be balanced against the individual's privacy concerns implicated
by the tests to determine whether a warrant, probable cause, or some level of individualized
suspicion is required in this particular context. Railway Labor Executives,489 U.S., at 619-620, 109
S.Ct., at 1413-1414. Pp. 665-666.
2. A warrant is not required by the balance of privacy and governmental interests in the context of
this case. Such a requirement would serve only to divert valuable agency resources from the
Service's primary mission, which would be compromised if warrants were necessary in connection
with routine, yet sensitive, employment decisions. Furthermore, a warrant would provide little or no
additional protection of personal privacy, since the Service's program defines narrowly and
specifically the circumstances justifying testing and the permissible limits of such intrusions; affected
employees know that they must be tested, are aware of the testing proce ures that the Service must
follow, and are not subject to the discretion of officials in the field; and there are no special facts for a
neutral magistrate to evaluate, in that implementation of the testing process becomes automatic
when an employee pursues a covered position. Pp. 666-667.
3. The Service's testing of employees who apply for promotion to positions directly involving the
interdiction of illegal drugs, or to positions that require the incumbent to carry firearms, is reasonable
despite the absence of a requirement of probable cause or of some level of individualized suspicion.
Pp. 667-677.
(a) In light of evidence demonstrating that there is a national crisis in law enforcement caused by the
smuggling of illicit narcotics, the Government has a compelling interest in ensuring that front-line
interdiction personnel are physically fit and have unimpeachable integrity and judgment. It also has a
compelling interest in preventing the risk to the life of the citizenry posed by the potential use of
deadly force by persons suffering from impaired perception and judgment. These governmental
interests outweigh the privacy interests of those seeking promotion to such positions, who have a
diminished expectation of privacy in respect to the intrusions occasioned by a urine test by virtue of
the special, and obvious, physical and ethical demands of the positions. Pp. 668-672.
(b) Petitioners' contention that the testing program is unreasonable because it is not based on a
belief that testing will reveal any drug use by covered employees evinces an unduly narrow view of
the context in which the program was implemented. Although it was not motivated by any perceived
drug problem among Service employees, the program is nevertheless justified by the extraordinary
safety and national security hazards that would attend the promotion of drug users to the sensitive
positions in question. Moreover, the mere circumstance that all but a few of the employees tested
are innocent does not impugn the program's validity, since it is designed to prevent the substantial
harm that could be caused by the promotion of drug users as much as it is designed to detect actual
drug use. Pp. 673-675.
(c) Also unpersuasive is petitioners' contention that the program is not a sufficiently productive
mechanism to justify its intrusion on Fourth Amendment interests because illegal drug users can
easily avoid detection by temporary abstinence or by surreptitious adulteration of their urine
specimens. Addicts may be unable to abstain even for a limited period or may be unaware of the
"fade-away effect" of certain drugs. More importantly, since a particular employee's pattern of

elimination for a given drug cannot be predicted with perfect accuracy and may extend for as long as
22 days, and since this information is not likely to be known or available to the employee in any
event, he cannot reasonably expect to deceive the test by abstaining after the test date is assigned.
Nor can he expect attempts at adulteration to succeed, in view of the precautions built into the
program to ensure the integrity of each sample. Pp. 676-677.
4. The record is inadequate for the purpose of determining whether the Service's testing of those
who apply for promotion to positions where they would handle "classified" information is reasonable,
since it is not clear whether persons occupying particular positions apparently subject to such testing
are likely to gain access to sensitive information. On remand, the Court of Appeals should examine
the criteria used by the Service in determining what materials are classified and in deciding whom to
test under this rubric and should, in assessing the reasonableness of requiring tests of those
employees, consider pertinent information bearing upon their privacy expectations and the
supervision to which they are already subject. Pp. 677-678.
816 F.2d 170 (CA5 1987), affirmed in part, vacated in part, and remanded.
KENNEDY, J., delivered the opi ion of the Court, in which REHNQUIST, C.J., and WHITE,
BLACKMUN, and O'CONNOR, JJ., joined. MARSHALL, J., filed a dissenting opinion, in which
BRENNAN, J., joined, post, p. 679. SCALIA, J., filed a dissenting opinion, in which STEVENS, J.,
joined, post, p. 680.
Lois G. Williams, Washington, D.C., for petitioners.
Sol. Gen. Charles Fried, Washington, D.C., for respondent.
TOP
Justice KENNEDY delivered the opinion of the Court.
We granted certiorari to decide whether it violates the Fourth Amendment for the United States
Customs Service to require a urinalysis test from employees who seek transfer or promotion to
certain positions.
* A.
The United States Customs Service, a bureau of the Department of the Treasury, is the federal
agency responsible for processing persons, carriers, cargo, and mail into the United States,
collecting revenue from imports, and enforcing customs and related laws. See United States
Customs Service, Customs U.S.A., Fiscal Year 1985, p. 4. An important responsibility of the Service
is the interdiction and seizure of contraband, including illegal drugs. Ibid. In 1987 alone, Customs
agents seized drugs with a retail value of nearly $9 billion. See United States Customs Service,
Customs U.S.A., Fiscal Year 1987, p. 40. In the routine discharge of their duties, many Customs
employees have direct contact with those who traffic in drugs for profit. Drug import operations, often
directed by sophisticated criminal syndicates, United States v. Mendenhall, 446 U.S. 544, 561-562,
100 S.Ct. 1870, 1880-1881, 64 L.Ed.2d 497 (1980) (Powell, J., concurring), may be effected by
violence or its threat. As a necessary response, many Customs operatives carry and use firearms in
connection with their official duties. App. 109.
In December 1985, respondent, the Commissioner of Customs, established a Drug Screening Task
Force to explore the possibility of implementing a drug-screening program within the Service. Id., at
11. After extensive research and consultation with experts in the field, the task force concluded that
"drug screening through urinalysis is technologically reliable, valid and accurate." Ibid. Citing this
conclusion, the Commissioner announced his intention to require drug tests of employees who
applied for, or occupied, certain positions within the Service. Id., at 10-11. The Commissioner stated
his belief that "Customs is largely drug-free," but noted also that "unfortunately no segment of
society is immune from the threat of illegal drug use." Id., at 10. Drug interdiction has become the
agency's primary enforcement mission, and the Commissioner stressed that "there is no room in the
Customs Service for those who break the laws prohibiting the possession and use of illegal drugs."
Ibid.
In May 1986, the Commissioner announced implementation of the drug-testing program. Drug tests
were made a condition of placement or employment for positions that meet one or more of three
criteria. The first is direct involvement in drug interdiction or enforcement of related laws, an activity
the Commissioner deemed fraught with obvious dangers to the mission of the agency and the lives
of Customs agents. Id., at 17, 113. The second criterion is a requirement that the incumbent carry
firearms, as the Commissioner concluded that "public safety demands that employees who carry
deadly arms and are prepared to make instant life or death decisions be drug free." Id., at 113. The
third criterion is a requirement for the incumbent to handle "classified" material, which the
Commissioner determined might fall into the hands of smugglers if accessible to employees who, by
reason of their own illegal drug use, are susceptible to bribery or blackmail. Id., at 114.

After an employee qualifies for a position covered by the Customs testing program, the Service
advises him by letter that his final selection is contingent upon successful completion of rug
screening. An independent contractor contacts the employee to fix the time and place for collecting
the sample. On reporting for the test, the employee must produce photographic identification and
remove any outer garments, such as a coat or a jacket, and personal belongings. The employee
may produce the sample behind a partition, or in the privacy of a bathroom stall if he so chooses. To
ensure against adulteration of the specimen, or substitution of a sample from another person, a
monitor of the same sex as the employee remains close at hand to listen for the normal sounds of
urination. Dye is added to the toilet water to prevent the employee from using the water to adulterate
the sample.
Upon receiving the specimen, the monitor inspects it to ensure its proper temperature and color,
places a tamper-proof custody seal over the container, and affixes an identification label indicating
the date and the individual's specimen number. The employee signs a chain-of-custody form, which
is initialed by the monitor, and the urine sample is placed in a plastic bag, sealed, and submitted to a
laboratory. 1
The laboratory tests the sample for the presence of marijuana, cocaine, opiates, amphetamines, and
phencyclidine. Two tests are used. An initial screening test uses the enzyme-multipliedimmunoassay technique (EMIT). Any specimen that is identified as positive on this initial test must
then be confirmed using gas chromatography/mass spectrometry (GC/MS). Confirmed positive
results are reported to a "Medical Review Officer," "a licensed physician . . . who has knowledge of
substance abuse disorders and has appropriate medical training to interpret and evaluate an
individual's positive test result ogether with his or her medical history and any other relevant
biomedical information." HHS Reg. 1.2, 53 Fed.Reg. 11980 (1988); HHS Reg. 2.4(g), 53
Fed.Reg., at 11983. After verifying the positive result, the Medical Review Officer transmits it to the
agency.
Customs employees who test positive for drugs and who can offer no satisfactory explanation are
subject to dismissal from the Service. Test results may not, however, be turned over to any other
agency, including criminal prosecutors, without the employee's written consent.
B
Petitioners, a union of federal employees and a union official, commenced this suit in the United
States District Court for the Eastern District of Louisiana on behalf of current Customs Service
employees who seek covered positions. Petitioners alleged that the Custom Service drug-testing
program violated, inter alia, the Fourth Amendment. The District Court agreed. 649 F.Supp. 380
(1986). The court acknowledged "the legitimate governmental interest in a drug-free work place and
work force," but concluded that "the drug testing plan constitutes an overly intrusive policy of
searches and seizures without probable cause or reasonable suspicion, in violation of legitimate
expectations of privacy." Id., at 387. The court enjoined the drug-testing program, and ordered the
Customs Service not to require drug tests of any applicants for covered positions.
A divided panel of the United States Court of Appeals for the Fifth Circuit vacated the injunction. 816
F.2d 170 (1987). The court agreed with petitioners that the drug-screening program, by requiring an
employee to produce a urine sample for chemical testing, effects a search within the meaning of the
Fourth Amendment. The court held further that the searches required by the Commissioner's
directive are reasonable under the Fourth Amendment. It first noted that "the Service has attempted
to minimize the intrusiveness of the search" by not requiring visual observation of the act of urination
and by affording notice to the employee that he will be tested. Id., at 177. The court also considered
it significant that the program limits discretion in determining which employees are to be tested, ibid.,
and noted that the tests are an aspect of the employment relationship, id., at 178.
The court further found that the Government has a strong interest in detecting drug use among
employees who meet the criteria of the Customs program. It reasoned that drug use by covered
employees casts substantial doubt on their ability to discharge their duties honestly and vigorously,
undermining public confidence in the integrity of the Service and concomitantly impairing the
Service's efforts to enforce the drug laws. Ibid. Illicit drug users, the court found, are susceptible to
bribery and blackmail, may be tempted to divert for their own use portions of any drug shipments
they interdict, and may, if required to carry firearms, "endanger the safety of their fellow agents, as
well as their own, when their performance is impaired by drug use." Ibid. "Considering the nature
and responsibilities of the jobs for which applicants are being considered at Customs and the limited
scope of the search," the court stated, "the exaction of consent as a condition of assignment to the
new job is not unreasonable." Id., at 179.
The dissenting judge concluded that the Customs program is not an effective method for achieving
the Service's goals. He argued principally that an employee "given a five day notification of a test
date need only abstain from drug use to prevent being identified as a user." Id., at 184. He noted

also that persons already employed in sensitive positions are not subject to the test. Ibid. Because
he did not believe the Customs program can achieve its purposes, the dissenting judge found it
unreasonable under the Fourth Amendment.
We granted certiorari. 485 U.S. 903, 108 S.Ct. 1072, 99 L.Ed.2d 232 (1988) We now affirm so much
of the judgment of the Court of Appeals as upheld the testing of employees directly involved in drug
interdiction or required to carry firearms. We vacate the judgment to the extent it upheld the testing
of applicants for positions requiring the incumbent to handle classified materials, and remand for
further proceedings.
II
In Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 616-618, 109 S.Ct. 1402, 1412-1413,
103 L.Ed.2d 639, decided today, we held that federal regulations requiring employees of private
railroads to produce urine samples for chemical testing implicate the Fourth Amendment, as those
tests invade reasonable expectations of privacy. Our earlier cases have settled that the Fourth
Amendment protects individuals from unreasonable searches conducted by the Government, even
when the Government acts as an employer, O'Connor v. Ortega, 480 U.S. 709, 717, 107 S.Ct. 1492,
1498, 94 L.Ed.2d 714 (1987)(plurality opinion); see id., at 731, 107 S.Ct., at 1505 (SCALIA, J.,
concurring in judgment), and, in view of our holding in Railway Labor Executives that urine tests are
searches, it follows that the Customs Service's drug-testing program must meet the reasonableness
requirement of the Fourth Amendment.
While we have often emphasized, and reiterate today, that a search must be supported, as a general
matter, by a warrant issued upon probable cause, see, e.g., Griffin v. Wisconsin,483 U.S. 868, 873,
107 S.Ct. 3164, 3168, 97 L.Ed.2d 709 (1987); United States v. Karo,468 U.S. 705, 717, 104 S.Ct.
3296, 3304, 82 L.Ed.2d 530 (1984), our decision in Railway Labor Executives reaffirms the
longstanding principle that neither a warrant nor probable cause, nor, indeed, any measure of
individualized suspicion, is an indispensable component of reasonableness in every circumstance.
Ante, at 1413-1416. See also New Jersey v. T.L.O., 469 U.S. 325, 342, n. 8, 105 S.Ct. 733, 743, n.
8, 83 L.Ed.2d 720 (1985); United States v. Martinez-Fuerte, 428 U.S. 543, 556-561, 96 S.Ct. 3074,
3082-3085, 49 L.Ed.2d 1116 (1976). As we note in Railway Labor Executives, our cases establish
that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal
need for law enforcement, it is necessary to balance the individual's privacy expectations against the
Government's interests to determine whether it is impractical to require a warrant or some level of
individualized suspicion in the particular context. Ante, at 1413-1414.
It is clear that the Customs Service's drug-testing program is not designed to serve the ordinary
needs of law enforcement. Test results may not be used in a criminal prosecution of the employee
without the employee's consent. The purposes of the program are to deter drug use among those
eligible for promotion to sensitive positions within the Service and to prevent the promotion of drug
users to those positions. These substantial interests, no less than the Government's concern for safe
rail transportation at issue in Railway Labor Executives, present a special need that may justify
departure from the ordinary warrant and probable-cause requirements.
Petitioners do not contend that a warrant is required by the balance of privacy and governmental
interests in this context, nor could any such contention withstand scrutiny. We have recognized
before that requiring the Government to procure a warrant for every work-related intrusion "would
conflict with 'the common-sense realization that government offices could not function if every
employment decision became a constitutional matter.' " O'Connor v. Ortega, supra, 480 U.S., at 722,
107 S.Ct., at 1500, quoting Connick v. Myers, 461 U.S. 138, 143, 103 S.Ct. 1684, 1688, 75 L.Ed.2d
708 (1983). See also 480 U.S., at 732, 107 S.Ct., at 1506 (SCALIA, J., concurring in judgment); New
Jersey v. T.L.O., supra, 469 U.S., at 340, 105 S.Ct., at 742 (noting that "the warrant requi ement . . .
is unsuited to the school environment: requiring a teacher to obtain a warrant before searching a
child suspected of an infraction of school rules (or of the criminal law) would unduly interfere with the
maintenance of the swift and informal disciplinary procedures needed in the schools"). Even if
Customs Service employees are more likely to be familiar with the procedures required to obtain a
warrant than most other Government workers, requiring a warrant in this context would serve only to
divert valuable agency resources from the Service's primary mission. The Customs Service has
been entrusted with pressing responsibilities, and its mission would be compromised if it were
required to seek search warrants in connection with routine, yet sensitive, employment decisions.
Furthermore, a warrant would provide little or nothing in the way of additional protection of personal
privacy. A warrant serves primarily to advise the citizen that an intrusion is authorized by law and
limited in its permissible scope and to interpose a neutral magistrate between the citizen and the law
enforcement officer "engaged in the often competitive enterprise of ferreting out crime." Johnson v.
United States, 333 U.S. 10, 14, 68 S.Ct. 367, 369, 92 L.Ed. 436 (1948). But in the present context,
"the circumstances justifying toxicological testing and the permissible limits of such intrusions are

defined narrowly and specifically . . ., and doubtless are well known to covered employees." Ante, at
1415. Under the Customs program, every employee who seeks a transfer to a covered position
knows that he must take a drug test, and is likewise aware of the procedures the Service must follow
in administering the test. A covered employee is simply not subject "to the discretion of the official in
the field." Camara v. Municipal Court of San Francisco, 387 U.S. 523, 532, 87 S.Ct. 1727, 1732, 18
L.Ed.2d 930 (1967). The process becomes automatic when the employee elects to apply for, and
thereafter pursue, a covered position. Because the Service does not make a discretionary
determination to search based on a judgment that certain conditions are present, there are simply
"no special facts for a neutral magistrate to evaluate." South Dakota v. Opperman, 428 U.S. 364,
383, 96 S.Ct. 3092, 3104, 49 L.Ed.2d 1000 (1976) (Powell, J., concurring).
B
Even where it is reasonable to dispense with the warrant requirement in the particular
circumstances, a search ordinarily must be based on probable cause. Ante, at 1416. Our cases
teach, however, that the probable-cause standard " 'is peculiarly related to criminal investigations.' "
Colorado v. Bertine, 479 U.S. 367, 371, 107 S.Ct. 738, 741, 93 L.Ed.2d 739 (1987), quoting South
Dakota v. Opperman, supra, 428 U.S., at 370, n. 5, 96 S.Ct., at 3097, n. 5. In particular, the
traditional probable-cause standard may be unhelpful in analyzing the reasonableness of routine
administrative functions, Colorado v. Bertine, supra, 479 U.S., at 371, 107 S.Ct., at 741; see also
O'Connor v. Ortega, 480 U.S., at 723, 107 S.Ct., at 1500-1501, especially where the Government
seeks to prevent the development of hazardous conditions or to detect violations that rarely generate
articulable grounds for searching any particular place or person. Cf. Camara v. Municipal Court of
San Francisco, supra, 387 U.S., at 535-536, 87 S.Ct., at 1734-1735 (noting that building code
inspections, unlike searches conducted pursuant to a criminal investigation, are designed "to prevent
even the unintentional development of conditions which are hazardous to public health and safety");
United States v. Martinez-Fuerte, 428 U.S., at 557, 96 S.Ct., at 3082 (noting that requiring
particularized suspicion before routine stops on major highways near the Mexican border "would be
impractical because the flow of traffic tends to be too heavy to allow the particularized study of a
given car that would enable it to b identified as a possible carrier of illegal aliens"). Our precedents
have settled that, in certain limited circumstances, the Government's need to discover such latent or
hidden conditions, or to prevent their development, is sufficiently compelling to justify the intrusion on
privacy entailed by conducting such searches without any measure of individualized suspicion. E.g.,
ante, at 1416-1417. We think the Government's need to conduct the suspicionless searches required
by the Customs program outweighs the privacy interests of employees engaged directly in drug
interdiction, and of those who otherwise are required to carry firearms.
The Customs Service is our Nation's first line of defense against one of the greatest problems
affecting the health and welfare of our population. We have adverted before to "the veritable national
crisis in law enforcement caused by smuggling of illicit narcotics." United States v. Montoya de
Hernandez, 473 U.S. 531, 538, 105 S.Ct. 3304, 3309, 87 L.Ed.2d 381 (1985). See also Florida v.
Royer, 460 U.S. 491, 513, 103 S.Ct. 1319, 1332, 75 L.Ed.2d 229 (BLACKMUN, J., dissenting). Our
cases also reflect the traffickers' seemingly inexhaustible repertoire of deceptive practices and
elaborate schemes for importing narcotics, e.g., United States v. Montoya de Hernandez, supra, 473
U.S., at 538-539, 105 S.Ct., at 3309-3310; United States v. Ramsey, 431 U.S. 606, 608-609, 97
S.Ct. 1972, 1974-1975, 52 L.Ed.2d 617 (1977). The record in this case confirms that, through the
adroit selection of source locations, smuggling routes, and increasingly elaborate methods of
concealment, drug traffickers have managed to bring into this country increasingly large quantities of
illegal drugs. App. 111. The record also indicates, and it is well known, that drug smugglers do not
hesitate to use violence to protect their lucrative trade and avoid apprehension. Id., at 109.
Many of the Service's employees are often exposed to this criminal element and to the controlled
substances it seeks to smuggle into the country. Ibid. Cf. United States v. Montoya de Hernandez,
supra, 473 U.S., at 543, 105 S.Ct., at 3311. The physical safety of these employees may be
threatened, and many may be tempted not only by bribes from the traffickers with whom they deal,
but also by their own access to vast sources of valuable contraband seized and controlled by the
Service. The Commissioner indicated below that "Customs officers have been shot, stabbed, run
over, dragged by automobiles, and assaulted with blunt objects while performing their duties." App.
at 109-110. At least nine officers have died in the line of duty since 1974. He also noted that
Customs officers have been the targets of bribery by drug smugglers on numerous occasions, and
several have been removed from the Service for accepting bribes and for other integrity violations.
Id., at 114. See also United States Customs Service, Customs U.S.A., Fiscal Year 1987, p. 31
(reporting internal investigations that resulted in the arrest of 24 employees and 54 civilians); United
States Customs Service, Customs U.S.A., Fiscal Year 1986, p. 32 (reporting that 334 criminal and
serious integrity investigations were conducted during the fiscal year, resulting in the arrest of 37

employees and 17 civilians); United States Customs Service, Customs U.S.A., Fiscal Year 1985, p.
32 (reporting that 284 criminal and serious integrity investigations were conducted during the 1985
fiscal year, resulting in the arrest of 15 employees and 51 civilians).
It is readily apparent that the Government has a compelling interest in ensuring that front-line
interdiction personnel are physically fit, and have unimpeachable integrity and judgment. Indeed, the
Government's interest here is at least as important as its interest in searching travelers entering the
country. We have long held that travelers seeking to enter the country may be stopped and required
to submit to a routine search without probable cause, or even founded suspicion, "because of
national self protection reasonably requiring one entering the country to identify himself as entitled to
come in, and his belongings as effects which may be lawfully brought in." Carroll v. United
States, 267 U.S. 132, 154, 45 S.Ct. 280, 285, 69 L.Ed. 543 (1925). See also United States v.
Montoya de Hernandez, supra, 473 U.S., at 538, 105 S.Ct., at 3308; United States v. Ramsey,
supra,431 U.S., at 617-619, 97 S.Ct., at 1979-1980. This national interest in self-protection could be
irreparably damaged if those charged with safeguarding it were, because of their own drug use,
unsympathetic to their mission of interdicting narcotics. A drug user's indifference to the Service's
basic mission or, even worse, his active complicity with the malefactors, can facilitate importation of
sizable drug shipments or block apprehension of dangerous criminals. The public interest demands
effective measures to bar drug users from positions directly involving the interdiction of illegal drugs.
The public interest likewise demands effective measures to prevent the promotion of drug users to
positions that require the incumbent to carry a firearm, even if the incumbent is not engaged directly
in the interdiction of drugs. Customs employees who may use deadly force plainly "discharge duties
fraught with such risks of injury to others that even a momentary lapse of attention can have
disastrous consequences." Ante, at 1419. We agree with the Government that the public should not
bear the risk that employees who may suffer from impaired perception and judgment will be
promoted to positions where they may need to employ deadly force. Indeed, ensuring against the
creation of this dangerous risk will itself further Fourth Amendment values, as the use of deadly force
may violate the Fourth Amendment in certain circumstances. See Tennessee v. Garner, 471 U.S. 1,
7-12, 105 S.Ct. 1694, 1699-1701, 85 L.Ed.2d 1 (1985).
Against these valid public interests we must weigh the interference with individual liberty that results
from requiring these classes of employees to undergo a urine test. The interference with individual
privacy that results from the collection of a urine sample for subsequent chemical analysis could be
substantial in some circumstances. Ante, at 1418. We have recognized, however, that the
"operational realities of the workplace" may render entirely reasonable certain work-related
intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts.
SeeO'Connor v. Ortega, 480 U.S., at 717, 107 S.Ct., at 1497; id., at 732, 107 S.Ct., at 1505
(SCALIA, J., concurring in judgment). While these operational realities will rarely affect an
employee's expectations of privacy with respect to searches of his person, or of personal effects that
the employee may bring to the workplace, id., at 716, 725, 107 S.Ct., at 1497, 1501, it is plain that
certain forms of public employment may diminish privacy expectations even with respect to such
personal searches. Employees of the United States Mint, for example, should expect to be subject to
certain routine personal searches when they leave the workplace every day. Similarly, those who join
our military or intelligence services may not only be required to give what in other contexts might be
viewed as extraordinary assurances of trustworthiness and probity, but also may expect intrusive
inquiries into their physical fitness for those special positions. Cf. Snepp v. United States, 444 U.S.
507, 509, n. 3, 100 S.Ct. 763, 765, n. 3, 62 L.Ed.2d 704 (1980); Parker v. Levy, 417 U.S. 733, 758,
94 S.Ct. 2547, 2562, 41 L.Ed.2d 439 (1974); Committee for GI Rights v. Callaway, 171 U.S.App.D.C.
73, 84, 518 F.2d 466, 477 (1975).
We think Customs employees who are directly involved in the interdiction of illegal drugs or who are
required to carry firearms in the line of duty likewise have a diminished expectation of privacy in
respect to the intrusions occasioned by a urine test. Unlike most private citizens or government
employees in general, employees involved in drug interdiction reasonably should expect effective
inquiry into their fitness and probity. Much the same is true of employees who are required to carry
firearms. Because successful performance of their duties depends uniquely on their judgment and
dexterity, these employees cannot reasonably expect to keep from the Service personal information
that bears directly on their fitness. Cf. In re Caruso v. Ward, 72 N.Y.2d 432, 441, 534 N.Y.S.2d 142,
146-148, 530 N.E.2d 850, 854-855 (1988). While reasonable tests designed to elicit this information
doubtless infringe some privacy expectations, we do not believe these expectations outweigh the
Government's compelling interests in safety and in the integrity of our borders. 2
Without disparaging the importance of the governmental interests that support the suspicionless
searches of these employees, petitioners nevertheless contend that the Service's drug-testing
program is unreasonable in two particulars. First, petitioners argue that the program is unjustified

because it is not based on a belief that testing will reveal any drug use by covered employees. In
pressing this argument, petitioners point out that the Service's testing scheme was not implemented
in response to any perceived drug problem among Customs employees, and that the program
actually has not led to the discovery of a significant number of drug users. Brief for Petitioners 37,
44; Tr. o Oral Arg. 11-12, 20-21. Counsel for petitioners informed us at oral argument that no more
than 5 employees out of 3,600 have tested positive for drugs. Id., at 11. Second, petitioners contend
that the Service's scheme is not a "sufficiently productive mechanism to justify its intrusion upon
Fourth Amendment interests," Delaware v. Prouse, 440 U.S. 648, 658-659, 99 S.Ct. 1391, 13981399, 59 L.Ed.2d 660 (1979), because illegal drug users can avoid detection with ease by temporary
abstinence or by surreptitious adulteration of their urine specimens. Brief for Petitioners 46-47.
These contentions are unpersuasive.
Petitioners' first contention evinces an unduly narrow view of the context in which the Service's
testing program was implemented. Petitioners do not dispute, nor can there be doubt, that drug
abuse is one of the most serious problems confronting our society today. There is little reason to
believe that American workplaces are immune from this pervasive social problem, as is amply
illustrated by our decision in Railway Labor Executives. See also Masino v. United States, 589 F.2d
1048, 1050, 218 Ct.Cl. 531 (1978) (describing marijuana use by two Customs inspectors). Detecting
drug impairment on the part of employees can be a difficult task, especially where, as here, it is not
feasible to subject employees and their work product to the kind of day-to-day scrutiny that is the
norm in more traditional office environments. Indeed, the almost unique mission of the Service gives
the Government a compelling interest in ensuring that many of these covered employees do not use
drugs even off duty, for such use creates risks of bribery and blackmail against which the
Government is entitled to guard. In light of the extraordinary safety and national security hazards that
would attend the promotion of drug users to positions that require the carrying of firearms or the
interdiction of controlled substances, the Service's policy of deterring drug users from seeking such
promotions cannot be deemed unreasonable.
The mere circumstance that all but a few of the employees tested are entirely innocent of
wrongdoing does not impugn the program's validity. The same is likely to be true of householders
who are required to submit to suspicionless housing code inspections, see Camara v. Municipal
Court of San Francisco, 387 U.S. 523, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967), and of motorists who
are stopped at the checkpoints we approved in United States v. Martinez-Fuerte, 428 U.S. 543, 96
S.Ct. 3074, 49 L.Ed.2d 1116 (1976). The Service's program is designed to prevent the promotion of
drug users to sensitive positions as much as it is designed to detect those employees who use
drugs. Where, as here, the possible harm against which the Government seeks to guard is
substantial, the need to prevent its occurrence furnishes an ample justification for reasonable
searches calculated to advance the Government's goal. 3
We think petitioners' second argumentthat the Service's testing program is ineffective because
employees may attempt to deceive the test by a brief abstention before the test date, or by
adulterating their urine specimensoverstates the case. As the Court of Appeals noted, addicts may
be unable to abstain even for a limited period of time, or may be unaware of the "fade-away effect"
of certain drugs. 816 F.2d, at 180. More importantly, the avoidance techniques suggested by
petitioners are fraught with uncertainty and risks for those employees who venture to attempt them.
A particular employee's pattern of elimination for a given drug cannot be predicted with perfect
accuracy, and, in any event, this information is not likely to be known or available to the employee.
Petitioners' own expert indicated below that the time it takes for particular drugs to become
undetectable in urine can vary widely depending on the individual, and may extend for as long as 22
days. App. 66. See also ante, at 1420 (noting Court of Appeals' reliance on certain academic
literature that indicates that the testing of urine can discover drug use " 'for . . . weeks after the
ingestion of the drug' "). Thus, contrary to petitioners' suggestion, no employee reasonably can
expect to deceive the test by the simple expedient of abstaining after the test date is assigned. Nor
can he expect attempts at adulteration to succeed, in view of the precautions taken by the sample
collector to ensure the integrity of the sample. In all the circumstances, we are persuaded that the
program bears a close and substantial relation to the Service's goal of deterring drug users from
seeking promotion to sensitive positions. 4
In sum, we believe the Government has demonstrated that its compelling interests in safeguarding
our borders and the public safety outweigh the privacy expectations of employees who seek to be
promoted to positions that directly involve the interdiction of illegal drugs or that require the
incumbent to carry a firearm. We hold that the testing of these employees is reasonable under the
Fourth Amendment.
C

We are unable, on the present record, to assess the reasonableness of the Government's testing
program insofar as it covers employees who are required "to handle classified material." App. 17.
We readily agree that the Government has a compelling interest in protecting truly sensitive
information from those who, "under compulsion of circumstances or for other reasons, . . . might
compromise such information." Department of Navy v. Egan, 484 U.S. 518, 528, 108 S.Ct. 818, 824,
98 L.Ed.2d 918 (1988). See also United States v. Robel, 389 U.S. 258, 267, 88 S.Ct. 419, 425, 19
L.Ed.2d 508 (1967) ("We have recognized that, while the Constitution protects against invasions of
individual rights, it does not withdraw from the Government the power to safeguard its vital
interests. . . . The Government can deny access to its secrets to those who would use such
information to harm the Nation"). We also agree that employees who seek promotions to positions
where they would handle sensitive information can be required to submit to a urine test under the
Service's screening program, especially if the positions covered under this category require
background investigations, medical examinations, or other intrusions that may be expected to
diminish their expectations of privacy in respect of a urinalysis test. Cf. Department of Navy v. Egan,
supra, 484 U.S., at 528, 108 S.Ct., at 824(noting that the Executive Branch generally subjects those
desiring a security clearance to "a background investigation that varies according to the degree of
adverse effect the applicant could have on the national security").
It is not clear, however, whether the category defined by the Service's testing directive encompasses
only those Customs employees likely to gain access to sensitive information. Employees who are
tested under the Service's scheme include those holding such diverse positions as "Accountant,"
"Accounting Technician," "Animal Caretaker," "Attorney (All)," "Baggage Clerk," "Co-op Student
(All)," "Electric Equipment Repairer," "Mail Clerk/Assistant," and "Messenger." App. 42-43. We
assume these positions were selected for coverage under the Service's testing program by reason
of the incumbent's access to "classified" information, as it is not clear that they would fall under
either of the two categories we have already considered. Yet it is not evident that those occupying
these positions are likely to gain access to sensitive information, and this apparent discrepancy
raises in our minds the question whether the Service has defined this category of employees more
broadly than is necessary to meet the purposes of the Commissioner's directive.
We cannot resolve this ambiguity on the basis of the record before us, and we think it is appropriate
to remand the case to the Court of Appeals for such proceedings as may be necessary to clarify the
scope of this category of employees subject to testing. Upon remand the Court of Appeals should
examine the criteria used by the Service in determining what materials are classified and in deciding
whom to test under this rubric. In assessing the reasonableness of requiring tests of these
employees, the court should also consider pertinent information bearing upon the employees'
privacy expectations, as well as the supervision t which these employees are already subject.
III
Where the Government requires its employees to produce urine samples to be analyzed for
evidence of illegal drug use, the collection and subsequent chemical analysis of such samples are
searches that must meet the reasonableness requirement of the Fourth Amendment. Because the
testing program adopted by the Customs Service is not designed to serve the ordinary needs of law
enforcement, we have balanced the public interest in the Service's testing program against the
privacy concerns implicated by the tests, without reference to our usual presumption in favor of the
procedures specified in the Warrant Clause, to assess whether the tests required by Customs are
reasonable.
We hold that the suspicionless testing of employees who apply for promotion to positions directly
involving the interdiction of illegal drugs, or to positions that require the incumbent to carry a firearm,
is reasonable. The Government's compelling interests in preventing the promotion of drug users to
positions where they might endanger the integrity of our Nation's borders or the life of the citizenry
outweigh the privacy interests of those who seek promotion to these positions, who enjoy a
diminished expectation of privacy by virtue of the special, and obvious, physical and ethical
demands of those positions. We do not decide whether testing those who apply for promotion to
positions where they would handle "classified" information is reasonable because we find the record
inadequate for this purpose.
The judgment of the Court of Appeals for the Fifth Circuit is affirmed in part and vacated in part, and
the case is remanded for further proceedings consistent with this opinion.
It is so ordered.

908 F.2d 451: Michael S. Bluestein; Dean N. Chantiles; Orange Countyairport Association,
Petitioners, v. Samuel K. Skinner, Secretary of Transportation, Departmentof Transportation,
Federal Aviationadministration, Respondents.richard S. Linn, Petitioner, v. Samuel K. Skinner,
Secretary of Transportation, Departmentof Transportation, Federal Aviationadministration,
Respondents.sheri Albert; Charles Mccune, Petitioners, v. Samuel K. Skinner, Secretary of
Transportation, Departmentof Transportation, Federal Aviationadministration,
Respondents.association of Professional Flight Attendants, Petitioner, v. Samuel K. Skinner,
Secretary of Transportation, Departmentof Transportation, Federal Aviationadministration,
Respondents.independent Union of Flight Attendants, Petitioner, v. Federal Aviation
Administration, Respondent.airline Pilots Association, International, Petitioner, v. Federal
Aviation Administration, Respondent
United States Court of Appeals, Ninth Circuit. - 908 F.2d 451
Argued and Submitted Sept. 15, 1989.Decided July 10, 1990
Walter Kamiat and Laurence Gold, Washington, D.C., for the Air Line Pilots Ass'n, Ass'n of Flight
Attendants, Intern. Ass'n of Machinists and Aerospace Workers, Intern. Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America, Transp.-Communications Intern. Union.

Petition for Review of an Order of the Federal Aviation Administration.

Before CHAMBERS, CANBY and NORRIS, Circuit Judges.
WILLIAM A. NORRIS, Circuit Judge:
1
This is a petition for review of Federal Aviation Administration (FAA) regulations requiring random
drug testing of flight crew members, maintenance personnel, air traffic controllers, and several other
categories of employees in the private commercial aviation industry. Petitioners argue that the
regulations violate the Fourth Amendment and are arbitrary and capricious in violation of Sec. 10(e)
of the Administrative Procedure Act, 5 U.S.C. Sec. 706(2)(A). We reject both of petitioners'
arguments and uphold the regulations.
2

Gary Green and Jerry Anker, Washington, D.C., for the Air Line Pilots Ass'n.
Stephen P. Berzon, Fred H. Altshuler, and Michael Rubin, Altshuler & Berzon, San Francisco, Cal.,
Scott D. Raphael, Newport Beach, Cal., for Michael S. Bluestein, Dean N. Chantilis, and Orange
County Airport Ass'n.
Deborah Greenfield, Matthew Finucane, and Edward Gilmartin, Washington, D.C., for the Ass'n of
Flight Attendants.
Allison Beck, Washington, D.C., for the Intern. Ass'n of Machinists and Aerospace Workers.
James T. Grady and Wilma B. Liebman, Washington, D.C., for the Intern. Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America.
David Rosen and Arthur M. Luby, Washington, D.C., for the Transport Workers of America.

The FAA initially proposed random drug testing in an advance notice of proposed rule making. 51
Fed.Reg. 44432 (Dec. 9, 1986). After receiving over 650 written comments, the FAA issued a notice
of proposed rulemaking. 53 Fed.Reg. 8368 (March 14, 1988). Over 260 written comments were filed
in response to this notice, and the FAA also held a series of public hearings. The final rule was
issued on November 21, 1988. 53 Feg.Reg. 47024.
3
The FAA concluded that while drug use is not "widespread" among commercial aviation personnel
and there is no "overwhelming" drug problem in the industry, nevertheless the record "does show
concrete evidence of drug use in the commercial aviation sector." 53 Fed.Reg. 47029, 47030.
Accordingly, the FAA decided that "[i]n order to ensure that aviation safety is not compromised by a
failure to detect drug users in the aviation industry, the FAA believes that it is appropriate and
necessary to establish a comprehensive anti-drug program at this time." 53 Fed.Reg. 47025.
4

Larry Mann, Washington, D.C., for the Transp.-Communications Intern. Union.

Lee Seham, Seham, Klein & Zelman, New York City, Law Offices of Thornton C. Bunch, Jr., San
Francisco, Cal., for Richard S. Linn.
Stewart Weinberg, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., David J.
Aronofsky, Arent Fox, Kintner, Plotkin & Kahn, Washington, D.C., William Jolley, Jolley, Walsh, Hager
& Gordon, Kansas City, Mo., for Sheri Albert, Charles McCune, Independent Federation of Flight
Attendants.
Michael Gottesman, George Cohen, and Mady Gilson, Bredhoff & Kaiser, Washington, D.C., for the
Ass'n of Professional Flight Attendants and Independent Union of Flight Attendants.
Diane Liff, Gen. Counsel's Office, Dept. of Transp., Robert V. Zener and Leonard Schaitman, Dept.
of Justice, Civ. Div., Washington, D.C., Kenneth W. Starr, Sol. Gen., Washington, D.C., for
respondents.

The regulations adopted by the FAA require employee drug testing to be performed by every Part
121 and 135 certificate holder (generally, commercial air carriers, both scheduled and unscheduled,
carrying passengers or cargo1), as well as each air traffic control facility.2 53 Fed.Reg. 47057-58
(App. I--definition of "employer"). The following employees must be tested: (a) flight crew members;
(b) flight attendants; (c) flight instructors or ground instructors; (d) flight testing personnel; (e) aircraft
dispatchers; (f) maintenance personnel; (g) aviation security or screening personnel; and (h) air
traffic controllers. 53 Fed.Reg. 47058 (App. I Sec. III). Tests must be performed for marijuana,
cocaine, opiates, phencyclidine (PCP) and amphetamines. Id., Sec. IV.
5
The regulations require testing of these employees on a random basis. Id., Sec. V.C. To eliminate
any supervisory discretion in selecting the employees to be tested and to avoid "potential bias
toward and selective harassment of an employee," 53 Fed.Reg. at 8375, selection of employees to
be tested must be made "using a random number table or a computer-based number generator that
is matched with an employee's social security number, payroll identification number, or any other

alternative method approved by the FAA." 53 Fed.Reg. 47058, Sec. V.C. After the first year of
testing, employers must conduct random tests at an annualized rate of not less than 50 percent of
the employees performing the functions listed. Id., Sec. V.C. (c)(2).3
6
The procedures under which the testing is to be done are described in Procedures for Transportation
Workplace Drug Testing Program, 53 Fed.Reg. 47002 (Nov. 21, 1988); see also 53 Fed.Reg. 4705661, and closely follow the HHS drug-testing procedures for government employees set forth at 53
Fed.Reg. 11,970 (April 11, 1988). Upon arriving at the "collection site," the employee must present
photographic identification or be identified by a representative of the employer, and must remove any
outer garments, such as a coat or jacket. The employee may choose to provide the required urine
specimen in a stall or otherwise partitioned area. The toilet water is to be tinted with a blue dye to
prevent use of that water to adulterate the specimen, and a monitor of the same gender as the
employee must remain in the area, but outside the stall. After receiving the specimen, the monitor
must inspect it to ensure that it is of proper volume, temperature, and color. The monitor must then
arrange, following specified chain-of-custody procedures, to ship the specimen to an HHS-certified
drug testing laboratory.
7
The laboratory to which the specimen is sent must perform an immunoassay test. If the specimen
tests positive, the test must be confirmed using gas chromatography/mass spectrometry techniques.
If the initial positive test is confirmed, the employer's Medical Review Officer (who must be a
qualified physician) determines whether there is an "alternative medical explanation" and in that
connection must provide the employee with an opportunity to discuss the result and submit any
medical records regarding legally prescribed medication. The employee may also demand a retest of
the original specimen at the original laboratory or another HHS-certified laboratory. 4 In addition, there
is an absolute prohibition against the release of drug test results to third parties without the specific,
written consent of the employee.
8
Employees who test positive for prohibited drugs and are unable to offer a satisfactory alternative
explanation must be removed from their positions, and may not return to duty except upon the
recommendation of a Medical Review Officer or the Federal Air Surgeon.
9
Petitioners in this case include employees engaged in various occupations within the commercial
aviation industry who are subject to the FAA drug-testing rules, the principal labor organizations in
the industry, and an organization of aviation employees and employers. Following the FAA's
issuance of the rules, timely petitions for review were filed in this Circuit, the Fifth Circuit, and the
D.C. Circuit. Those petitions were then consolidated in this proceeding. We have jurisdiction under
49 U.S.C.App. Sec. 1486.
10
Petitioners' primary contention is that the drug tests required by the FAA are unreasonable searches
in violation of the Fourth Amendment. Our disposition of this issue is guided by the Supreme Court's
decisions in National Treasury Employees Union v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103

L.Ed.2d 685 (1989), and Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602, 109 S.Ct. 1402,
103 L.Ed.2d 639 (1989). In Von Raab, the Court upheld a United States Customs Service
requirement that employees seeking transfers or promotions to certain positions undergo urinalysis.
In Skinner, the Court upheld a Federal Railroad Administration program requiring railroads to
administer blood and urine tests to train workers involved in major railroad accidents, and permitting
railroads to administer breath and urine tests to employees who violate certain safety rules.
11
Von Raab and Skinner settle some of the threshold questions in this case. First, drug testing
performed by private employers under compulsion of government regulations constitutes
governmental action subject to constitutional restrictions. See Skinner, 109 S.Ct. at 1411-12.
Second, because "it is clear that the collection and testing of urine intrudes upon expectations of
privacy that society has long recognized as reasonable," urinalysis "must be deemed [a] search [ ]
under the Fourth Amendment." Skinner, 109 S.Ct. at 1413; accord Von Raab, 109 S.Ct. at 1390.
Third, the usual Fourth Amendment requirements of a warrant and probable cause do not
necessarily apply in the drug testing context. Rather, when a search "serves special governmental
needs, beyond the normal need for law enforcement, it is necessary to balance the individual's
privacy expectations against the Government's interests to determine whether it is impractical to
require a warrant or some level of individualized suspicion in the particular context." Von Raab, 109
S.Ct. at 1390.
12
In the present case it is clear that the FAA drug testing requirements serve "special needs, beyond
the normal need for law enforcement" within the meaning of Von Raab. As in Von Raab, the FAA
rules specify that "[t]est results may not be used in a criminal prosecution of the employee without
the employee's consent." Id. Moreover, just as the Customs Service testing program in Von Raab
was designed "to deter drug use among those eligible for promotion to sensitive positions ... and to
prevent the promotion of drug users to those positions," id., so is the FAA's program designed to
deter drug use among employees in safety-sensitive positions and to prevent the performance of
safety-sensitive functions by employees under the influence of narcotics. We must therefore
determine the constitutionality of the FAA program by balancing the government's interests against
the employees' privacy interests.
13
In striking this balance, we take our primary guidance from Von Raab, because we think that the
random testing at issue in this case is more closely analogous to the facts of Von Raab than to those
of Skinner. In Von Raab, as in this case, the testing program did not require any level of
individualized suspicion or the occurrence of any suspicion-triggering event; in Skinner, on the other
hand, testing was limited to those employees involved in a train accident or safety rule violation.
Accordingly, we proceed to consider whether this case can be distinguished from Von Raab in a way
that would tip the balance against the constitutionality of the FAA's drug testing program.
14
In Von Raab, the Customs Service initiated a program of testing employees for drugs as a condition
of employment in positions that met any one of three criteria: (1) direct involvement in drug
interdiction or enforcement of related laws; (2) a requirement that the incumbent carry a firearm; or
(3) a requirement that the incumbent handle "classified" material. See id. at 1388. The drug tests

followed procedures quite similar to the FAA procedures at issue in this case. See id. at 1388-89,
1394 n. 2. A union of federal employees challenged the program as violative of the Fourth
Amendment. The Supreme Court upheld the testing program as applied to the first two categories of
employees listed above, and remanded as to the third category (employees handling classified
information).

only 5 employees of 3,600 tested positive for drugs. Id. at 1394. As discussed earlier, the Supreme
Court rejected the argument that this evidence was insufficient to establish a substantial
governmental need, because of the deterrent purposes of the program and the potential for serious
harm. Id. at 1395.
21

15
After concluding that the testing program invaded reasonable expectations of privacy and that the
tests were motivated by special needs other than law enforcement, the Court balanced the private
and governmental interests at stake, and decided that the balance justified the testing program. The
Court reasoned that
16
[t]he Government's compelling interests in preventing the promotion of drug users to positions where
they might endanger the integrity of the Nation's borders or the life of the citizenry outweigh the
privacy interests of those who seek promotion to these positions, who enjoy a diminished
expectation of privacy by virtue of the special, and obvious, physical and ethical demands of those
positions.
17
Id. at 1397-98.5
18
In reaching this conclusion, the Court rejected the petitioners' contention that there was insufficient
evidence of a drug problem in the Customs Service to justify suspicionless testing. The Court noted
that drug abuse is a pervasive social problem, and stressed that the testing program was aimed as
much at deterrence as at detection. "In light of the extraordinary safety and national security hazards
that would attend the promotion of drug users to positions that require the carrying of firearms or the
interdiction of controlled substances," the Court wrote, "the Service's policy of deterring drug users
from seeking such promotions cannot be deemed unreasonable." Id. at 1395.
19
The government interest in preventing drug use by persons holding safety-sensitive positions in the
aviation industry is at least as compelling as the interest in preventing drug use by Customs officers.
Indeed, petitioners concede that "the government has a strong interest in assuring aviation safety
and that the drug-related job-impairment of any safety-sensitive aviation employee is a basis for the
most serious concern." Reply Brief of Petitioners at 15-16. Nonetheless, petitioners argue that the
FAA has failed to demonstrate a sufficiently high level of drug use in the industry to justify its testing
program.

In the present case, the FAA administrative record included evidence that a number of pilots and
other airline crew members had received treatment for cocaine overdoses or addiction; that tests by
companies in the industry had turned up instances of drug use by pilots and mechanics; and that
drugs were present in the bodies of pilots in two airplane crashes. 6 Moreover, the harm that can be
caused by an airplane crash is surely no less than the harm that might be caused by drug
impairment in the course of Customs Service employment. When viewed in this light, the need for
the FAA's testing program equals, if not exceeds, that for the Customs Service program approved in
Von Raab.
22
Petitioners also argue that the FAA testing program intrudes more deeply on privacy interests than
the program approved in Von Raab. 7 They point to the fact that the FAA provides for unannounced
(i.e., immediate) testing, while the Customs Service program requires at least five days' notice; and
that the FAA program is random, while the Customs Service program is only activated by certain
events (i.e., applying for certain positions).
23
Although these factors add some weight to the "invasion of privacy" side of the Fourth Amendment
balance, they are insufficient to tip the scales against the FAA drug testing program at issue here.
The reasoning of the D.C. Circuit in Harmon v. Thornburgh, 878 F.2d 484 (D.C.Cir.1989), is
instructive. In Harmon, the court upheld (as to some employees) a Justice Department testing plan
that provided for random testing and notice "on the same day, preferably within two hours, of the
scheduled testing." 878 F.2d at 486 (interior quotation omitted). The court noted:
24
Certainly the random nature of the OBD testing plan is a relevant consideration; and, in a particularly
close case, it is possible that this factor would tip the scales. We do not believe, however, that this
aspect of the program requires us to undertake a fundamentally different analysis from that pursued
by the Supreme Court in Von Raab.
25
Id. at 489. This is particularly true in light of the FAA's reasonable conclusion that random testing
without advance notice will prove to be a greater deterrent than testing with advance notice.8

20

26

In our view, the evidence relied upon by the FAA is stronger than the evidence relied upon by the
Customs Service in Von Raab. In Von Raab, the Service's testing scheme was not implemented in
response to any perceived drug problem among Service employees, and there was evidence that

Finally, petitioners argue that the FAA plan grants employers too much discretion. This argument is
unpersuasive. First, the strict randomness requirements ensure that no employer will have discretion
in deciding which employees should be searched. Second, employers' discretion as to how to

structure their testing programs will be limited by collective bargaining and the requirement that the
FAA approve the plans of individual employers.9
27
In sum, we conclude that the Fourth Amendment issue in this case cannot be meaningfully
distinguished from the Fourth Amendment issue addressed by the Supreme Court in Von Raab. We
therefore reject petitioners' constitutional challenge to the FAA drug testing program.
28
Petitioners argue that the FAA failed to offer a satisfactory explanation for its decision, and that the
decision was therefore arbitrary and capricious in violation of the Administrative Procedure Act, 5
U.S.C. Sec. 706(2)(A). See Motor Vehicle Mfrs. Ass'n v. State Farm Mutual Ins. Co., 463 U.S. 29, 43,
103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983) (agency must articulate a satisfactory explanation for
its action). In particular, petitioners question the FAA's decision to reject the recommendation of the
National Transportation Safety Board that the FAA rely on non-random forms of drug testing.
29
This argument is without merit. The FAA, contrary to petitioners' contention, explained specifically
why it chose to require random testing, reasoning that there was more evidence supporting the
efficacy of random testing programs than of non-random programs. See 53 Fed.Reg. 47034, 47035,
47048. Its decision that safety concerns outweighed privacy concerns in this context was a
reasonable, if controversial, decision, and cannot be overturned as arbitrary and capricious.
30
Petitioners also argue that the FAA's decision to include flight attendants within the testing
requirements is inconsistent with prior FAA decisions denying petitions of flight attendants to
establish safety rules limiting their on-duty time. The duty time decisions, however, do not stand for
the proposition that impairment of flight attendants' performance is never a public safety
consideration. Rather, the FAA concluded that, on the evidence before it, there was no correlation
between flight attendant duty time and risk to passengers. We see no conflict between the duty time
decisions and the inclusion of flight attendants in the drug testing program. 10 Accordingly, we hold
that the FAA acted within its authority in requiring random drug testing of flight attendants.
31
For the foregoing reasons, we affirm the decision of the Federal Aviation Administration.

INTERNATIONAL BROTHERHOOD OF TEAMSTERS, CHAUFFEURS, WESTERN

CONFERENCE OF TEAMSTERS, Petitioner,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.
AMALGAMATED TRANSIT UNION, etc., et al., Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.
RAILWAY LABOR EXECUTIVES' ASSOCIATION; United Transportation Union, Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.
RAILWAY LABOR EXECUTIVES' ASSOCIATION; Brotherhood of Maintenance of Way
Employees, etc., et al., Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, Respondent.
The OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION ("OCAWIU"), and
Locals 1-219, 1-128 and 1-5, et al., Petitioners,
v.
DEPARTMENT OF TRANSPORTATION, NATIONAL TRANSPORTATION SAFETY BOARD, et al.,
Respondents.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted December 11, 1989.
Decided April 26, 1991.
As Amended May 9, 1991.
Lawrence A. Mann, Alper & Mann, Washington, D.C., for petitioners.
W. David Holsberry, Davis, Cowell & Bowe, San Francisco, Cal., for petitioner, Railway Labor
Executives' Ass'n.
Gary Witlin, Intern. Broth. of Teamsters, Washington, D.C., for petitioner, Teamsters.
Thomas A. Feldman, McKendree, Toll & Mares, Denver, Colo., for petitioners, Oil, Chemical,
and Atomic Workers Int'l Union, et al. in No. 89-70248.
Michael B. Roger, Van Bourg, Weinberg, Roger & Rosenfeld, San Francisco, Cal., for
petitioners, Intern. Broth. of Teamsters.
Bruce R. Lerner, Bredhoff & Kaiser, Washington, D.C., Stephen P. Berzon, Altshuler, Berzon,
Nussbaum, Berzon & Rubin, San Francisco, Cal., for petitioners, Amalgamated Transit Union,
et al. in No. 89-70166.
Robert Zener, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondents.
Robert A. Naeve, Sheppard, Mullin, Richter & Hampton, Newport Beach, Cal., for amici curiae,
Atlantic Richfield Co. and Merchants & Mfrs. Ass'n.
Jeffrey W. King, Collier, Shannon & Scott, Washington, D.C., for amicus curiae, OwnerOperators Independent Drivers Ass'n of America, Inc. and Michael York.
Before TANG, SKOPIL and FLETCHER, Circuit Judges.
TANG, Circuit Judge:
INTRODUCTION
In this consolidated case, the International Brotherhood of Teamsters, Amalgamated Transit Union,
Railway Labor Executives' Association, and Oil, Chemical, and Atomic Workers Union (collectively,
"the Unions") petition for review of an order issued by the Federal Highway Administration of the
Department of Transportation ("FHWA") mandating various forms of drug testing for commercial
motor vehicle operators. The Unions argue that the planned implementation of random, preemployment, post-accident, and biennial drug testing violates the drivers' fourth amendment right

against unreasonable searches. The Unions also contend that the FHWA acted arbitrarily and
capriciously in promulgating the regulations. We hold that these regulations do not run afoul of the
fourth amendment. Neither was the FHWA's decision to promulgate the regulations arbitrary or
capricious. Accordingly, we deny the petition for review.
BACKGROUND
A. THE TESTING PROGRAM
On June 14, 1988, the FHWA published a notice of proposed rulemaking, in which it proposed that
certain commercial drivers be tested for the use of controlled substances. 53 Fed.Reg. 22,268
(1988). Over the ensuing months, the FHWA received approximately 145 comments concerning the
proposed drug testing program. 53 Fed.Reg. 47,134, 47,136 (1988). Additionally, 43 persons and
organizations testified at four public hearings conducted by the FHWA. Id.

The regulations prescribe the institution of drug tests in six different instances. First, drivers must
submit to random testing. 49 C.F.R. 391.109. The random selection of drivers to be tested must be
done "in a scientifically acceptable manner." 53 Fed.Reg. 47,134, 47,137. Random tests must be
conducted at a rate at least equal to fifty percent of the eligible drivers per year. 49 C.F.R.
391.109.1
Second, the regulations require biennial testing of drivers. 49 C.F.R. 391.105. Carriers are
instructed to conduct the first test in conjunction with the routine medical examinations of their
drivers. 49 C.F.R. 391.105(a). The regulations permit employers to cease biennial testing once
they have fully implemented their random drug testing programs. 49 C.F.R. 391.105(c).
Third, motor carriers must conduct pre-employment drug tests. 49 C.F.R. 391.103. Testing is
limited to driver-applicants whom the carrier intends to hire. 49 C.F.R. 391.103(a).

On November 21, 1988, the FHWA published its final drug testing regulations. 53 Fed.Reg. at
47,151 (1988) (codified at 49 C.F.R. 391.81-391.123 (1989)). The announced purpose of the
testing program was "[t]o detect and deter the use of drugs by bus and truck drivers." 53 Fed.Reg. at
47,135. The FHWA reasoned that:

Fourth, drivers involved in "reportable accident[s]" must arrange to take a drug test within thirty-two
hours of the incident. 49 C.F.R. 391.113. The regulations consider an accident "reportable" if it
involves (1) a fatality, (2) an injury demanding immediate medical treatment away from the scene of
the accident, or (3) at least $4,400 in property damage. 49 C.F.R. 394.3.

Drug testing and sanctions for use will help discourage substance use and reduce absenteeism,
accidents, health care costs, and other drug-related problems. It will act as a deterrent to those
individuals who might be tempted to try drugs for the first time or who currently use drugs. Finally,
drug testing will protect the health and safety of the employees of motor carriers and other users of
the highway system through the early identification and referral for treatment of workers with drug
use problems.

Fifth, the regulations require testing when the employer has cause to believe that a driver is using a
controlled substance. 49 C.F.R. 391.99. The conduct inspiring the reasonable suspicion must have
been witnessed by at least one supervisor trained in the detection of probable drug use. 49 C.F.R.
391.99(c).

Id.
While recognizing drivers' privacy concerns about the program, the FHWA concludedthat "the clear
public interest in assuring that commercial motor vehicle drivers perform their duties free of
prohibited substances" outweighed the intrusion on drivers' expectations of privacy. Id. at 47,137.
The FHWA conceded from the outset that data documenting actual drug use by commercial drivers
and its role in highway accidents were scarce. 53 Fed.Reg. 22,268, 22,270. The FHWA attributed
this dearth of evidence, at least in part, to the fact that commercial drivers generally work without
supervision and that epidemiological studies of accident causes were in their nascency. 53 Fed.Reg.
at 22,269. Hearings on the proposed regulations produced testimonial evidence and empirical
studies corroborating the existence of a drug problem among commercial drivers, but left
undetermined the extent of the problem. The FHWA felt, nonetheless, that the combination of
evidence adduced at the hearings and the pervasiveness of drug abuse in society in general justified
the promulgation of the drug testing regulations. 53 Fed.Reg. at 47,137.
The regulations require all interstate motor carriers to implement drug testing programs for drivers
operating vehicles (i) weighing more than 26,000 pounds, (ii) carrying fifteen or more passengers, or
(iii) transporting hazardous materials. 49 C.F.R. 391.85. The carriers must test all employee drivers
and all contract drivers who are under contract with them for ninety or more days a year. The FHWA
estimated that the regulations would affect 200,000 motor carriers and three million drivers. 53
Fed.Reg. 47,149.

Sixth, drivers who test positive for drug use must submit to follow-up testing for up to five years after
their return to work. 49 C.F.R. 391.123.
The Unions do not challenge the propriety of the latter two drug testing programs (reasonable
suspicion and follow-up). They confine their petitions to attacking the validity of the random, biennial,
pre-employment, and post-accident testing schemes.
B. DRUG TESTING PROCEDURES
The regulations incorporate the Department of Transportation's procedures for conducting drug
tests. 49 C.F.R. 391.81(b)-391.123 (incorporating in various sections the procedures set out at 49
C.F.R. 40.1-40.41). As a result, the drug testingcollection site must be properly secured and must
provide a private enclosure within which urination can occur. Direct observation of urination is
allowed only in narrowly defined circumstances where the monitor may reasonably suspect the
integrity of the specimen.2 49 C.F.R. 40.25(e). The collection procedure must be supervised by
either a licensed medical professional or an individual specifically trained in specimen collection
procedures. 49 C.F.R. 40.23(d). Strict collection and chain of custody procedures must be
followed. 49 C.F.R. 40.23, 40.25(f).
The regulations likewise prescribe the qualifications and testing procedures to be followed by
laboratory personnel in analyzing the specimens. 49 C.F.R. 40.27, 40.29, 40.31, 40.33.

Employers may only use laboratories certified under the Department of Health and Human Services'
Mandatory Guidelines for Federal Workplace Drug Testing Programs. 49 C.F.R. 40.39.
The laboratories initially perform an immunoassay test on the specimen. 49 C.F.R. 40.29(e). All
positive readings must then be confirmed through use of gas chromatography/mass spectrometry
techniques. 49 C.F.R. 40.29(f).
Positive results of drug tests are reported first to the employer's designated Medical Review Officer
("MRO"). 49 C.F.R. 40.33(a). The MRO must be a licensed physician with knowledge of substance
abuse disorders. 49 C.F.R. 40.33(b). Prior to disclosing the result to the employer, the MRO must
investigate alternative explanations for the positive result and must provide the employee an
opportunity to explain the result. 49 C.F.R. 40.33(b) & (c). If the positive reading is attributable to
legitimate medical treatment, the MRO shall report the test result to the employer as negative. 49
C.F.R. 40.33(f). Similarly, if the MRO determines the result is scientifically insufficient or unreliable,
the test result shall be reported as negative. 49 C.F.R. 40.33(g).
The regulations oblige laboratories to treat employee test records confidentially. 49 C.F.R. 40.35.
The MRO may not release test results to anyone, other than the employer, absent the written
consent of the employee. 49 C.F.R. 391.89.
Finally, each employer must establish, in conjunction with the implementation of drug testing, an
Employee Assistance Program ("EAP"). 49 C.F.R. 391.119. The EAPs are designed to promote
safety and reduce drug use in the motor carrier industry. 53 Fed.Reg. 47,134, 47,154 (1988). The
EAP must, at a minimum, include educational information and training for drivers and supervisory
personnel about controlled substances. 49 C.F.R. 391.119. Such information must include advice
about the effects of controlled substance use on personal health, safety, and the work environment,
and about recognizing behavioral manifestations of controlled substance use or abuse. 49 C.F.R.
391.121.

Five suits challenging the validity of the regulations are before us today. In two of these cases, the
International Brotherhood of Teamsters and the Amalgamated Transit Union agreed that the district
court lacked jurisdiction to hear their petitions for review. A stipulated order transferring the case to
this court was entered, pursuant to 28 U.S.C. 1631 (1988). However, the district court included in
the order the statement: "this court not having determined the issue of jurisdiction or expressing its
opinion by approval of this Order." Amalgamated Transit Union v. Skinner, No. C-89-0081-MHP
(N.D.Cal. April 6, 1989) (order transferring cases). The two suits filed by the Railway Labor
Executives' Association likewise were transferred to this court, at the Association's request, under 28
U.S.C. 1631. In the final case, the Oil, Chemical, and Atomic Workers Union ("OCAW") opposed a
transfer to this court. There the district court ruled that it lacked jurisdiction and transferred the case
here, again pursuant to 28 U.S.C. 1631. These five cases were subsequently consolidated.
The district court in Owner-Operators reached a contrary result, concluding that it did have
jurisdiction to hear the case and thus declining to transfer it to this court. The court did, however,
certify its jurisdictional ruling for interlocutory appeal. On October 17, 1989, we granted the petition
for interlocutory appeal.
JURISDICTION
We hold today, in Owner-Operators Indep. Drivers Ass'n v. Skinner, 931 F.2d 582 (9th Cir.1991), that
courts of appeals have exclusive jurisdiction to hear petitions for review of final agency orders and
regulations issued by the FHWA.
In its amicus brief filed in this case, Owner-Operators contends that we lack jurisdiction in four of
these cases because the district courts did not expressly predicate their section 1631 case transfers
on a finding of "want of jurisdiction."3 Owner-Operators urges us to remand these cases to the
district courts without reaching the merits of the constitutional and Administrative Procedure Act
claims. We decline to do so.

C. PROCEDURAL HISTORY

Under 28 U.S.C. 1631,

Following promulgation of the regulations, the Unions filed a number of suits in the United States
District Court for the Northern District of California challenging the validity of the regulations. In one
of the cases, the district court granted a preliminary injunction staying the implementation of random
and post-accident drug testing pending a determination of their constitutionality and the FHWA's
compliance with the dictates of the Administrative Procedure Act. Owner-Operators Indep. Drivers
Ass'n v. Burnley, 705 F.Supp. 481(N.D.Cal.1989). In issuing the injunction, the district court held that
"the regulations providing for random drug testing and indiscriminate post-accident drug testing lack
the particularized, reliable findings aboutdrug use or impairment in the industry necessary to justify
the intrusiveness of the search." Id. at 485 (footnote omitted).

[w]henever a civil action is filed in a court as defined in section 610 of this title or an appeal,
including a petition for review of administrative action, is noticed for or filed with such a court and
that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice,
transfer such action or appeal to any other such court in which the action or appeal could have been
brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had been
filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in
or noticed for the court from which it is transferred.

On November 6, 1989, the FHWA announced that, in light of the injunction issued in OwnerOperators,implementation of random and post-accident drug testing would be deferred until further
notice. 54 Fed.Reg. 46,616. The FHWA noted that, if the injunction were dissolved on appeal, new
implementation dates for random and post-accident testing would be promulgated. Id. at 46,617. As
to the remaining types of testing, the original implementation dates remained in effect. Id.

Congress enacted section 1631 for the express purpose of eliminating the "unnecessary risk that a
litigant may find himself without a remedy because of a lawyer's error or a technicality of procedure."
S.Rep. No. 275, 97th Cong., 2d Sess. 11, reprinted in 1982 U.S.Code Cong. & Admin.News 11, 21.
Remanding four of these five cases would be both futile and contrary to the purpose of section 1631.
First, we have uncontested authority to rule upon the petition for review filed in the case brought by
OCAW. In that case, the district court explicitly found that it lacked jurisdiction prior to transferring the
case under section 1631. The OCAW petition encompasses all of the constitutional and

Administrative Procedure Act issues presented in the other four petitions. In deciding OCAW's case,
we necessarily dispose of the other four petitions as well. Remanding so that the district court may
enter a predetermined ruling on jurisdiction and then transfer the case back to us so that we might
enter a preordained ruling on the merits would be an exercise in futility and a waste of judicial
resources.

Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 1390, 103 L.Ed.2d 685
(1989); Bluestein, 908 F.2d at 455. Testing conducted by private employers under compulsion of
governmental regulations amounts to governmental action subject to the fourth amendment's
restrictions. Railway Labor, 489 U.S. at 614-16, 109 S.Ct. at 1411-12; Bluestein, 908 F.2d at 455.
A. THE APPLICABILITY OF THE WARRANT REQUIREMENT

Second, this court has previously declined to saddle section 1631 with the straitened interpretation
proffered by Owner-Operators. See, e.g., Harris v. McCauley (In Re McCauley), 814 F.2d 1350,
1352 (9th Cir.1987) ("It would be a curious procedure to remand this case to the district court so that
the district judge could decide whether or not to officially transfer it back to us."). Congress intended
section 1631 to promote the "interest[s] of justice." Jurisdictional substance, rather than procedural
niceties or magic words, governs the propriety of transfers under section 1631. In the four cases at
issue, the district courts all refused to address the merits of the petitions and voluntarily transferred
the cases to this court. The district courts did not, in fact, have jurisdiction over those cases. This
court alone is empowered to hear them. We thus accepted the transfers. In the end, the petitions are
in their proper forum and none of the jurisdictional boundaries prescribed by Congress has been
transgressed. No purpose would be served by remand. Rather than engage in a game of
"jurisdictional badminton,"4 we hold that, in the interest of justice, we have jurisdiction to hear all five
petitions. Accord Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 837, 109 S.Ct. 2218, 2225,
104 L.Ed.2d 893 (1989) (a litigant "should not be compelled to jump through ... judicial hoops merely
for the sake of hypertechnical jurisdictional purity").
STANDARD OF REVIEW
We review the constitutionality of agency drug testing regulations de novo. See Bluestein v.
Skinner, 908 F.2d 451, 454 (9th Cir.1990), cert. denied, ___ U.S. ___, 111 S.Ct. 954, 112 L.Ed.2d
1042 (1991). Because the Unions have challenged the regulations on their face, rather than as
applied, we decide only the narrow question of whether these drug tests "can ever be conducted"
without offending the fourth amendment.Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602,
632-33 n. 10, 109 S.Ct. 1402, 1421 n. 10, 103 L.Ed.2d 639 (1989). "The challenge[] must establish
that no set of circumstances exists under which the [regulations] would be valid." United States v.
Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987).
We will find the agency's decision to enact these regulations to be arbitrary and capricious only if the
agency failed to consider relevant factors and has made a clear error in judgment. Sierra Pac. Indus.
v. Lyng, 866 F.2d 1099, 1105 (9th Cir.1989). The FHWA must carefully explain its reasons for the
regulations and the regulations themselves must be reasonable. International Bhd. of Elec. Workers,
Local 1245 v. Skinner, 913 F.2d 1454, 1457 (9th Cir.1990). A reasonable, albeit controversial,
decision may not be overturned as arbitrary and capricious. Bluestein, 908 F.2d at 457.

We have recognized that the fourth amendment's warrant requirement will not necessarily apply in
the drug testing context. Bluestein, 908 F.2d at 455; see also Treasury Employees, 489 U.S. at 66567, 109 S.Ct. at 1390.
[W]here a Fourth Amendment intrusion serves special governmental needs, beyond the normal need
for law enforcement, it is necessary to balance the individual's privacy expectations against the
Government's interests to determine whether it is impractical to require a warrant or some level of
individualized suspicion in the particular context.
Bluestein, 908 F.2d at 455 (quoting Treasury Employees, 489 U.S. at 665-66, 109 S.Ct. at 1390).
In the present case, the drug-testing program does promote "special governmental needs, beyond
the normal need for law enforcement." Here, as in Railway Labor, Treasury
Employees, and Bluestein, the agency implemented drug testing regulations to promote public
safety and to deter drug use (with all of its concomitant costs) in the workplace. The FHWA
emphasized, in enacting these regulations, that its aim was "to detect and deter the use of drugs by
bus and truck drivers" and "to ensure a drug-free transportation environment which, in turn, will
reduce accidents and casualties in motor carrier operations." 53 Fed.Reg. at 47,135.
The regulations, moreover, preclude the tests' use for law enforcement purposes by protecting the
confidentiality of test results. Only the employer and the MRO learn of positive readings. The
regulations strictly proscribe the disclosure of test results to third persons, such as law enforcement
personnel, absent the consent of the driver. 49 C.F.R. 391.89. See Treasury Employees, 489 U.S.
at 666, 109 S.Ct. at 1391; Bluestein, 908 F.2d at 455.
We must therefore determine whether a warrant is constitutionally required by balancing the drivers'
privacy expectations against the government's interests. Previous drug-testing decisions advise that
this balance weighs heavily against a warrant requirement. First, motor carrier officials, like the
supervisors in Railway Labor, have little if any practical experience in the intricate processes of
criminal investigation or warrant applications. Railway Labor, 489 U.S. at 623-24, 109 S.Ct. at 141617. "`Imposing unwieldy warrant procedures ... upon supervisors, who would otherwise have no
reason to be familiar with such procedures, is simply unreasonable.'" Id. (quoting O'Connor v.
Ortega, 480 U.S. 709, 722, 107 S.Ct. 1492, 1500, 94 L.Ed.2d 714 (1987) (plurality)).

DISCUSSION
I. THE CONSTITUTIONALITY OF THE REGULATIONS
Precedent dictates much of the framework for our analysis. It is nowestablished beyond
peradventure that drug tests constitute searches within the meaning of the fourth
amendment. Railway Labor, 489 U.S. at 617, 109 S.Ct. at 1413; National Treasury Employees

Second, the standardized nature of these tests and the minimal discretion afforded the
administrators further undercut the need for a warrant in these circumstances. The regulations
rigorously define how the tests are to be administered and carefully delimit the extent of the intrusion
on individual privacy. The regulations also stipulate how drivers are to be selected for testing. With
respect to preemployment, post-accident, and biennial drug testing, the drivers are selected by

objectively discernible triggering events (a job application, accident, and passage of a preestablished
period of time, respectively). The test administrators thus have no discretion over whom to test and
when. Requiring a warrant for these tests thus would offer employees little additional protection
because, given the "standardized nature of the tests and the minimal discretion vested in those
charged with administering the program, there are virtually no facts for a neutralmagistrate to
evaluate." Railway Labor, 489 U.S. at 622, 109 S.Ct. at 1415-16.
With respect to random testing, administrators concededly have somewhat more control over the
timing of the tests. But they have no authority to determine which employees will be tested.
According to the regulations, the selection must be made in a scientifically acceptable random
manner. Administrators thus have no discretion to target individual employees for excessive testing.
The Unions raise the specter of excessively frequent or ill-timed administration of the drug tests. We
are, however, confined to reviewing the facial validity of these regulations. We thus inquire only
whether random testing could be administered constitutionally. Railway Labor, 489 U.S. at 632-33 n.
10, 109 S.Ct. at 1421 n. 10. On their face, the regulations permit random testing at a rate of
approximately one test per driver every two years. We cannot say that the limited discretion
permitted employers to decide the timing of the tests means that they could never be administered
constitutionally. Indeed, we have already held that random drug tests may proceed without a
warrant. Bluestein, 908 F.2d at 457. There will be time enough, if and when the case presents itself,
to determine the constitutionality of these regulations in light of a particular employer's abuses.
In sum, we hold that the fourth amendment does not mandate that motor carriers obtain a warrant
prior to the administration of the drug tests ordered by the FHWA.
B. RANDOM DRUG TESTING
Determining that no warrant is necessary to conduct these drug tests is only the first step in our
inquiry into the constitutionality of these regulations, however. The drug tests at issue are conducted
without either probable cause or individualized suspicion. While a search must ordinarily be based
on probable cause, in certain circumstances the government's interest "is sufficiently compelling to
justify the intrusion on privacy entailed by conducting such searches without any measure of
individualized suspicion." Treasury Employees, 489 U.S. at 668, 109 S.Ct. at 1392. We find that
such circumstances exist in this case.
1. INTRUSION ON PRIVACY
The act of urination required to collect the drivers' drug-testing specimen is an activity "traditionally
shielded by great privacy." Railway Labor, 489 U.S. at 626, 109 S.Ct. at 1418. But the inquiry we
undertake here asks not whether a particular search constitutes, in the abstract or in general, a
substantial intrusion on personal privacy. Rather, we must assess the incremental decrease in
privacy caused by the search relative to the existing privacy expectations of the drivers. See Railway
Labor, 489 U.S. at 624-25, 109 S.Ct. at 1416-17 (privacy expectations defined in terms of "additional
interference" on top of existing restrictions on employees); Treasury Employees, 489 U.S. at 671-72,
109 S.Ct. at 1393.

The privacy expectations of commercial truck drivers are markedly less than those of the public in
general. The trucking industry is highly regulated and drivers have long been subjected to federal
regulation of their qualifications. See, e.g., 49 U.S.C. 3102(b) (authorizing Secretary of
Transportation to prescribe qualifications of drivers in order to promote safety in the motor carrier
industry); 49 C.F.R. 391.41 (regulating physical condition of drivers).
The regulation of drivers' qualifications already includes subjecting them to comprehensive biennial
physical examinations. 49 C.F.R. 391.43. The scope of the examination prescribed by the
regulations. These examinations include urinalysis to detect infections of the genito-urinary tract, a
history of luetic infection, or latent syphilis.5 Drivers also must take roadtests and written
examinations. 49 C.F.R. 391.31-391-37. Drivers' hours of service are strictly regulated in order to
prevent fatigue. 49 C.F.R. 395.3.
Accordingly, the intrusiveness of these drug-testing regulations, on their face, must be measured
against the impositions on drivers' privacy already worked by the nature of their job and its attendant
regulations. Indeed, drivers must maintain logs documenting when they are off-duty or in their
sleeper berths. 49 C.F.R. 395.8. In Treasury Employees, the Supreme Court specifically noted that
employees' privacy expectations necessarily would be lowered if their positions already entailed
"background investigations, medical examinations, or other [such] intrusions." Treasury
Employees, 489 U.S. at 677, 109 S.Ct. at 1396; see also National Fed'n of Fed. Employees v.
Cheney, 884 F.2d 603, 612-13 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 864, 107
L.Ed.2d 948 (1990) (privacy expectations of security guards reduced because they are already
subjected to extensive medical examinations and background checks);Thomson v. Marsh, 884 F.2d
113, 115 (4th Cir.1989) (employees at chemical plant enjoy reduced privacy expectations vis-avis drug testing because they are already subject to annual physicals that include urine
testing); Schaill by Kross v. Tippecanoe County School Corp., 864 F.2d 1309, 1318 (7th Cir.1988)
(drug testing of student athletes upheld, in part, because privacy expectations were reduced due to
the fact that athletes already had to provide urine samples in the course of their routine physical
examinations).
On the face of the regulations, motor carriers may limit their random drug tests so that they are, on
average, no more frequent than the biennial exams. See 49 C.F.R. 391.93(d) (random testing may
be at a rate of fifty percent per year). The design of the regulations, moreover, limits the intrusion on
privacy as much as practicable by permitting unobserved urination, requiring that monitors be trained
in specimen collection, and treating test results confidentially. We note that the testing procedures
adopted by the FHWA closely track the procedures sanctioned by the Supreme Court in Treasury
Employees, 489 U.S. at 672-73 n. 2, 109 S.Ct. at 1394 n. 2. In light of the fact that (i) commercial
drivers' operate in a highly regulated industry, (ii) have submitted to substantial federal monitoring of
their physical health and qualifications, and (iii) already must undergo urinalysis biennially, we
conclude that the incremental decrease in privacy occasioned by the collection of a second urine
specimen for drug-testing is, in this narrow context, constitutionally tolerable. Cf. Bluestein, 908 F.2d
at 455-57. That the drug testing procedure erected by the regulations is solicitous, to the extent
possible, of drivers' privacy concerns further buttresses our holding. See Railway Labor, 489 U.S. at
626-27, 109 S.Ct. at 1418(procedures for specimen collection minimize intrusion on privacy).

The Unions contend that the timing of random drug tests under the FHWA regulations makes the
intrusion on privacy constitutionally prohibitive. The Unions' objection targets two aspects of the
random testing program: the surprise inherent in random testing and the repetition of the tests over
the course of a driver's career.
With respect to the element of surprise, we have recognized that the lack of notice inherent in a
random testing program "is a relevant consideration; and, in a particularly close case, it is possible
that this factor would tip the scales." Bluestein, 908 F.2d at 457 (quotation omitted). We conclude,
however, that the element of surprise does not "tip the scales" in this instance.
First, we note that the measure of surprise under the fourth amendment is not the apprehension of
one who has been using drugs, but rather the anxiety "engendered in law abiding [drivers] by the
nature of the" search. Michigan Dep't of State Police v. Sitz, ___ U.S. ___, 110 S.Ct. 2481, 2486, 110
L.Ed.2d 412 (1990). While random testing by definition involves some element of surprise, the
amount of anxiety should not be substantial. Drivers will be aware of the existence of a random drugtesting scheme, so while the precise time of the test will be unknown, the fact that they are subject to
this search procedure will not be a surprise. Cf. Schaill by Kross, 864 F.2d at 1322 (use of published
selection criteria reduced stigma and fear associated with selection for drug testing). The uncertainty
confronting the drivers is thus unlike the surprise occasioned by roving border patrols, which the
Supreme Court found constitutionally intolerable inAlmeida-Sanchez v. United States, 413 U.S. 266,
93 S.Ct. 2535, 37 L.Ed.2d 596 (1973), where citizens did not know in advance that a search would
be forthcoming. Rather, this situation is more comparable to the traffic checkpoints upheld in United
States v. Martinez-Fuerte, 428 U.S. 543, 558-59, 96 S.Ct. 3074, 3083, 49 L.Ed.2d 1116 (1976).
Here, as there, the persons being searched will know that others are subject to the same search
procedure and will have visible indicia of the search administrator's authority. Cf. id.; see also United
States v. Ortiz, 422 U.S. 891, 894-95, 95 S.Ct. 2585, 2587-88, 45 L.Ed.2d 623 (1975).
Second, this court has previously upheld random searches, despite the element of surprise they
contain.Bluestein, 908 F.2d at 456-57. Nothing suggests that the element of surprise works
commercial drivers any greater hardship than it did the airline personnel in Bluestein.
Moreover, in sustaining post-accident drug testing in Railway Labor, the Supreme Court implicitly
acknowledged that searches may be conducted without advance notice and yet remain faithful to the
fourth amendment, at least as long as the surprise is necessary to accomplish the government's
purpose.Railway Labor, 489 U.S. at 630, 109 S.Ct. at 1420 ("By ensuring that employees in safetysensitive positions know they will be tested upon the occurrence of a triggering event, the timing of
which no employee can predict with certainty, the regulations significantly increase the deterrent
effect....") (emphasis added); see also New York v. Burger, 482 U.S. 691, 710, 107 S.Ct. 2636, 2648,
96 L.Ed.2d 601 (1987) (unannounced administrative searches of automobile junkyards upheld
despite element of surprise, because surprise was "crucial" to attainment of regulatory goals). Train
accidents are no more predictable than the date of a random drug test.
In sum, we hold that, on the circumstances of this case, the privacy intrusion effected by random
searches is minimal, given the commercial drivers' already substantially reduced privacy
expectations.

2. COMPELLING GOVERNMENTAL INTEREST

We must balance against the intrusion on drivers' privacy the strength of the governmental interest
inspiring the institution of random drug testing. Bluestein, 908 F.2d at 455. The FHWA cited
enhanced transportation safety, accident avoidance, and deterrence of drug use as its primary
motivation for enacting theseregulations. 53 Fed.Reg. at 22,271. The Unions argue that these
reasons are not sufficiently compelling to justify an abridgement of the drivers' fourth amendment
rights. They stress the lack of evidence of a serious drug problem among commercial drivers and the
FHWA's failure to rely on less intrusive alternatives to drug-testing to achieve its goals. We reject
both arguments and hold that the FHWA has enunciated a compelling governmental interest in
conducting random drug tests of commercial drivers.
The FHWA has a compelling interest in preventing drivers from using illegal drugs while behind the
wheel. Both this court and the Supreme Court have acknowledged the vital governmental interest in
ensuring the sobriety and fitness of operators of dangerous instrumentalities or equipment.
In Railway Labor, the Supreme Court found compelling the Department of Transportation's interest in
testing railway employees, including train operators, because such employees "discharge duties
fraught with such risks of injury to others that even a momentary lapse of attention can have
disastrous consequences" and make judgments that "can cause great human loss before any signs
of impairment become noticeable to supervisors or others." Railway Labor, 489 U.S. at 628, 109
S.Ct. at 1419.
Similarly, in Treasury Employees, the Supreme Court upheld drug testing for customs service
employees who carry firearms. In so holding, the Court focused on the "extraordinary safety and
national security hazards that would attend the promotion of drug users to positions that require the
carrying of firearms."Treasury Employees, 489 U.S. at 674, 109 S.Ct. at 1395.
In a case closely analogous to the one at hand, we recognized the Department of Transportation's
compelling interest in randomly testing airline employees, including pilots, for drug
use. Bluestein, 908 F.2d at 456. There, as here, the substantial harm that an airplane crash could
occasion and the need to protect the safety of the traveling public prompted the promulgation of the
random drug testing regulation. Id.; see also Electrical Workers, 913 F.2d at 1462 ("[T]he
consequent harm that would occur from a pipeline accident is sufficient to merit the finding of a
strong governmental interest in the detection and deterrence of substance abuse among pipeline
workers.").
The concern for safety and deterrence exhibited by the FHWA at least parallels, if not exceeds, the
governmental interests found compelling in these earlier cases. A 26,000 pound truck, like the
locomotive in Railway Labor and the airplane in Bluestein, "becomes lethal when operated
negligently by persons who are under the influence of ... drugs." Railway Labor, 489 U.S. at 628, 109
S.Ct. at 1419 (quoting Railway Labor Executives' Ass'n v. Burnley, 839 F.2d 575, 593 (9th Cir.1988)
(Alarcon, J., dissenting)). Given the enormous size of commercial trucks, relative to other vehicles
on the road, a single mistake in judgment or momentary lapse in attention can have devastating
consequences for other travelers. This is especially true for drivers who carry hazardous cargo.
While a single accident may not imperil as many lives as a single airline or train crash, the vast

number of drivers on the road at any given time6 multiplies the danger to motorists and raises the
FHWA's concern for transportation safety to the level of a compelling governmental interest.
The Unions argue that the lack of hard evidence revealing a serious drug abuse problem among
professional drivers belies the FHWA's professed safety concerns. They dismiss as "anecdotal" the
evidence garnered by the FHWA in support of the regulations.
The Unions' objection does not diminish the strength of the governmental interest for two reasons.
First, the administrative record reveals a reasonable basis for the FHWA's concerns. Witnesses
testifiedabout their personal knowledge of drug use by commercial drivers. Others noted that the
nature of the profession (long hours, long periods alone and away from home) heightens drivers'
susceptibility to drug use and abuse. Statistical studies documenting drug usage by drivers and
revealing the deterrent effect of drug testing were also introduced. While reasonable people may
debate the weight to be accorded various types of evidence, the FHWA nonetheless had a
reasonable basis for deciding to implement drug testing.
Furthermore, even assuming no evidence of substantial drug abuse among truck drivers existed, the
FHWA's interest in deterring drug abuse and in "preventing an otherwise pervasive societal problem
from spreading" to the trucking industry would "furnish[] an ample justification" for the testing
program. Treasury Employees, 489 U.S. at 674-75 & n. 3, 109 S.Ct. at 1395 & n. 3. Indeed, we
noted in Bluestein that nothing in Supreme Court precedent predicates the constitutionality of a drug
testing program on the preexistence of a drug abuse problem in the group to be
tested. Bluestein, 908 F.2d at 456 n. 6; see also Electrical Workers, 913 F.2d at 1461 (random
testing of pipeline workers upheld despite the agency's inability to document a widespread drug
problem in the pipeline industry). "[T]he deterrent purposes of the [FHWA's] program and the
potential for serious harm" constitute a compelling justification for the regulations.Bluestein, 908 F.2d
at 456.
The Unions also contend that the governmental interest is not compelling because alternative, less
intrusive means exist to promote transportation safety and drug deterrence. The Supreme Court,
however, has explicitly rejected the notion that the constitutionality of a drug testing program turns
upon the availability of less intrusive means to achieve the agency's goals. Railway Labor, 489 U.S.
at 629 n. 9, 109 S.Ct. at 1419 n. 9 (reasonableness of post-accident drug testing "`does not
necessarily or invariably turn on the existence of alternative "less intrusive" means'") (quoting Illinois
v. Lafayette, 462 U.S. 640, 647, 103 S.Ct. 2605, 2610, 77 L.Ed.2d 65 (1983)).
Furthermore, it is not clear that alternative types of drug tests, such as reasonable suspicion testing,
would accomplish the dual goals of safety and deterrence. The FHWA has enacted a comprehensive
drug testing program involving a variety of different drug tests. In its considered judgment, such a
thoroughgoing approach was necessary to ensure that commercial drivers abstain from drug use
throughout their careers. Random drug testing has particular appeal because, due to its inherent
element of surprise, complete abstinence from drug use is the drivers' only safeguard against failure.
Temporary abstinence will often suffice to survive periodic or preemployment drug screens. Postaccident testing, although also containing an element of surprise, does not pack as powerful a
deterrent punch because it is less frequent and less certain.

Random testing also responds to the "operational realities of the [drivers'] workplace." O'Connor v.
Ortega,480 U.S. at 717, 107 S.Ct. at 1497. Commercial drivers work alone and unsupervised for
substantial periods of time. The opportunity for supervisors to detect drug usage, and thus have
reasonable suspicion to conduct a test, is minimal. As a result, drivers could cause "great human
loss before any signs of impairment become noticeable to supervisors or others." Railway
Labor, 489 U.S. at 628, 109 S.Ct. at 1419.
Given the unique deterrent effect of random testing and the inefficacy of relying on individualized
suspicion in this particular employment context, the FHWA reasonably found the alternative, less
intrusive drug tests to be insufficient to meet its goals. We are ill-equipped to second-guess the
FHWA's judgment on this matter. Railway Labor, 489 U.S. at 629 n. 9, 109 S.Ct. at 1419 n. 9.
3. THE BALANCE
Having concluded that the incremental intrusion on drivers' privacy worked by random drug testing is
minimal and that the FHWA's purpose for instituting thetests is compelling, we conclude that random
drug testing of commercial drivers does not offend the fourth amendment despite the lack of a
warrant or individualized suspicion. Reinforcing our decision to strike this balance are the recent
opinions of numerous courts, including our own, upholding random drug testing under similar
circumstances. See, e.g., Electrical Workers, 913 F.2d at 1464 (random drug testing of pipeline
workers); Hartness v. Bush, 919 F.2d 170, 173 (D.C.Cir.1990) (random testing of government
employees with "secret" national security clearances); Bluestein, 908 F.2d at 455-57 (random testing
of aviation personnel); Taylor v. O'Grady, 888 F.2d 1189, 1199 (7th Cir.1989) (random testing of
correctional officers who have contact with prisoners); American Fed'n of Gov't Employees v.
Skinner, 885 F.2d 884, 889-93 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 1960, 109
L.Ed.2d 321 (1990) (random testing of transportation employees); National Fed'n of Fed.
Employees, 884 F.2d at 610-13 (random testing of certain Army civilian employees); Thomson v.
Marsh, 884 F.2d at 115 (random testing of employees at chemical weapons plant); Harmon v.
Thornburgh, 878 F.2d 484, 496 (D.C.Cir.1989), cert. denied, ___ U.S. ___, 110 S.Ct. 865, 107
L.Ed.2d 949 (1990) (random testing of Justice Department employees with "top secret"
clearance); Guiney v. Roache, 873 F.2d 1557, 1558 (1st Cir.), cert. denied, ___ U.S. ___, 110 S.Ct.
404, 107 L.Ed.2d 370 (1989) (random testing of police officers); Policeman's Benevolent Ass'n,
Local 318 v. Township of Washington, 850 F.2d 133, 141 (3d Cir.1988), cert. denied, 490 U.S. 1004,
109 S.Ct. 1637, 104 L.Ed.2d 153 (1989) (random testing of police officers); Rushton v. Nebraska
Public Power Dist., 844 F.2d 562, 567 (8th Cir.1988) (random testing of nuclear power plant
employees); McDonnell v. Hunter, 809 F.2d 1302, 1308-09 (8th Cir.1987) (random testing of
correctional officers). We would be hard-pressed to find the transportation safety concerns
articulated by the FHWA any less compelling or the privacy intrusion any more substantial in this
instance than in any of the foregoing cases. We therefore hold that the FHWA's regulations
mandating random drug testing are constitutional on their face.
C. PERIODIC TESTING
The Unions also raise fourth amendment objections to the institution of periodic (biennial) drug
testing. Under the regulations, motor carriers must conduct a drug test on all drivers during their first
medical examination following commencement of the entire drug testing program. 49 C.F.R.

391.105(a).7 A year after random drug testing has been fully implemented, motor carriers may
discontinue periodic urinalysis for controlled substance use. 49 C.F.R. 391.105(c).
The Unions argue here, as they did with random testing, that the intrusion on drivers' privacy
outweighs the governmental purposes accomplished by periodic testing. They also argue that the
regulations' failure to require motor carriers to discontinue periodic testing after random testing
commences exacerbates the constitutional violation because random testing will have already
accomplished the goals of safety and deterrence. Periodic testing will be incapable of further
advancing these ends. We find these arguments unpersuasive and affirm the validity of the periodic
testing regulations.
The constitutional analysis we applied to upholding random drug testing applies with equal vigor
here. In fact, the drivers' privacy objections have significantly less force in this context. The testing
will take place once, during the course of a thorough physical examination that already entails
urinalysis. Moreover, periodic testing does not involve the element of surprise that the Unions found
so troublesome with random drug testing. The incremental increase in intrusiveness of asking
drivers to contribute two, rather than one, specimen in the course of their medical examinations does
not tip the constitutional scales against permitting the search.
On the other hand, the government's interest in conducting the tests is not decreased.Because
random testing could, by definition, miss some drivers, the FHWA has a compelling interest in
guaranteeing that all drivers are tested at least once. Blanket testing will better promote
transportation safety and will further advance deterrence, because no driver using or contemplating
using drugs will be tempted to play the odds in the hope that random testing does not target him. All
will know that all will be tested.
While the constitutional balance might be struck differently if the FHWA mandated continued periodic
testing even after random drug testing is in full swing, this is not such a case. The FHWA specifically
permits the early termination of biennial testing to avoid redundancy. To the extent private motor
carriers may elect, at that point, to continue periodic testing, they will no longer be doing so at the
behest of the federal government and the fourth amendment will thus no longer constrain their
conduct. Railway Labor,489 U.S. at 614, 109 S.Ct. at 1411 ("[T]he Fourth Amendment does not
apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative.").
D. PRE-EMPLOYMENT TESTING
In addition to random and biennial drug screens, the regulations mandate that motor carriers
administer drug tests to all prospective employees whom they intend to hire. 49 C.F.R.
391.103(a).8 The Unions articulate essentially the same objections to pre-employment testing that
they raise with respect to random and periodic testing. For the same reasons we sustained the
constitutionality of the latter two tests, we hold that pre-employment testing does not violate the
fourth amendment.
The privacy expectations of people seeking to work as commercial drivers are significantly reduced
relative to other members of society. They have voluntarily chosen to enter a highly regulated
profession that already requires periodic extensive physical examinations and urinalysis to

determine the qualifications of its members. In Treasury Employees, the Supreme Court held that
persons seeking new employment positions in a highly regulated profession involving compelling
public safety and security concerns could be subjected to drug tests prior to starting their
jobs. Treasury Employees, 489 U.S. at 677, 109 S.Ct. at 1396 (Customs employees tested upon
promotion to sensitive positions). In reaching this conclusion, the Court attached great significance
to the fact that the new positions already required background investigations and medical
examinations. Id. ("We also agree that employees who seek promotions to positions where they
would handle sensitive information can be required to submit to a urine test under the Service's
screening program, especially if the positions covered under this category require background
investigations, medical examinations, or other intrusions that may be expected to diminish their
expectations of privacy in respect of a urinalysis test.") (emphasis added).
The level of intrusion, furthermore, is less than that encountered in random testing. No element of
surprise is involved. The test is triggered by the job applicant's own voluntary conduct, and will occur
only once in the applicant's career.
The FHWA's compelling interest in transportation safety justifies this narrow privacy intrusion. Unlike
random or periodic testing, pre-employment testing ensures that drivers who use drugs never get
behind the wheel of a 26,000 pound truck in the first instance. The FHWA need not wait until a driver
is actually working (and thus a potential daily hazard) to begin promoting safety and deterrence. The
regulations prevent the transportation risk from ever coming to fruition. 9 This concern for preempting
accidents outweighs the minimal intrusion on job applicants' privacy, making the conduct of
suspicionless, pre-employment testing constitutional.
E. POST-ACCIDENT TESTING
The fourth and final constitutional objection levelled against the FHWA's regulations concerns the
requirement that drivers arrange on their own to be tested for drug use within thirty-two hours of a
"reportable accident." 49 C.F.R. 391.113(a). The regulations consider an accident "reportable" if it
involves (1) a fatality, (2) an injury demanding immediate medical treatment away from the scene of
the accident, or (3) at least $4,400 in property damage. 49 C.F.R. 394.3.10
The Unions' objections to post-accident drug testing echo the concerns they voiced with respect to
random, periodic, and post-accident testing (such as the extent of the intrusion on privacy and the
lack of evidence that drug use is a significant factor in accidents involving commercial trucks). We
reject these arguments and hold the regulations constitutional.
The Supreme Court has already sustained the constitutionality of post-accident testing for railroad
operators. Railway Labor, 489 U.S. at 626-32, 109 S.Ct. at 1418-21. In so holding, the Court
stressed the deterrent value of such tests.
By ensuring that employees in safety-sensitive positions know they will be tested upon the
occurrence of a triggering event, the timing of which no employee can predict with certainty, the
regulations significantly increase the deterrent effect of the [regulations banning drug use] ...,
concomitantly increasing the likelihood that employees will forgo using drugs [while on] ... duty.

Id. at 630, 109 S.Ct. at 1420 (citation omitted). The Court also noted that such tests would help the
railroads "obtain invaluable information about the causes of major accidents ... and to take
appropriate measures to safeguard the general public." Id. (citation omitted).
Those same policy concerns obtain in this case. The FHWA cited both deterrence and the need to
gather information about the causes of accidents as its basis for promulgating the post-accident drug
testing regulations. 53 Fed.Reg. at 47,140-41. At the same time, nothing in the record suggests that
the commercial drivers' expectation of privacy is any greater than that enjoyed by the railroad
employees inRailway Labor. Indeed, the drivers' privacy expectations may be less because nothing
in Railway Laborindicates that railway employees were already required to undergo biennial
urinalysis. We accordingly uphold the constitutionality of the post-accident drug testing regulation. 11
II. THE ARBITRARY AND CAPRICIOUS CLAIM
In addition to their constitutional objections, the Unions assert that the FHWA acted arbitrarily and
capriciously in enacting these regulations. They object, in particular, to the lack of an evidentiary
basis for believing either that a drug problem exists in the industry or that the conduct of drug tests
will cure the problem.
We hold that the promulgation of these regulations was not arbitrary and capricious. The agency
specifically explained why it chose to implement these regulations. It collected evidence, both
testimonial and empirical, documenting a drug use problem in the motor carrier industry and
demonstrating the efficacy of these various drug tests in achieving the goals of deterrence and
transportation safety. The agency also considered how these tests would affect drivers' privacy, as
evidenced by its adoption of testing procedures designed to maximize driver privacy and
confidentiality. While the FHWA's investigation might not have been paradigmatic, it nonethelesswas
sufficiently reasonable to justify its actions. See Bluestein, 908 F.2d at 457.
CONCLUSION
Today we uphold a massive drug testing program that will touch the lives of literally millions of
citizens. We do not do so lightly. We share many of the Unions' concerns about the substantial
inroads drug testing makes on our precious fourth amendment freedoms. But we do not write upon a
clean slate in this area. Much of our decision is compelled by prior decisions of the Supreme Court
and this Circuit. Unless and until Congress or the Supreme Court reconsiders the enormous
constitutional cost, in terms of lost privacy, dignity, and autonomy, resulting from the "war on drugs,"
we are bound to apply the law as it exists. We therefore hold that, given the comprehensive
governmental regulation to which commercial drivers are already subject, the FHWA's random,
biennial, pre-employment, and post-accident drug testing regulations are constitutional on their face.
PETITION FOR REVIEW DENIED.

DIMEO v. GRIFFINNO. 89-3025.

943 F.2d 679 (1991)
Vincent DIMEO, et al., Plaintiffs-Appellees,
v.
Farrell J. GRIFFIN, in his official capacity as Chairman of the Illinois Racing Board, and David
L. Diana, et al., in their official capacities as members of the Illinois Racing Board,
Defendants-Appellants.
United States Court of Appeals, Seventh Circuit.
Argued September 11, 1990.
Decided February 4, 1991.
Reargued June 11, 1991.
Decided August 12, 1991.
As Amended September 26, 1991.
Harvey M. Grossman (argued), Alan K. Chen, Roger Baldwin Foundation, Steven R. Gilford,
Scott J. Frankel, Mayer, Brown & Platt, Chicago, Ill., for plaintiffs-appellees.
Thomas A. Ioppolo, Asst. Atty. Gen. (argued), Chicago, Ill., for defendants-appellants.
Before BAUER, Chief Judge, and CUMMINGS, WOOD, Jr., CUDAHY, POSNER, COFFEY,
FLAUM, EASTERBROOK, RIPPLE, MANION and KANNE, Circuit Judges.
Reargued En Banc June 11, 1991.
POSNER, Circuit Judge.
The Illinois Racing Board promulgated a rule that requires jockeys and other participants in horse
races in Illinois to submit to random drug testing not founded on any suspicion of wrongdoing. A
class action on behalf of these participants was broughtagainst the Board, charging that the rule
violated their Fourth Amendment right to be free from unreasonable searches. The district court
granted a preliminary injunction. 721 F.Supp. 958 (N.D.Ill.1989). A panel of this court, by a divided
vote, affirmed the district court, agreeing that the rule violated the Fourth Amendment. 924 F.2d
664 (7th Cir.1991). We granted rehearing en banc to enable the full court to consider the unclear,
delicate, and important question of where the Fourth Amendment should be deemed to strike the
balance between the interest of the state in using drug testing as a regulatory instrument and the
interest of persons in preserving their physical privacy.
The operative word in the Fourth Amendment is "reasonable," the legal standard therefore is
reasonableness, and the decision whether a particular public program that invades interests
protected by the amendment is nonetheless reasonable, and therefore lawful, requires a judgmental,
forward-looking, balance-striking, probabilistic assessment, rather than, as the plaintiffs would have
it, a conclusive demonstration of measurable harms certain to be inflicted if the program is struck
down. New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 740, 83 L.Ed.2d 720
(1985); Treasury Employees v. Von Raab,489 U.S. 656, 674, 109 S.Ct. 1384, 1395, 103 L.Ed.2d 685
(1989); International Brotherhood of Teamsters v. Department of Transportation, 932 F.2d 1292,
1304-05 (9th Cir.1991); Willner v. Thornburgh, 928 F.2d 1185, 1187-88 (D.C.Cir.1991); Harmon v.
Thornburgh, 878 F.2d 484, 487-88 (D.C.Cir.1989). The weaker the interest asserted, therefore, the
less showing of countervailing harms the government must make. Skinner v. Railway Labor
Executives' Ass'n, 489 U.S. 602, 633, 109 S.Ct. 1402, 1421, 103 L.Ed.2d 639 (1989);Willner v.
Thornburgh, supra, 928 F.2d at 1188 ("decreasing levels of intrusiveness require decreasing levels
of justification"), 1190; Taylor v. O'Grady, 888 F.2d 1189, 1199 (7th Cir.1989); Thomson v. Marsh,884

F.2d 113, 115 (4th Cir.1989) (per curiam). And since the plaintiff's interest the privacy interest
cannot be quantified, neither need the regulatory interest be quantified. Although the appeal is from
a preliminary injunction, the parties have asked us to decide the ultimate question, which is whether
the drug-testing program violates the Fourth Amendment. Chicago Observer, Inc. v. City of
Chicago, 929 F.2d 325, 329 (7th Cir.1991); Cronin v. U.S. Department of Agriculture, 919 F.2d 439,
445 (7th Cir.1990).
The facts that bear on the balance of the competing interests in this case, and therefore on the
reasonableness of the challenged rule, are set forth in the panel majority opinion, and can be
summarized briefly. Horse racing in Illinois, as everywhere else in the civilized world (as far as we
know), is a heavily regulated activity, and this for three reasons. It is highly dangerous to jockeys and
to their counterparts in harness racing, called drivers; it is a magnet for gambling; and it has an
unsavory, or at least a shadowed, reputation, growing out of a long history of fixing, cheating, doping
of horses, illegal gambling, and other corrupt practices. Phillips v. Graham, 86 Ill.2d 274, 286, 56
Ill.Dec. 355, 360, 427 N.E.2d 550, 555 (1981);Garifine v. Monmouth Park Jockey Club, 29 N.J. 47,
56-57, 148 A.2d 1, 5 (1959); U.S. Commission on the Review of the National Policy Toward
Gambling, "Second Interim Report" 52, 54 (July 1976); cf. Marrone v. Washington Jockey Club, 227
U.S. 633, 33 S.Ct. 401, 57 L.Ed. 679 (1913). The second and third points are of course related.
Gambling on horse races as on other sports and games has generally been illegal in this country,
and illegal activities create and attract unsavory characters and methods: especially horse racing,
because of the enormous sums bet on it. Illinois allows parimutuel betting (where the odds are
determined automatically by the amount bet on each horse rather than set by bookmakers), but
betting through bookmakers continues to flourish though illegal and the industry has never been able
wholly to dispel an aura of scandal.
The Illinois Racing Board has a dual concern with the use of illegal drugs by participants in horse
races. First is a concernwith the personal safety of those participants, who might be injured or killed
in accidents that would not have occurred but for such use. Second is a financial concern. Illinois
derives tens of millions of dollars in tax revenues annually from parimutuel betting. Those revenues
would fall if betting declined as a result of a belief by the public that the fairness of the races was
being impaired because jockeys and other participants were using drugs. Pelling v. Illinois Racing
Board, 214 Ill.App.3d 675, 158 Ill.Dec. 322, 325-26,574 N.E.2d 116, 119-120 (1991).
Members of the Jockeys' Guild first approached the Illinois Racing Board in 1984 with expressions of
concern about drug use by participants in horse races. In 1985 the Board adopted a pilot drug test
screening program for jockeys and harness drivers; 17 percent tested positive for cocaine,
marijuana, or both. The validity of the test methodology is challenged but there is doubtless some
drug use among horse-race participants, for the Jockeys' Guild has instituted a drug counseling
program for its members. In 1988 the Board, acting pursuant to a statute that gives it broad
regulatory authority over horse racing in Illinois, adopted the rule challenged in this case. The
plaintiffs do not argue that the enabling statute is invalid or that the rule is not authorized by it. Nor
do they challenge the entire rule. They do not challenge the part that forbids horse-race participants
to use on the grounds of any race track any illegal drug (technically, any "controlled substance" not
lawfully prescribed by a physician). They challenge the method of enforcement random drug
testing, up to five times a year per participant. The individual is permitted to give his urine specimen

in the (relative) privacy of a toilet stall, with a representative of the Board standing by but not actually
watching the individual urinate.
The Fourth Amendment, as interpreted in the modern cases, protects privacy. Katz v. United
States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); United States v. Janik, 723 F.2d 537,
547-48 (7th Cir.1983). Urination is generally a private activity in our culture, though, for most men,
not highly private. Men urinate side by side in public restrooms without embarrassment even though
there is usually very little, and often no, attempt to partition the urinals. In hospitals and physicians'
offices, urine samples of both men and women are generally taken by female nurses or technicians
under conditions of privacy similar to those prescribed by the racing board's rule (there are female
as well as male jockeys). The affront to the cluster of emotions that define the sense of privacy that
is caused by the giving of a urine sample is not the same for everybody and of particular relevance
here it is slight for people who for whatever reason are subject to frequent medical examinations.
Boxers receive complete medical examinations before each match, which may be several times a
year. Many Americans have an annual physical examination in which they provide a urine sample,
expose their most private parts to inspections, and are poked, squeezed, and kneaded in these and
other private places all this with a minimum sense of embarrassment and certainly none of
affront. Athletes (not limited to boxers), actors, and airline pilots are illustrative of the many types of
worker whose job is of a character that requires the worker to submit to frequent medical
examinations. As Hamlet said, "The hand of little employment hath the daintier sense." The less
habituated a person is to undergoing medical or other intrusions into his private realm, the more
sensitive he is apt to be to such intrusions; the more habituated he is to them, the less sensitive he is
apt to be. A further point, which distinguishes the person who has frequent medical examinations
because of illness from the person who has frequent medical examinations because his job requires
it, is that the latter voluntarily trades away some of his privacy for other goods. Cf. Willner v.
Thornburgh, supra, 928 F.2d at 1190, 1193. Self-selection will tend to allocate jobs in which privacy
is limited to persons who value privacy less.
The plaintiffs do not doubt that the Board could if it wanted require them to undergo a complete
medical examinationbefore each race, and such an examination would require the giving of a urine
specimen. The only difference would be the supervising personnel. On balance the full examination
would be substantially more intrusive than the test required by the challenged rule. Also more
numerous, since jockeys race more than five times a year.
Like other losses, losses of privacy should be evaluated at the margin. The issue is
the incremental loss of privacy caused by the Board's rule. International Brotherhood of Teamsters v.
Department of Transportation, supra, 932 F.2d at 1300; see also Willner v. Thornburgh, supra, 928
F.2d at 1190-92. That increment is slight, and the burden on the state of establishing the need for the
rule is correspondingly lightened. Certainly the state need not, as it might in other circumstances
have to do, demonstrate a danger of mass disaster the sort of danger that a drug-using airline
pilot or missile silo commander might pose. It need not point to specific accidents caused by a drugusing jockey or some other horse-race participant. It need only demonstrate that the state interest in
random drug testing is substantial, not that it is transcendent.
The state's interest here has, as we have said, two components. One is the personal safety of the
participants, the other the financial interest of the state. With respect to the first, Judge Wood's panel

majority opinion was eloquent on the dangers of racing (including harness racing) and on the
potential for accidents that is posed by drug-using by any of the participants. The jockeys, the
harness drivers, the assistant starters (who help the jockey control the horse in the starting stall),
and the outriders (also called parade marshals: they ride the horses from the paddock to the track
before the race) are personally in danger, as well as a danger to persons in the vicinity. The starter is
in no danger himself, but if he starts the race before all the horses are facing forward in the starting
stalls, poised to run, he can provoke an accident that might crush a jockey or an assistant starter. (A
race horse weighs half a ton.) The persons at greatest risk are the jockeys and harness drivers; they
are at risk from each other but also from the other participants, and that is why it is important that all
the participants be careful and alert. Drug use impairs care and alertness, slows reflexes, impairs
judgment.
The more dangerous an activity is, the more dangerous is drug use by participants in it. Horse racing
is the most dangerous of the common sports, other than auto racing. An average of 2 jockeys are
killed each year in this country, out of some 2,000 (the membership of the Jockeys' Guild,
1 Encyclopedia of Associations 2221 (25th ed., Deborah Burek ed. 1991)), and another 100 are
injured seriously enough to be disabled for at least a week. The Jockeys' Guild has 40 permanently
disabled members one out of every 50. The annual death toll of 1 per 1,000 implies that a jockey
who races for 10 years has a 1 percent chance of dying in a race. How much the use of illegal drugs
contributes to this toll is unknown, but cannot be assumed to be trivial.
To the danger to personal safety must be added the danger to the state fisc. As we have said, the
State of Illinois derives substantial revenues from horse racing, and does so in an era of financial
stringency for state and local government. It can ill afford a drop in those revenues. Yet they would
drop if parimutuel betting declined, and such betting might decline if the public suspected
widespread use of drugs by horse-race participants. We do not want to place undue weight on this
consideration. The primary losers from any decline in revenues from horse racing are the owners of
the race tracks, who being private entities could require random drug-testing of the users of their
facilities without coming within the scope of the Fourth Amendment at all, and yet they have not done
so. Maybe they have not done so because the Illinois Racing Board has acted for them, but their
failure to act is some evidence that the fiscal benefits of the challenged rule are smaller than the
Board claims. Smaller, but surely not negligible, given the public suspicion of thehonesty of racing
and other sports; and they reinforce the concerns about the personal safety of the horse-race
participants if drug use is not deterred with the aid of a vigorous program of random drug-testing.
The district judge was influenced by the fact that there have been no proven cases of lethal or other
serious accidents caused by drug-using horse-race participants, or any other public scandals
resulting from such use (as distinct from the doping of the horses themselves an old problem in
horse racing). But government is not limited to addressing public safety problems after serious
accidents reveal its want of foresight. Menora v. Illinois High School Ass'n, 683 F.2d 1030, 1034 (7th
Cir.1982). Dissenting in Von Raab, Justice Scalia pointed out that "neither frequency of [drug] use
nor connection to harm is demonstrated," 489 U.S. at 681, 109 S.Ct. at 1398, and the majority
acknowledged that the "testing scheme was not implemented in response to any perceived drug
problem among Customs employees" and "that the program actually has not led to the discovery of
a significant number of drug users" in fact, "no more than 5 employees out of 3,600 have tested
positive for drugs." Id. at 673, 109 S.Ct. at 1394. (That is a little more than one-tenth of 1 percent.

Compare the 17 percent who tested positive in the Racing Board's pilot test albeit this may not be
a reliable number.) Yet still the program was upheld.
When we compare the plausible dangers, both to safety and to revenue, that the challenged rule
aims to combat with the very moderate incremental infringement of privacy that the rule brings
about, we conclude that the rule is not unreasonable, and therefore that it does not violate the Fourth
Amendment. In so concluding we join the only other federal court of appeals to have considered the
legality of a drug-testing program for horse-race participants. Shoemaker v. Handel, 795 F.2d 1136,
1141-43 (3d Cir.1986).Horsemen's Benevolent & Protective Ass'n, Inc. v. State Racing Comm'n, 403
Mass. 692, 532 N.E.2d 644(1989), invalidated a drug-testing program for jockeys similar to the one
challenged in this case, but the primary ground was the state constitution rather than the Fourth
Amendment and the decision preceded the Supreme Court's drug-testing cases, though so
did Shoemaker. Serpas v. Schmidt, 827 F.2d 23 (7th Cir.1987), rejected Illinois's claim to be allowed
to conduct random searches of the living quarters of "backstretchers," who take care of horses at
race tracks but do not participate in the race. It was not a drug-testing case but an old-fashioned
search case, and the persons to be tested were not actual race participants. So the intrusion on
privacy was greater and the state interest weaker.
Random drug-testing has been adopted and challenged in a variety of other settings of course, and
it is from the cases dealing with these other drug-testing programs that we have distilled the
principles that have guided us in this opinion. Their factual differences from each other and from this
case are too great for the other cases to control our decision, but a brief summary may help to
demonstrate the conformity of our decision with the developing case law.
Almost all the cases fall into one of three categories: transportation workers, government employees,
and sports participants. Random drug-testing of transportation workers is consistently upheld,
whether they are railroad employees, truck drivers, airline pilots, or bus drivers. The leading case
is Skinner v. Railway Labor Executives' Ass'n, supra, but there is a host of others,
including Bluestein v. Skinner, 908 F.2d 451 (9th Cir.1990), and Transport Workers' Union v.
Southeastern Pennsylvania Transportation Authority, 884 F.2d 709 (3d Cir.1989). The public safety
interest in such testing is obvious.
The government employee cases are a mixed lot. Following the lead given by the Supreme Court
inTreasury Employees v. Von Raab, supra, the courts uphold such testing where the government
employee is armed and therefore potentially dangerous, where he has a security clearance and
therefore poses a potential threat of compromising national security should he becomeaddicted to
drugs, where he works with dangerous materials, where he is involved in the enforcement of the
drug laws themselves and might therefore be tempted into illegal activity involving drugs, or where,
as in the case of prison guards, he is in direct contact with drug offenders. Illustrative cases
are American Federation of Government Employees v. Skinner, 885 F.2d
884 (D.C.Cir.1989); National Federation of Federal Employees v. Cheney, 884 F.2d
603 (D.C.Cir.1989); Thomson v. Marsh, supra; and our own Taylor v. O'Grady, supra. The cases do
not, however, permit random drug-testing of administrative and back office personnel, who though
employed by the armed forces or other government agencies do not themselves pose any great
threat to safety or other interests. Our decisions in Taylor and Serpas (the "backstretcher" case) are
of this type. Analogous is Harmon v. Thornburgh, supra, which held that criminal prosecutors in the

Justice Department, unless they hold security clearances or are involved in drug prosecutions, may
not be subjected to random drug-testing.
Last are the sports cases. Two are the horse-racing cases that we have already discussed
(Shoemakerand Horsemen's Benevolent). Schaill v. Tippecanoe County School Corp., 864 F.2d
1309 (7th Cir.1988), upheld random drug testing of high school athletes, but we based the decision
on the idea that the Fourth Amendment applies with diminished force in schools, an idea with no
apparent relevance to the present case. O'Halloran v. University of Washington, 679 F.Supp. 997,
1005-07 (W.D.Wash.), rev'd on other grounds, 856 F.2d 1375 (9th Cir.1988), upheld random drug
testing of athletes participating in intercollegiate competition, emphasizing the prevalence of drug
abuse in competitive sports. See generally Note, "Drug Testing and the Student-Athlete: Meeting the
Constitutional Challenge," 76 Iowa L.Rev. 107 (1990).
The present case differs from the transportation cases in that those cases involve a danger to
passengers and bystanders as well as to the transportation workers themselves. The present case is
equally remote, however, from the government employee cases in which random drug-testing was
struck down, because in those cases the employees in question were dangerous neither to
themselves nor to third parties. The salient facts in the present case, which have no direct
counterpart in any other cases except the other horse-racing cases, are that the incremental
invasion of privacy is very slight; the physical danger of drug use not only (or always) to the user
himself, but also to other participants albeit not to the broader public is acute; and there is in
addition a substantial state financial interest (the parimutuel revenues), which is comparable with the
interest in maintaining an efficient and productive work force, stressed in Willner v. Thornburgh,
supra, 928 F.2d at 1192-93. In conjunction, these factors persuade us that the state interests
outweigh the very limited privacy interest and therefore that the program is lawful.
Obviously this is a more difficult judgment with regard to the starters, assistant starters, and parade
marshals than with regard to the jockeys and harness drivers. Not only are the jockeys and drivers in
greater danger, but they are the athletes, whom the Racing Board could reasonably decide to make
submit to physical examinations before each race. However, the other participants who are in no or
little danger themselves the starters and the outriders can endanger other participants, while
the assistant starters can endanger both themselves and the jockeys or drivers; and all these other
participants can, if impaired or corrupted by a drug habit, ruin the fairness of the race. It is desirable,
too, not to multiply legal distinctions indefinitely or engender internal frictions within the racing
community by allowing random drug-testing of jockeys and drivers but not of the other participants in
the race.
We conclude that the Racing Board's program of random drug testing of participants in horse racing
does not violate the Fourth Amendment. The judgment is therefore reversed and the case remanded
with instructions to dismiss the suit.

G.R. Nos. 108280-83 November 16, 1995

ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS SANTOS, and JOSELITO
TAMAYO,petitioners,

vs.
PEOPLE OF THE PHILIPPINES and COURT OF APPEALS, respondents.
G.R. Nos. 114931-33 November 16, 1995
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee,
vs.
ANNIE FERRER, accused, ROMEO SISON, NILO PACADAR, JOEL TAN, RICHARD DE LOS
SANTOS, and JOSELITO TAMAYO, accused-appellants.

PUNO, J.:
The case before us occurred at a time of great political polarization in the aftermath of the 1986
EDSA Revolution. This was the time when the newly-installed government of President Corazon C.
Aquino was being openly challenged in rallies, demonstrations and other public fora by "Marcos
loyalists," supporters of deposed President Ferdinand E. Marcos. Tension and animosity between
the two (2) groups sometimes broke into violence. On July 27, 1986, it resulted in the murder of
Stephen Salcedo, a known "Coryista."
From August to October 1986, several informations were filed in court against eleven persons
identified as Marcos loyalists charging them with the murder of Salcedo. Criminal Case No. 8647322 was filed against Raul Billosos y de Leon and Gerry Nery y Babazon; Criminal Case No. 8647617 against Romeo Sison y Mejia, Nilo Pacadar y Abe and Joel Tan y Mostero; Criminal Case No.
86-47790 against Richard de los Santos y Arambulo; Criminal Case No. 86-48538 against Joselito
Tamayo y Ortia; and Criminal Case No. 86-48931 against Rolando Fernandez y Mandapat. Also filed
were Criminal Cases Nos. 86-49007 and 86-49008 against Oliver Lozano and Benjamin Nuega as
well as Annie Ferrer charging them as accomplices to the murder of Salcedo.
The cases were consolidated and raffled to the Regional Trial Court, Branch XLIX, Manila. All of the
accused pleaded not guilty to the charge and trial ensued accordingly. The prosecution presented
twelve witnesses, including two eyewitnesses, Ranulfo Sumilang and Renato Banculo, and the
police officers who were at the Luneta at the time of the incident. In support of their testimonies, the
prosecution likewise presented documentary evidence consisting of newspaper accounts of the
incident and various photographs taken during the mauling.
The prosecution established that on July 27, 1986, a rally was scheduled to be held at the Luneta by
the Marcos loyalists. Earlier, they applied for a permit to hold the rally but their application was
denied by the authorities. Despite this setback, three thousand of them gathered at the Rizal
Monument of the Luneta at 2:30 in the afternoon of the scheduled day. Led by Oliver Lozano and
Benjamin Nuega, both members of the Integrated Bar of the Philippines, the loyalists started an
impromptu singing contest, recited prayers and delivered speeches in between. Colonel Edgar Dula
Torres, then Deputy Superintendent of the Western Police District, arrived and asked the leaders for
their permit. No permit could be produced. Colonel Dula Torres thereupon gave them ten minutes to
disperse. The loyalist leaders asked for thirty minutes but this was refused. Atty. Lozano turned
towards his group and said "Gulpihin ninyo ang lahat ng mga Cory infiltrators." Atty. Nuega added
"Sige, sige gulpihin ninyo!" The police then pushed the crowd, and used tear gas and truncheons to
disperse them. The loyalists scampered away but some of them fought back and threw stones at the
police. Eventually, the crowd fled towards Maria Orosa Street and the situation later stabilized. 1
At about 4:00 p.m., a small group of loyalists converged at the Chinese Garden, Phase III of the
Luneta. There, they saw Annie Ferrer, a popular movie starlet and supporter of President Marcos,
jogging around the fountain. They approached her and informed her of their dispersal and Annie
Ferrer angrily ordered them "Gulpihin ninyo and mga Cory hecklers!" Then she continued jogging
around the fountain chanting "Marcos pa rin, Marcos pa rin, Pabalikin si Marcos, Pabalikin si
Marcos, Bugbugin ang mga nakadilaw!" The loyalists replied "Bugbugin!" A few minutes later, Annie

Ferrer was arrested by the police. Somebody then shouted "Kailangang gumanti, tayo ngayon!" A
commotion ensued and Renato Banculo, a cigarette vendor, saw the loyalists attacking persons in
yellow, the color of the "Coryistas." Renato took off his yellow shirt. 2 He then saw a man wearing a
yellow t-shirt being chased by a group of persons shouting "Iyan, habulin iyan. Cory iyan!" The man
in the yellow t-shirt was Salcedo and his pursuers appeared to be Marcos loyalists. They caught
Salcedo and boxed and kicked and mauled him. Salcedo tried to extricate himself from the group but
they again pounced on him and pummelled him with fist blows and kicks hitting him on various parts
of his body. Banculo saw Ranulfo Sumilang, an electrician at the Luneta, rush to Salcedo's aid.
Sumilang tried to pacify the maulers so he could extricate Salcedo from them. But the maulers
pursued Salcedo unrelentingly, boxing him with stones in their fists. Somebody gave Sumilang a
loyalist tag which Sumilang showed to Salcedo's attackers. They backed off for a while and
Sumilang was able to tow Salcedo away from them. But accused Raul Billosos emerged from behind
Sumilang as another man boxed Salcedo on the head. Accused Richard de los Santos also boxed
Salcedo twice on the head and kicked him even as he was already fallen. 3 Salcedo tried to stand but
accused Joel Tan boxed him on the left side of his head and ear. 4 Accused Nilo Pacadar punched
Salcedo on his nape, shouting: "Iyan, Cory Iyan. Patayin!" 5 Sumilang tried to pacify Pacadar but the
latter lunged at the victim again. Accused Joselito Tamayo boxed Salcedo on the left jaw and kicked
him as he once more fell. Banculo saw accused Romeo Sison trip Salcedo and kick him on the
head, and when he tried to stand, Sison repeatedly boxed him. 6 Sumilang saw accused Gerry Neri
approach the victim but did not notice what he did. 7
Salcedo somehow managed to get away from his attackers and wipe off the blood from his face. He
sat on some cement steps 8 and then tried to flee towards Roxas boulevard to the sanctuary of the
Rizal Monument but accused Joel Tan and Nilo Pacadar pursued him, mauling Sumilang in the
process. Salcedo pleaded for his life exclaiming "Maawa na kayo sa akin. Tulungan ninyo ako." He
cried: "Pulis, pulis. Wala bang pulis?" 9
The mauling resumed at the Rizal Monument and continued along Roxas Boulevard until Salcedo
collapsed and lost consciousness. Sumilang flagged down a van and with the help of a traffic officer,
brought Salcedo to the Medical Center Manila but he was refused admission. So they took him to
the Philippine General Hospital where he died upon arrival.
Salcedo died of "hemorrhage, intracranial traumatic." He sustained various contusions, abrasions,
lacerated wounds and skull fractures as revealed in the following post-mortem findings:

The mauling of Salcedo was witnessed by bystanders and several press people, both local and
foreign. The press took pictures and a video of the event which became front-page news the
following day, capturing national and international attention. This prompted President Aquino to order
the Capital Regional Command and the Western Police District to investigate the incident. A reward
of ten thousand pesos (P10,000.00) was put up by Brigadier General Alfredo Lim, then Police Chief,
for persons who could give information leading to the arrest of the killers.11 Several persons,
including Ranulfo Sumilang and Renato Banculo, cooperated with the police, and on the basis of
their identification, several persons, including the accused, were apprehended and investigated.
For their defense, the principal accused denied their participation in the mauling of the victim and
offered their respective alibis. Accused Joselito Tamayo testified that he was not in any of the
photographs presented by the prosecution 12 because on July 27, 1986, he was in his house in
Quezon City. 13 Gerry Neri claimed that he was at the Luneta Theater at the time of the
incident. 14 Romeo Sison, a commercial photographer, was allegedly at his office near the Luneta
waiting for some pictures to be developed at that time. 15 He claimed to be afflicted with hernia
impairing his mobility; he cannot run normally nor do things forcefully. 16 Richard de los Santos
admits he was at the Luneta at the time of the mauling but denies hitting Salcedo. 17 He said that he
merely watched the mauling which explains why his face appeared in some of the
photographs. 18 Unlike the other accused, Nilo Pacadar admits that he is a Marcos loyalist and a
member of the Ako'y Pilipino Movement and that he attended the rally on that fateful day. According
to him, he saw Salcedo being mauled and like Richard de los Santos, merely viewed the
incident. 19 His face was in the pictures because he shouted to the maulers to stop hitting
Salcedo. 20 Joel Tan also testified that he tried to pacify the maulers because he pitied Salcedo. The
maulers however ignored him. 21
The other accused, specifically Attys. Lozano and Nuega and Annie Ferrer opted not to testify in
their defense.
On December 16, 1988, the trial court rendered a decision finding Romeo Sison, Nilo Pacadar, Joel
Tan, Richard de los Santos and Joselito Tamayo guilty as principals in the crime of murder qualified
by treachery and sentenced them to 14 years 10 months and 20 days of reclusion temporal as
minimum to 20 years of reclusion temporal as maximum. Annie Ferrer was likewise convicted as an
accomplice. The court, however, found that the prosecution failed to prove the guilt of the other
accused and thus acquitted Raul Billosos, Gerry Nery, Rolando Fernandez, Oliver Lozano and
Benjamin Nuega. The dispositive portion of the decision reads as follows:

Cyanosis, lips, and nailbeds.

WHEREFORE, judgement is hereby rendered in the aforementioned cases as follows:
Contused-abrasions: 6.0 x 2.5 cm., and 3.0 x 2.4 cm., frontal region, right side; 6.8 x 4.2 cm., frontal
region, left side; 5.0 x 4.0 cm., right cheek; 5.0 x 3.5 cm., face, left side; 3.5 x 2.0 cm., nose; 4.0 x
2.1 cm., left ear, pinna; 5.0 x 4.0 cm. left suprascapular region; 6.0 x 2.8 cm., right elbow.

1. In "People versus Raul Billosos and Gerry Nery," Criminal Case No. 86-47322, the Court finds
that the Prosecution failed to prove the guilt of the two (2) Accused beyond reasonable doubt for the
crime charged and hereby acquits them of said charge;

Abrasions: 4.0 x 2.0 cm., left elbow; 2.0 x 1.5 cm., right knee.
Lacerated wounds: 2.2 cm., over the left eyebrow; 1.0 cm., upper lip.
Hematoma, scalp; frontal region, both sides; left parietal region; right temporal region; occipital
region, right side.
Fractures, skull; occipital bone, right side; right posterior cranial fossa; right anterior cranial fossa.
Hemorrhage, subdural, extensive.
Other visceral organs, congested.
Stomach, about 1/2 filled with grayish brown food materials and fluid. 10

2. In "People versus Romeo Sison, et al.," Criminal Case No. 86-47617, the Court finds the Accused
Romeo Sison, Nilo Pacadar and Joel Tan, guilty beyond reasonable doubt, as principals for the
crime of Murder, defined in Article 248 of the Revised Penal Code, and, there being no other
mitigating or aggravating circumstances, hereby imposes on each of them an indeterminate penalty
of from FOURTEEN (14)YEARS, TEN (10) MONTHS and TWENTY (20) DAYS, of Reclusion
Temporal, as minimum, to TWENTY (20) DAYS, of Reclusion Temporal, as minimum, to TWENTY
(20) YEARS ofReclusion Temporal, as Maximum;
3. In "People versus Richard de los Santos," Criminal Case No. 86-47790, the Court finds the
Accused Richard de los Santos guilty beyond reasonable doubt as principal for the crime of Murder
defined in Article 248 of the Revised Penal Code and, there being no other extenuating
circumstances, the Court hereby imposes on him an indeterminate penalty of from FOURTEEN (14)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to
TWENTY (20) YEARS of Reclusion Temporal as Maximum;

4. In "People versus Joselito Tamayo," Criminal Case No. 86-48538 the Court finds the Accused
guilty beyond reasonable doubt as principal, for the crime of "Murder" defined in Article 248 of the
Revised Penal Code and hereby imposes on him an indeterminate penalty of from FOURTEEN (14)
YEARS, TEN (10) MONTHS and TWENTY (20) DAYS of Reclusion Temporal, as Minimum, to
TWENTY (20) YEARS of Reclusion Temporal, as Maximum;
5. In "People versus Rolando Fernandez," Criminal Case No. 86-4893l, the Court finds that the
Prosecution failed to prove the guilt of the Accused for the crime charged beyond reasonable doubt
and hereby acquits him of said charge;
6. In "People versus Oliver Lozano, et al.," Criminal Case No. 86-49007, the Court finds that the
Prosecution failed to prove the guilt of the Accused beyond reasonable doubt for the crime charged
and hereby acquits them of said charge;
7. In "People versus Annie Ferrer," Criminal Case No. 86-49008, the Court finds the said Accused
guilty beyond reasonable doubt, as accomplice to the crime of Murder under Article 18 in relation to
Article 248 of the Revised Penal Code and hereby imposes on her an indeterminate penalty of NINE
(9) YEARS and FOUR (4) MONTHS of Prision Mayor, as Minimum to TWELVE (12) YEARS, FIVE
(5) MONTHS and ELEVEN (11) DAYS of Reclusion Temporal, as Maximum.
The Accused Romeo Sison, Nilo Pacadar, Richard de los Santos, Joel Tan, Joselito Tamayo and
Annie Ferrer are hereby ordered to pay, jointly and severally, to the heirs of Stephen Salcedo the
total amount of P74,000.00 as actual damages and the amount of P30,000.00 as moral and
exemplary damages, and one-half (1/2) of the costs of suit.

3. Accused-appellant Annie Ferrer is hereby ACQUITTED of being an accomplice to the crime of

Murder.
CONSIDERING that the penalty of Reclusion Perpetua has been imposed in the instant
consolidated cases, the said cases are now hereby certified to the Honorable Supreme Court for
review. 24
Petitioners filed G.R. Nos. 108280-83 under Rule 45 of the Revised Rules of Court inasmuch as
Joselito Tamayo was not sentenced to reclusion perpetua. G.R. Nos. 114931-33 was certified to us
for automatic review of the decision of the Court of Appeals against the four accused-appellants
sentenced to reclusion perpetua.
Before this court, accused-appellants assign the following errors:
I
THE HONORABLE COURT OF APPEALS GRAVELY ERRED WHEN IT NOTED THAT THE
ACCUSED FAILED TO CITE ANYTHING ON RECORD TO SUPPORT THEIR AVERMENT THAT
THERE WERE NO WITNESSES WHO HAVE COME FORWARD TO IDENTIFY THE PERSONS
RESPONSIBLE FOR THE DEATH OF STEPHEN SALCEDO.

The period during which the Accused Nilo Pacadar, Romeo Sison, Joel Tan, Richard de los Santos
and Joselito Tamayo had been under detention during the pendency of these cases shall be credited
to them provided that they agreed in writing to abide by and comply strictly with the rules and
regulations of the City Jail.
The Warden of the City Jail of Manila is hereby ordered to release the Accused Gerry Nery, Raul
Billosos and Rolando Fernandez from the City Jail unless they are being detained for another cause
or charge.

II
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN GIVING CREDENCE TO THE
UNRELIABLE, DOUBTFUL, SUSPICIOUS AND INCONCLUSIVE TESTIMONIES OF
PROSECUTION WITNESS RANULFO SUMILANG.
III
THE HONORABLE COURT OF APPEALS LIKEWISE ERRED IN FINDING THE ACCUSED GUILTY
WHEN THERE WAS NO EVIDENCE TO PROVE THAT ANY OF THE ACCUSED CARRIED A
HARD AND BLUNT INSTRUMENT, THE ADMITTED CAUSE OF THE HEMORRHAGE RESULTING
IN THE DEATH OF THE DECEASED.

The Petition for Bail of the Accused Rolando Fernandez has become moot and academic. The
Petition for Bail of the Accused Joel Tan, Romeo Sison and Joselito Tamayo is denied for lack of
merit.
The bail bonds posted by the Accused Oliver Lozano and Benjamin Nuega are hereby cancelled.

as a consequence, an indeterminate penalty of TWELVE (12) YEARS of prision mayor as Minimum

to TWENTY (20) YEARS of reclusion temporal as Maximum is hereby imposed upon him;

22

On appeal, the Court of Appeals 23 on December 28, 1992, modified the decision of the trial court by
acquitting Annie Ferrer but increasing the penalty of the rest of the accused, except for Joselito
Tamayo, to reclusion perpetua. The appellate court found them guilty of murder qualified by abuse of
superior strength, but convicted Joselito Tamayo of homicide because the information against him
did not allege the said qualifying circumstance. The dispositive portion of the decision reads:
PREMISES CONSIDERED, the decision appealed from is hereby MODIFIED as follows:
1. Accused-appellants Romeo Sison y Mejia, Nilo Pacadar y Abe, Joel Tan y Mostero and Richard
de los Santos are hereby found GUILTY beyond reasonable doubt of Murder and are each hereby
sentenced to suffer the penalty of Reclusion Perpetua;
2. Accused-appellant Joselito Tamayo y Oria is hereby found GUILTY beyond reasonable doubt of
the crime of Homicide with the generic aggravating circumstance of abuse of superior strength and,

IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THERE EXISTS
CONSPIRACY AMONG THE PRINCIPAL ACCUSED.
V
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN FINDING THAT THE CRIME
COMMITTED IS MURDER AND NOT DEATH (HOMICIDE) CAUSED IN A TUMULTUOUS
AFFRAY. 25
In their additional brief, appellants contend that:
I

THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN REACHING A CONCLUSION OF

FACT UTILIZING SPECULATIONS, SURMISES, NON-SEQUITUR CONCLUSIONS, AND EVEN
THE DISPUTED DECISION OF THE TRIAL COURT, TO UPHOLD THE VALIDITY OF THE VERY
SAME JUDGMENT, ALL CONTRARY TO THE RULES OF EVIDENCE.
II
THE HONORABLE COURT OF APPEALS ERRED IN ADMITTING EXHIBITS "D", "G", "O", "P", "V",
TO "V-48", "W" TO "W-13", ALL OF WHICH WERE NOT PROPERLY IDENTIFIED.
III
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN CONCLUDING THAT
CONSPIRACY EXISTED IN THE CASE AT BAR DISREGARDING ALTOGETHER THE SETTLED
JURISPRUDENCE ON THE MATTER.

imperfect senses. In the court's discretion, therefore, the testimony of a witness can be believed as
to some facts but disbelieved with respect to the others. 34
We sustain the appellate and trial courts' findings that the witnesses' testimonies corroborate each
other on all important and relevant details of the principal occurrence. Their positive identification of
all petitioners jibe with each other and their narration of the events are supported by the medical and
documentary evidence on record.
Dr. Roberto Garcia, the medico-legal officer of the National Bureau of Investigation, testified that the
victim had various wounds on his body which could have been inflicted by pressure from more than
one hard object. 35 The contusions and abrasions found could have been caused by punches, kicks
and blows from rough stones. 36 The fatal injury of intracranial hemorrhage was a result of fractures
in Salcedo's skull which may have been caused by contact with a hard and blunt object such as
fistblows, kicks and a blunt wooden instrument. 37
Appellants do not deny that Salcedo was mauled, kicked and punched. Sumilang in fact testified that
Salcedo was pummeled by his assailants with stones in their hands. 38

IV
THE HONORABLE COURT OF APPEALS GRAVELY ERRED IN RULING THAT THE CRIME
COMMITTED WAS MURDER, NOT DEATH (HOMICIDE) IN TUMULTUOUS AFFRAY
SIDESTEPPING IN THE PROCESS THE FACTUAL GROUNDS SURROUNDING THE
INCIDENT. 26
Appellants mainly claim that the Court of Appeals erred in sustaining the testimonies of the two in
prosecution eyewitnesses, Ranulfo Sumilang and Renato Banculo, because they are unreliable,
doubtful and do not deserve any credence. According to them, the testimonies of these two
witnesses are suspect because they surfaced only after a reward was announced by General Lim.
Renato Banculo even submitted three sworn statements to the police geared at providing a new or
improved version of the incident. On the witness stand, he mistakenly identified a detention prisoner
in another case as accused Rolando Fernandez. 27 Ranulfo Sumilang was evasive and unresponsive
prompting the trial court to reprimand him several times. 28
There is no proof that Banculo or Sumilang testified because of the reward announced by General
Lim, much less that both or either of them ever received such reward from the government. On the
contrary, the evidence shows that Sumilang reported the incident to the police and submitted his
sworn statement immediately two hours after the mauling, even before announcement of any
reward. 29 He informed the police that he would cooperate with them and identify Salcedo's
assailants if he saw them again. 30
The fact that Banculo executed three sworn statements does not make them and his testimony
incredible. The sworn statements were made to identify more suspects who were apprehended
during the investigation of Salcedo's death. 31
The records show that Sumilang was admonished several times by the trial court on the witness
stand for being argumentative and evasive. 32 This is not enough reason to reject Sumilang's
testimony for he did not exhibit this undesirable conduct all throughout his testimony. On the whole,
his testimony was correctly given credence by the trial court despite his evasiveness at some
instances. Except for compelling reasons, we cannot disturb the way trial courts calibrate the
credence of witnesses considering their visual view of the demeanor of witnesses when on the
witness stand. As trial courts, they can best appreciate the verbal and non-verbal dimensions of a
witness' testimony.
Banculo's mistake in identifying another person as one of the accused does not make him an
entirely untrustworthy witness. 33 It does not make his whole testimony a falsity. An honest mistake is
not inconsistent with a truthful testimony. Perfect testimonies cannot be expected from persons with

Appellants also contend that although the appellate court correctly disregarded Exhibits "D," "G,"
and "P," it erroneously gave evidentiary weight to Exhibits "O," "V," "V-1" to "V-48," "W," "W-1" to "W13." 39 Exhibit "O" is the Joint Affidavit of Pat. Flores and Pat. Bautista, the police intelligenceoperatives who witnessed the rally and subsequent dispersal operation. Pat. Flores properly
identified Exhibit "O" as his sworn statement and in fact gave testimony corroborating the contents
thereof. 40 Besides, the Joint Affidavit merely reiterates what the other prosecution witnesses testified
to. Identification by Pat. Bautista is a surplusage. If appellants wanted to impeach the said affidavit,
they should have placed Pat. Flores on the witness stand.
Exhibits "V," "V-1" to "V-48" are photographs taken of the victim as he was being mauled at the
Luneta starting from a grassy portion to the pavement at the Rizal Monument and along Roxas
Boulevard, 41 as he was being chased by his assailants 42 and as he sat pleading with his
assailants. 43 Exhibits "W", "W-1" to "W-13" are photographs of Salcedo and the mauling published in
local newspapers and magazines such as the Philippine Star, 44 Mr. and Ms. Magazine, 45 Philippine
Daily Inquirer, 46 and the Malaya. 47 The admissibility of these photographs is being questioned by
appellants for lack of proper identification by the person or persons who took the same.
The rule in this jurisdiction is that photographs, when presented in evidence, must be identified by
the photographer as to its production and testified as to the circumstances under which they were
produced. 48 The value of this kind of evidence lies in its being a correct representation or
reproduction of the original, 49 and its admissibility is determined by its accuracy in portraying the
scene at the time of the crime. 50 The photographer, however, is not the only witness who can
identify the pictures he has taken. 51 The correctness of the photograph as a faithful representation
of the object portrayed can be proved prima facie, either by the testimony of the person who made it
or by other competent witnesses, after which the court can admit it subject to impeachment as to its
accuracy. 52 Photographs, therefore, can be identified by the photographer or by any other
competent witness who can testify to its exactness and accuracy. 53
This court notes that when the prosecution offered the photographs as part of its evidence,
appellants, through counsel Atty. Alfredo Lazaro, Jr. objected to their admissibility for lack of proper
identification. 54 However, when the accused presented their evidence, Atty. Winlove Dumayas,
counsel for accused Joselito Tamayo and Gerry Neri used Exhibits "V", "V-1" to "V-48" to prove that
his clients were not in any of the pictures and therefore could not have participated in the mauling of
the victim. 55 The photographs were adopted by appellant Joselito Tamayo and accused Gerry Neri
as part of the defense exhibits. And at this hearing, Atty. Dumayas represented all the other accused
per understanding with their respective counsels, including Atty. Lazaro, who were absent. At
subsequent hearings, the prosecution used the photographs to cross-examine all the accused who
took the witness stand. 56 No objection was made by counsel for any of the accused, not until Atty.
Lazaro appeared at the third hearing and interposed a continuing objection to their admissibility. 57

The objection of Atty. Lazaro to the admissibility of the photographs is anchored on the fact that the
person who took the same was not presented to identify them. We rule that the use of these
photographs by some of the accused to show their alleged non-participation in the crime is an
admission of the exactness and accuracy thereof. That the photographs are faithful representations
of the mauling incident was affirmed when appellants Richard de los Santos, Nilo Pacadar and Joel
Tan identified themselves therein and gave reasons for their presence thereat. 58
An analysis of the photographs vis-a-vis the accused's testimonies reveal that only three of the
appellants, namely, Richard de los Santos, Nilo Pacadar and Joel Tan could be readily seen in
various belligerent poses lunging or hovering behind or over the victim. 59 Appellant Romeo Sison
appears only once and he, although afflicted with hernia is shown merely running after the
victim. 60Appellant Joselito Tamayo was not identified in any of the pictures. The absence of the two
appellants in the photographs does not exculpate them. The photographs did not capture the entire
sequence of the killing of Salcedo but only segments thereof. While the pictures did not record Sison
and Tamayo hitting Salcedo, they were unequivocally identified by Sumilang and
Banculo 61Appellants' denials and alibis cannot overcome their eyeball identification.
Appellants claim that the lower courts erred in finding the existence of conspiracy among the
principal accused and in convicting them of murder qualified by abuse of superior strength, not death
in tumultuous affray.
Death in a tumultuous affray is defined in Article 251 of the Revised Penal code as follows:
Art. 251. Death caused in a tumultuous affray. When, while several persons, not composing
groups organized for the common purpose of assaulting and attacking each other reciprocally,
quarrel and assault each other in a confused and tumultuous manner, and in the course of the affray
someone is killed, and it cannot be ascertained who actually killed the deceased, but the person or
persons who inflicted serious physical injuries can be identified, such person or persons shall be
punished by prison mayor.
If it cannot be determined who inflicted the serious physical injuries on the deceased, the penalty
ofprision correccional in its medium and maximum periods shall be imposed upon all those who shall
have used violence upon the person of the victim.
For this article to apply, it must be established that: (1) there be several persons; (2) that they did not
compose groups organized for the common purpose of assaulting and attacking each other
reciprocally; (3) these several persons quarrelled and assaulted one another in a confused and
tumultuous manner; (4) someone was killed in the course of the affray; (5) it cannot be ascertained
who actually killed the deceased; and (6) that the person or persons who inflicted serious physical
injuries or who used violence can be identified. 62
A tumultuous affray takes place when a quarrel occurs between several persons and they engage in
a confused and tumultuous affray, in the course of which some person is killed or wounded and the
author thereof cannot be ascertained. 63
The quarrel in the instant case, if it can be called a quarrel, was between one distinct group and one
individual. Confusion may have occurred because of the police dispersal of the rallyists, but this
confusion subsided eventually after the loyalists fled to Maria Orosa Street. It was only a while later
after said dispersal that one distinct group identified as loyalists picked on one defenseless individual
and attacked him repeatedly, taking turns in inflicting punches, kicks and blows on him. There was
no confusion and tumultuous quarrel or affray, nor was there a reciprocal aggression at this stage of
the incident. 64
As the lower courts found, the victim's assailants were numerous by as much as fifty in
number 65 and were armed with stones with which they hit the victim. They took advantage of their
superior strength and excessive force and frustrated any attempt by Salcedo to escape and free
himself. They followed Salcedo from the Chinese Garden to the Rizal Monument several meters

away and hit him mercilessly even when he was already fallen on the ground. There was a time
when Salcedo was able to get up, prop himself against the pavement and wipe off the blood from his
face. But his attackers continued to pursue him relentlessly. Salcedo could not defend himself nor
could he find means to defend himself. Sumilang tried to save him from his assailants but they
continued beating him, hitting Sumilang in the process. Salcedo pleaded for mercy but they ignored
his pleas until he finally lost consciousness. The deliberate and prolonged use of superior strength
on a defenseless victim qualifies the killing to murder.
Treachery as a qualifying circumstance cannot be appreciated in the instant case. There is no proof
that the attack on Salcedo was deliberately and consciously chosen to ensure the assailants' safety
from any defense the victim could have made. True, the attack on Salcedo was sudden and
unexpected but it was apparently because of the fact that he was wearing a yellow t-shirt or because
he allegedly flashed the "Laban" sign against the rallyists, taunting them into mauling him. As the
appellate court well found, Salcedo had the opportunity to sense the temper of the rallyists and run
away from them but he, unfortunately, was overtaken by them. The essence of treachery is the
sudden and unexpected attack without the slightest provocation on the part of the person being
attacked. 66
The qualifying circumstance of evident premeditation was alleged in the information against Joselito
Tamayo. Evident premeditation cannot be appreciated in this case because the attack against
Salcedo was sudden and spontaneous, spurred by the raging animosity against the so-called
"Coryistas." It was not preceded by cool thought and reflection.
We find however the existence of a conspiracy among appellants. At the time they were committing
the crime, their actions impliedly showed a unity of purpose among them, a concerted effort to bring
about the death of Salcedo. Where a conspiracy existed and is proved, a showing as to who among
the conspirators inflicted the fatal wound is not required to sustain a conviction. 67 Each of the
conspirators is liable for all acts of the others regardless of the intent and character of their
participation, because the act of one is the act of all. 68
The trial court awarded the heirs of Salcedo P74,000.00 as actual damages, P30,000.00 as moral
and exemplary damages, and one half of the costs of the suit. At the time he died on July 27, 1986,
Salcedo was twenty three years old and was set to leave on August 4, 1986 for employment in Saudi
Arabia. 69 The reckless disregard for such a young person's life and the anguish wrought on his
widow and three small children, 70 warrant an increase in moral damages from P30,000.00 to
P100,000.00. The indemnity of P50,000.00 must also be awarded for the death of the victim. 71
IN VIEW WHEREOF, the decision appealed from is hereby affirmed and modified as follows:
1. Accused-appellants Romeo Sison, Nilo Pacadar, Joel Tan and Richard de los Santos are found
GUILTY beyond reasonable doubt of Murder without any aggravating or mitigating circumstance and
are each hereby sentenced to suffer the penalty of reclusion perpetua;
2. Accused-appellant Joselito Tamayo is found GUILTY beyond reasonable doubt of the crime of
Homicide with the generic aggravating circumstance of abuse of superior strength and, as a
consequence, he is sentenced to an indeterminate penalty of TWELVE (12) YEARS of prision
mayoras minimum to TWENTY (20) YEARS of reclusion temporal as maximum;
3. All accused-appellants are hereby ordered to pay jointly and severally the heirs of Stephen
Salcedo the following amounts:
(a) P74,000.00 as actual damages;
(b) P100,000.00 as moral damages; and
(c) P50,000.00 as indemnity for the death of the victim.

Costs against accused-appellants.

After Belarmino had fired at Fernandez, the latter fell and then he stood up with raised hands,
saying: "Don't kill me. I'll not fight." As Fernandez walked towards his car, which was a few meters
away, Medrana fired at him. The victim continued walking in a zigzag manner towards his car.
Belarmino again fired at him. Fernandez buckled down on one knee and then he rose and moved
towards the driving range in a wobbly manner. Medrana followed him and fired at him
repeatedly.chanroblesvirtualawlibrarychanrobles virtual law library

SO ORDERED.
G. R. No. L-31871 December 14, 1981
THE PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. CEFERINO MEDRANA Y
TORRES, Accused-Appellant.
AQUINO, J.:
This is a murder case. The prosecution's evidence discloses that at around ten o'clock in the
evening of September 5, 1967, Arturo Fernandez (Oying), 24, was seated at a table in the restaurant
of the Muni Golf Links near Intramuros, Manila. With him at the table were Napoleon Medalla,
Tommy Dizon and Teodulfo D. Belarmino. They were drinking whiskey and were engaged in a
friendly conversation. Fernandez invited Medalla to attend his birthday party at the Nile Restaurant
on Friday, September 8.chanroblesvirtualawlibrarychanrobles virtual law library
Paulino Gelidon Melvin Yabut and Eladio Yabut arrived at the restaurant. Gelidon and Eladio seated
themselves beside Ceferino Medrana and Ching Santos at a table which was opposite the table
occupied by Fernandez. Melvin, who was the president of a customs brokerage firm known as
Cargoes Unlimited, Inc., seated himself beside Fernandez who was a vice-president of the
firm.chanroblesvirtualawlibrary chanrobles virtual law library
Fernandez introduced Melvin to Medalla, telling the latter that Melvin is a nephew of Nemesio Yabut.
Medalla uttered derogatory remarks against Nemesio Yabut, branding him as a squealer who
caused the apprehension of two trucks of Medalla and whom he (Medalla) would kick and spit on.
Fernandez countered that Medalla should not do that because Nemesio Yabut was his
(Oying's) compadre. Medalla remarked that Gelidon the bodyguard of Fernandez, was "stale"
(panis). Medalla then pointed to his bodyguards, Medrana and Belarmino, who were armed with
caliber .45 guns.chanroblesvirtualawlibrary chanrobles virtual law library
Shortly thereafter, Medalla directed Medrana to get from his car a Thompson submachine gun so
that he could fire it. Fernandez advised Medrana not to get the gun because trouble and scandal
might ensue. Medalla said that he assumed responsibility for the consequences. Medrana, in
compliance with Medalla's directive, stood up and walked towards the parking lot near the restaurant
and the corner of Palacio and P. Burgos Streets. Medalla also stood up and went to the parking lot.
Fernandez followed Medalla. Belarmino and Dizon also went to the parking
lot.chanroblesvirtualawlibrary chanrobles virtual law library
Maria Resma, 36, a cigarette vendor who was near the parking lot at the time, testified that, at a
distance of around fifteen paces, she saw Medalla and Fernandez grappling for the possession of a
long gun. Medalla, who was able to wrest the gun from Fernandez, placed it inside his car. Then,
Fernandez, with hands raised, moved backward, saying: "Huwag, pare, hindi ako lalaban". He was
unarmed.chanroblesvirtualawlibrarychanrobles virtual law library
Benjamin Lopez, 19, a third-year high school student who worked as a caddy and knows Medalla
and Fernandez, testified that at around ten o'clock on that night of September 5, 1967, he was at the
Muni Golf Links, leaning against a parked car while waiting for some
golfers.chanroblesvirtualawlibrarychanrobles virtual law library
He saw Medalla, Fernandez and Dizon in the parking lot. He heard a gunshot. On looking sidewise
to his left, where the sound of the gunshot originated, he perceived Medalla, Medrana and Belarmino
aiming their firearms at Fernandez, who was backing away with raised hands in a posture of
surrender. Belarmino and Medrana were armed with .45 caliber pistols (Exh.
I).chanroblesvirtualawlibrarychanrobles virtual law library

Fernandez collapsed inside the restaurant near the counter for glasses and plates. A bystander, who
was hiding behind the counter and who knew the victim, said: "Oying, Oying, huwag dito, doon ka. "
Fernandez stood up and staggered towards the fairway, still pursued by Medrana. At that juncture,
Dizon shouted to Medalla: "Napo, si Oying." Reacting to Dizon's words, Medalla shouted the order:
"Tama na yan". Heeding that injunction, Medrana desisted and returned to the parking
lot.chanroblesvirtualawlibrary chanrobles virtual law library
Medalla tucked his firearm in his waist and walked towards the driving range, following the route
taken by Fernandez. Upon overtaking Fernandez, Medalla stooped, raised the hands of Fernandez
and shouted insolently: "Ano, puede ka pa ba?" Fernandez did not answer. His head was drooping.
Medalla released him and ordered Medrana to place Fernandez in his (Medalla's) car and take him
to the hospital. The car was driven by Leopoldo Hermo, Medalla's
driver.chanroblesvirtualawlibrarychanrobles virtual law library
Fernandez was already dead upon arrival at the Philippine General Hospital. The postmortem
examination showed that he had a fatal gunshot wound in his abdomen which lacerated his
diaphragm, heart and liver. A .32 caliber slug was lodged in the pericardial sac of his heart. He had
also gunshot wounds in the buttocks, forearm and left thigh. A .45 caliber bullet had entered his
buttocks (gluteal region), exited on the right iliac region of his abdomen and reentered his right
forearm (Exh. EE).chanroblesvirtualawlibrarychanrobles virtual law library
Belarmino, 50, an employee of Medalla, voluntarily surrendered to the police and gave a statement
on the following day, September 6, wherein he admitted his participation in the shooting of
Fernandez (Exh. I). He reenacted his role in the killing (Exh. L to L-4). It is significant that in his
statement he repeatedly stated that Medrana was with him at the scene of the crime (Exh.
L).chanroblesvirtualawlibrarychanrobles virtual law library
Hermo, 51, was arrested two days later or on September 7 (Exh. N). He also demonstrated how he
shot Fernandez with his .32 caliber revolver, a Colt Cobra (Exhs. P and P-1). The booking sheet and
arrest report regarding Hermo proves that Medrana was implicated in the killing of Fernandez, as
may be seen from the following entry therein signed by Hermo, Patrolman S. Alonzo and by
Sergeant Mallari for Colonel Enrique V. Morales, the chief of the detective bureau: chanrobles virtual
law library
Herein accused (Hermo) was arrested at the above-stated time (6:30 p.m., 9-7-67), date and place
for the crime of MURDER committed as follows: chanrobles virtual law library
That on or about 10: 15 p.m., Sept. 5, 1967, herein accused (Hermo) together with Teodulfo
Belarmino y Decena, also under arrest and oneCeferino Medrana alias Ninoy still at large, shot
victim, Arturo Fernandez y Camello with a .32 caliber revolver with serial number 71087 (recovered)
inside the parking space in front of the Muni Golf Links, located at the corner of Palacio and P.
Burgos Sts., Intramuros, Manila, hitting victim, causing victim's death upon arrival at the
PGH.chanroblesvirtualawlibrarychanrobles virtual law library
Accused (Hermo) further stated that he shot victim while waiting for his employer Mr. Napoleon
Medalla at the mentioned place, when all of a sudden he heard gunshot bursts and believing that his
employer was injured, he drew his revolver tucked on his right waistline and aimed and shot point
blank at the person who he said was in an act of attacking his
employer.chanroblesvirtualawlibrarychanrobles virtual law library

The revolver was found to be covered with a certification signed by the commander of
Laguna.chanroblesvirtualawlibrarychanrobles virtual law library

he saw Medrana daily (araw-araw) armed with a .45 caliber revolver (No. 52,
Exh.I).chanroblesvirtualawlibrarychanrobles virtual law library

Accused surrendered to Col. James Barbers, Deputy Chief of Police and verbally admitted having
shot victim once but refused to give a written statement as per advice of his lawyer. (Exh. N).

As already mentioned in the recital of the prosecution's version, Hermo, Medalla's driver, signed
Patrolman Alonso's booking sheet and arrest report implicating Medrana in the killing (Exh.
N).chanroblesvirtualawlibrary chanrobles virtual law library

Belarmino was charged with murder on September 7 in an information filed in the Court of First
Instance of Manila (Criminal Case No. 87276). The next day the information was amended by
including Hermo as a co-accused. Medalla was included as a co-accused in the amended
information filed on October 19. It was alleged therein that the three accused conspired with one
whose Identity and whereabouts were still unknown.chanroblesvirtualawlibrarychanrobles virtual law
library

The statement of Eladio Yabut, taken about ten hours after the shooting, also belies the alibi of
Medrana. Eladio recounted in his statement that Medalla asked Medrana to get the Thompson
submachine gun from Medalla's car (Nos. 17 and 18, Exh. 28). This matter was also brought out in
Eladio's testimony.chanroblesvirtualawlibrary chanrobles virtual law library

Medrana, 25, had gone into hiding. He was arrested by Calamba, Laguna policemen in a nightclub
in that town on August 31, 1968 or nearly one year after the killing (Exh. GG). Prosecution witness
Gelidon Identified Medrana in a police lineup as one of the assailants of Fernandez (Exh. GG and
GG 1).chanroblesvirtualawlibrarychanrobles virtual law library

So, appellant's contention that he was not mentioned by Yabut in his statement nor implicated by
him in the killing of Fernandez (pp. 73-75, Brief) is not correct. Yabut repeatedly referred to a certain
Ninoy as being present at the scene of the crime and as the person whom Medalla instructed to get
from his car his Thompson submachine gun (Exh. 28). As previously noted, Ninoy is appellant
Medrana. Yabut knows appellant by that nickname and not by his surname
Medrana.chanroblesvirtualawlibrarychanrobles virtual law library

The case against Medrana was succinctly capsulized by Patrolman Alonso in his booking sheet and
arrest report where under the heading "Facts known to arresting officer" Alonso said (Exh.
GG): chanrobles virtual law library
Herein accused was arrested ... for the crime of murder wherein the victim is Arturo Fernandez y
Amello, committed as follows: chanrobles virtual law library
That on or about 10:15 p.m., September 5, 1967, herein accused together with other accused
already under arrest, shot victim with a .45 caliber pistol, not recovered, inside the parking space in
front of the Muni Golf Links, located at the corner of Palacio and P. Burgos Streets, Intramuros,
Manila, hitting victim in different parts of the body and causing victim's death on arrival at the
Philippine General Hospital, where he was conveyed for treatment.
Medrana was charged with murder in a separate information filed on September 2, 1968 in the Court
of First Instance. It was alleged therein that he conspired with Belarmino, Hermo and Medalla to kill
Fernandez (Criminal Case No. 90870). The case was eventually assigned to the Circuit Criminal
Court (Case No. 30). Thus, Medrana was tried separately.chanroblesvirtualawlibrary chanrobles
virtual law library
After trial, the lower court convicted him of murder qualified by abuse of superiority and aggravated
by cuadrilla sentenced him to death and ordered him to pay an indemnity of P 390,400. He appealed
to this Court.chanroblesvirtualawlibrarychanrobles virtual law library
Appellant Medrana, a high school graduate and a jeepney operator, relied on an alibi. He testified
that he was with Medalla at around two o'clock in the afternoon of September 5, 1967 and that at
about six o'clock he left the Muni Golf Links, after telling Belarmino to inform Medalla of his
departure, and rode in a bus bound for his native barrio, Mayapa,
Calamba.chanroblesvirtualawlibrary chanrobles virtual law library
Medrana's alibi is belied by Belarmino who declared in his statement, taken about fourteen hours
after the killing, that between nine and ten o'clock in the evening of September 5, 1967 Medrana
(Ninoy) was with Belarmino and Medalla at the scene of the crime and that Medrana helped Medalla
in placing the mortally wounded victim in Medalla's car (Nos. 10, 11, 18, 28, 29 and 59, Exh.
I).chanroblesvirtualawlibrarychanrobles virtual law library
While Medrana in his testimony conveys the impression that his meeting with Medalla in the
afternoon of September 5, 1967 was an isolated instance, it can be deduced from Belarmino's
statement that Medrana was a bodyguard of Medalla. Belarmino, an employee of Medalla, said that

Appellant's able counsel meticulously and painstakingly exposed the alleged discrepancies,
contradictions, bias, improbability and lack of credibility in the testimonies of prosecution witnesses
Gelidon Eladio Yabut, Resma and Lopez.chanroblesvirtualawlibrarychanrobles virtual law library
Counsel faulted the trial court for not giving probative value to the facts elicited by him during the
cross-examination of the said witnesses, for not reading his memorandum, for basing the judgment
of conviction on its observation of the demeanor of the witnesses and for giving credence to the
testimonies of Lopez and Resma in spite of the fact that they gave their statements eleven days after
the shooting and that they were given protection, assistance and shelter by the victim's father,
Senator Estanislao Fernandez (lst, 2nd, 3rd and 5th Assignments of
Error).chanroblesvirtualawlibrarychanrobles virtual law library
In resolving these contentions, it is wen to bear in mind that there is no doubt whatsoever that
Medrana was at the scene of the crime, that he participated in the shooting and that he was a
fugitive from justice for nearly a year, a circumstance indicative of guilt.
The only issue is as to what was Medrana's role in the killing where four armed persons, acting like a
firing squad, conducted a fusillade and peppered with bullets a defenseless victim whose life was not
spared notwithstanding his repeated conciliatory declaration (amounting to a plea for mercy) that he
would not fight his assailants.chanroblesvirtualawlibrary chanrobles virtual law library
Gelidon and Eladio Yabut testified that they saw Medrana, with his drawn .45 caliber automatic pistol
(naka-omang), following Fernandez who was walking on the putting green towards the driving range
in a zigzag manner (pasoray-soray) (31 and 85 tsn, February 25,
1970).chanroblesvirtualawlibrary chanrobles virtual law library
Resma testified that after Medalla had wrested the Thompson submachine gun from Fernandez and
placed it inside his car, Medalla, Belarmino and Medrana, who was on Medalla's right and who was
wearing a shirt with its long sleeves rolled up to the elbow, aimed their firearms at Fernandez. Later,
Medrana helped Medalla in placing Fernandez inside Medalla's car (113-114, 119 tsn February 25,
1970).chanroblesvirtualawlibrarychanrobles virtual law library
Lopez corroborated Resma's testimony by declaring that he saw Medalla (who was wearing a
white polo barong) and two persons on his right and left aiming their guns at Fernandez who was
moving backward. The man on Medalla's right, who was wearing a shirt with its sleeves rolled up,
was Medrana. He shot Fernandez after Belarmino, the man on Medalla's left, had fired at
Fernandez.chanroblesvirtualawlibrarychanrobles virtual law library

According to Lopez, Fernandez walked towards his car and was shot by Belarmino. Fernandez fell
on his knees and then ran towards the driving range. Medrana ceased him and shot him three times.
Fernandez fell near the place where the drinking glasses were kept. He stood up and ran to the
practice green. At that juncture, Medalla said "Tama na yan". Medrana returned to the parking lot.
Later, he and another person placed Fernandez in Medalla's car (195-204 tsn February 26,
1970).chanroblesvirtualawlibrarychanrobles virtual law library
Those testimonies of Gelidon Yabut, Resma and Lopez, all eyewitnesses, regarding Medrana's
culpability taken in conjunction with the declarations of his co-accused, Belarmino and Hermo, as to
Medrana's presence at the scene of the crime, are conclusive as to his guilt and militate against the
theory of self-defense and defense of a stranger which Medrana's counsel sought to establish in his
cross-examination of Doctor Angelo Singian, the medico-legal officer who conducted the
autopsy.chanroblesvirtualawlibrary chanrobles virtual law library
Appellant's counsel argues that the fact that Resma and Lopez gave their statements to the police
eleven days after the killing and only after having received assurances of protection from Senator
Fernandez and having been given board and lodging in his house impairs their
credibility.chanroblesvirtualawlibrarychanrobles virtual law library
The two witnesses candidly declared during the trial that they were afraid to testify because they
feared Medalla and they did not want to be involved in the case (179-180 tsn February 25, 1970;
211-212 tsn February 26, 1970).chanroblesvirtualawlibrary chanrobles virtual law library
But because Senator Fernandez gave them security guards and they lived in his residence, they
decided to testify on what they knew about the incident. Lopez said that during his first conference
with Senator Fernandez the latter told him that he (Senator Fernandez) did not want a witness who
had not actually seen what had happened. Lopez informed Senator Fernandez that he had
witnessed the incident (216 tsn February 26, 1970).chanroblesvirtualawlibrarychanrobles virtual law
library
The fact that Resma and Lopez did not volunteer to give their statements to the police immediately
after the incident and the fact that their statements were taken after Senator Fernandez had given
them protection, board and lodging might give the impression that their testimonies were mere
inventions to help the prosecution. That is appellant's basic contention in this
appeal.chanroblesvirtualawlibrary chanrobles virtual law library
We find that an unprejudiced and dispassionate appraisal of their testimonies and detailed
statements to the police (Exhs. 5 and 36) and a consideration of their personal circumstances and
the fact that they were undeniably present at the scene of the crime lead to the conclusion that their
testimonies have the earmarks of veracity and would be difficult to
fabricate.chanroblesvirtualawlibrary chanrobles virtual law library
Resma, a squatter in the ruins of Intramuros who finished grade four, and Lopez, a teenager
struggling to earn a living as a caddy, appear to be guileless individuals without any rascality in their
makeup. Belonging to a humble station in life and not accustomed to the mischievousness of more
sophisticated and educated persons, the two eyewitnesses are not of the stuff of which perjurers are
made.chanroblesvirtualawlibrarychanrobles virtual law library
They were intensively cross-examined before two judges by skilled advocates. If their declarations
as to Medrana's role in the assassination of Fernandez were fabrications, as repeatedly asseverated
by appellant in his reply brief, then the competent defense lawyers would have easily unmasked
them as liars. But Resma and Lopez withstood the gruelling cross-examination. They did not
abandon their version that Medrana was one of the gunwielders who shot
Fernandez.chanroblesvirtualawlibrarychanrobles virtual law library
Appellant's assumption that Resma and Lopez should have volunteered to apprise the police
immediately that they had witnessed the shooting is contrary to human experience. It is well-known

that eyewitnesses to killings usually do not want to undergo the trouble and inconvenience of an
investigation and of appearing in court, being grilled by lawyers and being exposed to reprisal from
the accused.chanroblesvirtualawlibrarychanrobles virtual law library
It is not surprising that in this case the victim's father had to take Resma and Lopez into custody.
Their failure to testify might have prevented the prosecution from proving its case against the
accused. A miscarriage of justice would have been the result.chanroblesvirtualawlibrarychanrobles
virtual law library
If Resma and Lopez were not telling the truth as to the participation of Medrana in the killing of
Fernandez, then Medrana should have presented eyewitnesses to refute their testimonies. There
were several persons in the driving range and parking lot at the time the incident occurred (156-157
tsn February 25, 1970).chanroblesvirtualawlibrarychanrobles virtual law library
But Medrana presented only one witness, a fifty-eight-year-old caddy named Pedro Ofredo, who
testified that when he heard the gunshots he noticed that Maring Resma, like himself. left the golf
course. He said that he did not see Lopez on the night of September 5, 1967 because Lopez did not
render any service at that time.chanroblesvirtualawlibrary chanrobles virtual law library
The truth is that Lopez resided at the caddy house where he slept. So, night and day he was in the
golf course. Resma's testimony that she witnessed the shooting with her companions Joe Solomon
and Pedro Mata cannot be nullified by Ofredo's testimony that he allegedly saw her leaving the golf
course immediately after the gunshots were heard.chanroblesvirtualawlibrary chanrobles virtual law
library
Appellant regards the failure of Resma and Lopez to recognize Medrana in the newspaper
photographs shown to them by the police (No. 45, Exh. 5; No. 43, Exh. 36) as an instance showing
their lack of credibility. It should be noted that even Medrana, when shown on the witness stand his
photograph with the caption "Ceferino Medrana" published in the Manila Times of September 16,
1967, said frankly: "I am not sure if that is my picture." (18 tsn March 2, 1970.)chanrobles virtual law
library
Resma and Lopez saw Medrana only once on the night of September 5, 1967 at the scene of the
crime. What they saw was the entire person of Medrana. They did not see him at close range or face
to face. What remained in the archives of their memory was the whole figure of Medrana's person,
not merely his head. Hence, it was difficult for them to recognize Medrana when only the photograph
of his face was shown to them (See 176 tsn, February 25,
1970).chanroblesvirtualawlibrarychanrobles virtual law library
As to the inconsistencies and contradictions, it was inevitable that the testimonies of Gelidon Eladio
Yabut, Resma and Lopez before Judge Alikpala would not jibe perfectly with their testimonies about
two years later before Judge Pamaran. The absence of discrepancies would confirm appellant's
assertion that they "gave perjured, fabricated and incredible testimony" (p. 43, Reply
Brief ).chanroblesvirtualawlibrarychanrobles virtual law library
The contradictions and errors dealt with minor details and did not nullify their declaration as to the
participation of Medrana in the shooting of Fernandez. That is the point that matters and on that
point the testimonies of the four witnesses are worthy of belief.chanroblesvirtualawlibrarychanrobles
virtual law library
Appellant contends that Judge Manuel R. Pamaran erred in not awaiting the completion of the
testimonies of Belarmino and Hermo in Criminal Case No. 87276 before Judge Federico C. Alikpala
and thus prevented Medrana from proving self-defense or defense of another person by means of
their testimonies or that the shooting was justified. (6th assignment of
error).chanroblesvirtualawlibrary chanrobles virtual law library

We hold that no error was committed by the trial court on that score. Medrana was given a separate
trial. His defense was alibi or, according to his counsel, denial of any participation in the shooting.
We have already noted that Belarmino in his confession declared that Medrana was present at the
scene of the crime (Exh. I). Hermo in the booking sheet and arrest report implicated Medrana (Exh.
N).chanroblesvirtualawlibrarychanrobles virtual law library
In the face of those statements, the testimonies of Hermo and Belarmino would be of no help to
Medrana. The medico-legal officer testified in this case and in the case against Hermo, Belarmino
and Medalla before Judge Alikpala. The theory of self-defense and defense of another person is
partly based on the medico-legal officer's testimony.chanroblesvirtualawlibrary chanrobles virtual law
library
As will be shown presently, that theory cannot be sustained in this case. The prosecution's evidence
(particularly the reenactment made by Hermo and Belarmino) proves that the ruthless liquidation of
Fernandez was not justified. There was no reason why Fernandez would perpetrate unlawful
aggression against Medalla and his bodyguards.chanroblesvirtualawlibrary chanrobles virtual law
library
Medrana's learned counsel, in his fourth assignment of error and in his summation (filed after the
submission of his brief), harps on the plea of self-defense which was intimated in Belarmino's
statement. Belarmino said that he shot Fernandez when the latter made a motion to draw his
weapon ("akmang bubunot") (No. 28, Exh. 1).chanroblesvirtualawlibrarychanrobles virtual law library
Counsel adverted to the testimony of the medico-legal expert on cross-examination that the bullet
which most probably first struck Fernandez was the .45 caliber slug (Exh. R) fired by Belarmino.
That bullet entered the left side of the victim's waist, travelled more or less horizontally across his
body, exited at the right side of his waist and then reentered and lodged on the victim's right forearm
above the right wrist. The testimony allegedly belied the claim of the prosecution witnesses that the
first shot was fired when the hands of Fernandez were raised in a gesture of surrender to Medalla
and his companions.chanroblesvirtualawlibrary chanrobles virtual law library
Counsel's argument is highly controversial. We find that the testimony of the medico-legal officer, like
expert testimony in general, is a hodgepodge of conjectures. It should be emphasized that on
redirect examination, he admitted that it was also possible that the .32 caliber bullet (Exh. S) fired by
Hermo was the first slug that Fernandez (291 tsn).chanroblesvirtualawlibrarychanrobles virtual law
library
While the conspiracy among the four accused was not proven directly, it could be implied from their
concerted attack and their relationship to each other (Belarmino and Medrana were bodyguards of
Medalla and Hermo was Medalla's driver) that they had an agreement or community of design to kill
Fernandez because of some deep-seated grudge harbored by Medalla against Fernandez and
Nemesio Yabut whose exact business relationship to Fernandez is not definitely shown in the
record.chanroblesvirtualawlibrarychanrobles virtual law library
The motive may be gleaned from the following declaration of Belarmino in his statement (No. 27,
Exh. 1):chanrobles virtual law library
Ang naging paksa ng usapan ni Oyeng (Fernandez) at ni Mr. Medalla ay iyon paggogolf nila ni Mr.
Nemesio Yabut at nasabi nga ni Mr. Medalla and tungkol doon sa barilan sa Custom, at sinabi pa ni
Medalla na mabait na tao iyan si Mr. Yabut pero kung minsan somosobra iyon(g) mga taohan
niya.chanroblesvirtualawlibrary chanrobles virtual law library
Iyon ay kinagalit ni Oyeng at katwiran niya ay hindi dapat siraan si Mr. Yabut dahil sa malaki ang
pakinabang niya ki Mr. Yabut.chanroblesvirtualawlibrary chanrobles virtual law library

Ang sagot naman ni Mr. Medalla ay wala naman akong (siyang) sinasabing masama tungkol kill Mr.
Yabut. Ang katunayan ay mabuting tao si Mr. Yabut, kaya lamang ay bakit ang dala-dala na armas
ng mga taohan niya ay high-powered at mga armalite. Iyon lamang at nagalit naman si Oyeng,
kaya't nagbayad si Mr. Medalla ng lahat ng nainom at nagyaya ng umuwi.
Appellant Medrana was a co-conspirator. His complicity in the killing of Fernandez was proven
beyond reasonable doubt.chanroblesvirtualawlibrary chanrobles virtual law library
Appellant's contention in his seventh assignment of error that the trial court erred in holding that the
killing was qualified by abuse of superiority is not well-taken. It is incontestable that the four accused,
all armed, ganged up against Fernandez and took advantage of their numerical superiority in
liquidating him with impunity. What happened in this case is known in colloquial parlance as
"overkill".chanroblesvirtualawlibrary chanrobles virtual law library
On the other hand, the Solicitor General contends that because deadly, high-powered weapons were
utilized against the helpless victim to insure his liquidation and that it is evident that the four
assailants had made some preparation for the assault, treachery should be considered
aggravating.chanroblesvirtualawlibrary chanrobles virtual law library
We disagree with that contention. The victim had been alerted that he would be liquidated. It was his
misfortune that he was not able to stop the assault. The element of surprise, a characteristic feature
ofalevosia, was absent. Anyway, the point has only academic significance because when treachery
and abuse of superior strength coexist, they are treated as one aggravating circumstance (U.S. vs.
Jamino, 3 Phil. 102, 109; People vs. Bustos, 45 Phil. 9, 54-55).chanroblesvirtualawlibrarychanrobles
virtual law library
Appellant's contention in his eighth assignment of error that abuse of superiority
absorbed cuadrilla is correct. Band cannot be appreciated in this case as an aggravating
circumstance independently of abuse of superior strength. If treachery absorbs abuse of superiority
and band (U.S. vs. Abelinde, 1 Phil. 568), then it is reasonable to hold that band should not be
treated as an aggravating circumstance separate and distinct from abuse of superior strength. The
two circumstances have the same essence which is the utilization of the combined strength of the
assailants to overpower the victim and consummate the killing.chanroblesvirtualawlibrarychanrobles
virtual law library
There being no generic aggravating circumstances nor mitigating circumstances in this case, the
penalty for murder, which is reclusion temporal maximum to death, should be imposed in its medium
period. Hence, appellant Medrana should be sentenced to reclusion
perpetua.chanroblesvirtualawlibrarychanrobles virtual law library
Appellant's last assignment of error refers to the trial court's computation of the civil liability. It
estimated the victim's life expectancy at sixty years. Since he was almost twenty-five years old when
he was killed and his salary and allowances amounted to P9,600 a year, the trial court computed his
lost earnings or income for 35 years at P336,000. That amount plus his salary of P2,400 for the rest
of 1967, moral and exemplary damages of P40,000 and the usual indemnity of P12,000 totalled
P390,400.chanroblesvirtualawlibrary chanrobles virtual law library
Appellant contends that the allowances should not have been included in the income and that the
victim's life expectancy should be based on actuarial tables.chanroblesvirtualawlibrary chanrobles
virtual law library
We hold that the indemnity of P 390,400. payable to the heirs of the victim is not excessive nor
unwarranted.chanroblesvirtualawlibrarychanrobles virtual law library

There can be no exact or uniform rule for measuring the value of a human life and the measure of
damages cannot be arrived at by precise mathematical calculation but the amount recoverable
depends on the particular facts and circumstances of each case (25 C.J.S. 1241).

In the morning of January 4, 1995, the naked cadaver of Aurea Eugenio, a bookkeeper
employed by the Centro Escolar University Credit Cooperative in Manila was found lying beside a
creek about 50 meters away from the national highway in Apalit. Her body bore multiple stab wounds
and her private parts were bloodied and showed signs of sexual abuse.

WHEREFORE, the trial court's judgment is affirmed with the modification that the penalty is reduced
to reclusion perpetua. Costs de oficio.chanroblesvirtualawlibrary chanrobles virtual law library

On May 18, 1995 two informations were filed in court charging Adel Tuangco y Dizon, Nelson
Pineda Jr. alias "Jun Tattoo"[1], and Sonny Tuangco y Dizon alias "Baba" with the crimes of rape with
homicide and theft.

SO ORDERED.
G.R. No. L-12661
THE UNITED STATES, plaintiff-appellee,
vs.
ZACARIAS TEGRADO, defendant-appellant.
Antonio M. Jimenez for appellant.
Acting Attorney-General Feria for appellee.
MALCOLM, J.:
A colt valued at P34 was stolen from Valeriano Blanca. It was subsequently found in the possession
of Agapito Partolan. The latter testified that he bought the animal from Zacarias Tegrado, the
accused. The accused, however, claimed that the colt was raised from a mare belonging to him and
then sold to Partolan. Identification of the colt to determine if its mother was a mare belonging to the
complainant Valeriano Blana or if its mother was a mare belonging to the accused Zacarias Tegrado
is, therefore, the determining factor.
The colt was identified by a number of witnesses as the property of Blanca. Other witnesses testified
to having seen the colt following a mare belonging to the accused. Whom shall we believe? We
could, of course, rest our conclusion on the findings of the trial court. We could, in addition, point out
grave discrepancies in the testimony of the witnesses for the defense, which argues against its
reliability. But there was present as in interested, spectator, another witnesses, who, without being
sworn, could tell the truth and nothing but the truth. This was the colt. The colt was separated from
the mare of the complaining witness and turned loose; it at once went back to this mare. The colt
was then taken to the mare of the accused; but showed its dislike for the mare and tried to find the
mare of the complaining witness. Another colt was placed near the mare of the complaining witness;
thereupon the mare and that colt both resisted. This was a practical demonstration worthy of a
Solomon by which the colt was able to testify by manifesting all the signs of the young, whether
human or not, on finding a long lost mother. (U. S. vs. Caralipio and Fernando [1911], 18 Phil. Rep.,
421.)
If we are to accept the evidence of the prosecution as true, then we must conclude that the
defendant stole the colt. The presumption of stolen property prima facie proof of guilt, would work
against the accused. (U. S. vs. Soriano [1907], 9 Phil. Rep., 445; U. S. vs. Lopez [1914], 25 Phil.
Rep., 589) We are convinced that the defendant is guilty as charged.
The lower court found that the accused had previously been convicted of the same crime. The court
thereupon in view of the value of the colt, P34, which would bring the facts within the provisions of
paragraph 3 of article 518 of the Penal Code, in view of article 520 of the same Code as amended
which would raise the penalty to the one next higher in degree, and in view of the fact that the
accused was a recidivist which would raise the penalty to the maximum, sentenced the accused to
four years two months and one day of presidio correccional, to the accessories of the law, and to pay
the cost. This judgment is affirmed with the addition of an order to return the property stolen to its
owner if not already done, or to reimburse the owner in the amount of P34, or to suffer subsidiary
imprisonment in case of insolvency, with the costs of this instance. So ordered.

[G. R. No. 130331. November 22, 2000]

OPLE OF THE PHILIPPINES, plaintiff-appellee, vs. ADEL TUANGCO, NELSON PINEDA, JR. and
SONNY TUANGCO, accused.
ADEL TUANGCO and SONNY TUANGCO, accused-appellants.
DECISION
PER CURIAM:

The Information in Criminal Case No. 95-1609(M) states:

"That on or about January 3, 1995, between 7:30 to 8:30 in the evening, in Sitio Dalan Baka,
Barangay Sulipan, Municipality of Apalit, Province of Pampanga, Philippines and within the
jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another, did then and there, wilfully, unlawfully and feloniously, with intent to
gain which came as an afterthought to them after executing their primordial intent to rape and kill
victim AUREA EUGENIO, took and carried away her wrist watch, three rings, earrings, P3,000.00
cash money and camera, the total value of which amounts to P20,000.00, to the damage and
prejudice of her heirs.
The commission of this offense added ignominy to the natural effects of the crime."
whereas the Information in Criminal Case No. 95-1610 (M) reads:
"That on or about January 3, 1995, between 7:30 to 8:30 in the evening, in Sitio Dalan Baka,
Barangay Sulipan, Municipality of Apalit, Province of Pampanga, Philippines, and within the
jurisdiction of this Honorable Court, the above-named accused conspiring, confederating and
mutually helping one another, with evident premeditation, abuse of superior strength and taking
advantage of nighttime, did then and there willfully, unlawfully, feloniously and with lewd design
dragged Aurea Eugenio, reclined her in a tree, opened wide her thighs, inserted a bottle of Pidol
syrup in her vaginal canal and forcibly took turns in having sexual intercourse with her against her
will, after which, and by reason of such rape accused with intent to kill, did then and there, wilfully,
unlawfully and feloniously stabbed several times Aurea Eugenio in her neck which caused her death.
That the commission of this offense was attended by the aggravating circumstance of evident
premeditation, use of superior strength, nighttime which was purposely sought by the accused to
facilitate and insure its commission.
CONTRARY to Article 335 of the Revised Penal Code as amended by Republic Act No. 2632 and
Republic Act No. 411."[2]
Adel Tuangco was arraigned on June 5, 1995; he pleaded not guilty to both charges. In the
course of the trial accused Sonny Tuangco was apprehended and also pleaded not guilty. Nelson
Pineda, Jr. remains at large.
The principal evidence against the accused consisted of the testimony of an eyewitness,
Silvestre Sanggalan, a deaf-mute. He gave his testimony through sign language, which was
interpreted by a sign language expert. The court's summation of the evidence is as follows:
"On January 3, 1995 at around 6:00 o'clock in the evening, he was inside a 'beer house' along the
national highway. He had seven (7) companions at that time. (TSN, July 10, 1995, pp. 55-57). The
group consisting of eight (8) persons including the witness arrived at the said place at day time.
When nighttime came, witness Sanggalan together with three (3) of his companions left the place
and proceeded to a rice field near the highway. (Ibid, p. 58). Sanggalan described and identified the
said three (3) other persons as a) tricycle driver with tatoos over his body and scars on his arms; b)
a person with a long chin and known as 'Baba' and c) accused Adel Tuangco. Sanggalan stepped
down from the witness stand and identified accused Adel Tuangco as one of the three (3) other
persons together with whom, he went to the rice field. (Ibid, pp. 58-59). The tricycle driver with tatoos

over his body and the person with an elongated chin were not inside the court room at the hearing of
these cases on July 10, 1995. Accused Adel Tuangco and the person with elongated chin are
brothers. (Ibid, p. 60).

2. Three (3) in number, gaping, within an area of 6.0 x 5.0 cms. one end is contused, the other is
sharp, located on the right side of the neck; directed medially involving the skin, blood vessels,
hitting the trachea with depths from 2.4 cms.

The group of eight (8) persons were drinking beer and gin inside the 'beer house'. When night time
came, Sanggalan, accused Adel Tuangco, the person with tatoos over his body and the one with
elongated chin proceeded to the rice field where there was a waiting shed in which they stayed for a
while. Inside the waiting shed, the person with tatoos over his body, known as 'Tatoo', and the one
with elongated chin, known as 'Baba', took Pidol cough syrup. (Ibid, pp. 61-65). They went to the rice
field because they were very drunk. (Ibid, pp. 66). The four (4) stayed at the waiting shed until 8:00
o'clock in the evening. (TSN, July 21 , 1995, p. 12).

Brain and visceral organs-very pale

The three, accused Adel Tuangco, 'Baba' and 'Tatoo' later left the waiting shed and went to the rice
field to follow a girl who was wearing a long hair. Through photographs of the deceased Aurea
Eugenio, witness Sanggalan identified her to be the girl whom the three followed into the rice field.
(Ibid, pp. 14 and 27-28). As soon as they caught up with the deceased, Tatoo' pushed her. Adel
Tuangco got hold of the shoulder bag which the deceased Aurea Eugenio was carrying at that time.
'Baba' and 'Tattoo' then pushed Aurea against a tree and stabbed her with a knife several times on
the neck. At this point, Adel Tuangco joined the two and also stabbed the deceased. The deceased
fell down. (Ibid, pp. 15-19).
After the deceased fell down on the ground, 'Tatoo' inserted a bottle of Pidol cough syrup into her
private parts. Then 'Baba' pushed the bottle further into the private parts of the deceased. While the
bottle was being pushed, Adel Tuangco was hugging the deceased who at that time was still alive
and resisting the assault. Together, the three removed the blouse, bra, skirt and panty of Aurea
Eugenio. Adel Tuangco raped the deceased. 'Tatoo' and 'Baba' likewise successively raped Aurea in
that order. (Ibid, pp. 19-23). At the time that the three accused were raping Aurea Eugenio, witness
Sanggalan was about three and one half (3) meters away from them. While Adel Tuangco was
raping the victim, 'Tatoo' and 'Baba' were beside them. When 'Baba' and 'Tatoo' took their respective
turns in raping the victim the other two were holding her hands. (Ibid, pp. 24-25).
After raping the victim, Adel Tuangco took her bag, 'Tatoo' got her camera and cash money while
'Baba got her ring, earrings and watch. (Ibid, pp. 25-26). After the incident, 'Tatoo' and 'Baba' went to
the rice field while Adel Tuangco went to the other direction. (Ibid, p. 29). Earlier, during the incident,
Adel Tuangco, 'Tatoo' and 'Baba', on two occasions, asked witness Sanggalan to leave. However,
the witness merely hid behind the grasses and trees. (Ibid, p. 30 and TSN, August 7, 1995, p. 31).
When recalled to the witness stand on January 17, 1996, Sanggalan identified accused Sonny
Tuangco as the one he referred to as 'Baba'.[3]
Dr. Dominic Aguda, a medico legal officer at the National Bureau of Investigation, conducted
an autopsy of the victim and made the following findings:
"Pallor, marked and generalized
Hematoma- 7.0 x 5.0 cms. left frontal region, head; 3.0 x 2 cms. right frontal region head; 7.0 x 6.0
cms. right auricular region; 4.0 x 2.0 cms. right palm; 3.0 x 2.0 cms., left palm 2.0 x 2.0 cms.
chest; 3.0 x 2.0 cms. chin
Abrasion- 3.0 x 2.0 cms., right chin; 2.0 x 1.0 cms. right breast 2.0 x 2.0 cms. left breast.
Lacerated wound. 2.5 cms. pre-auricular area, left
Stab Wounds1. Six (6) in number, gaping, within an area of 9.0 x 6.0 cms. located on the left side of the neck
directed medially involving the skin, blood vessels, lacerating the throat and esophagus, with depths
from 2-5 cms. One end is contused the other is sharp.

Heart chambers- contain a very small amount of dark clotted blood.

Stomach- empty
Hymen- fresh lacerations on all sides with an opening of about 4.0 x 3.0 cms., massive blood clots
accumulated within vaginal canal.
Perineum- V- shaped median laceration measuring about 5.0 cms. (Exhibit "E")
Dr. Aguda explained the nature of the fresh lacerations on the hymen of the victim as well as the
massive blood clots accumulated within the vaginal canal. He testified that these injuries were
caused not only by human penis that penetrated the hymen but by a hard foreign object like a bottle.
(Ibid, p. 30). The abrasions on the left and right breast could have been caused by human bites.
(Ibid, p. 25). The stab wounds described as gaping and the stab wounds located within the neck
area were inflicted on the victim by her assailant using a single bladed weapon. (Ibid, p. 26). It is
very possible that the victim was sexually abused. (Ibid, p. 31 ). The heart chambers of the victim
contained very small amount of dark clotted blood, which means there was not enough blood
anymore in the heart as the victim suffered massive bleeding. This was due to the nine (9) stabbed
wounds inflicted on the neck of the victim. The proximate cause of death of the deceased was
severe hemorrhage secondary to multiple stab wounds. (Ibid, pp. 34-35). The abrasions and
hematomas on the body of the victim are indications of struggling during the sexual attack on the
victim. (Ibid, p. 34).[4]
Both accused denied the charges. Adel Tuangco testified that he was at home in the evening
in question, a defense which was corroborated by his common-law wife Liza Reyes Tuangco, [5]by his
mother, Erlinda Dizon Tuangco[6] and his sister Glessen. For his part Sonny Tuangco claimed he was
alone in his house at Balungao, Calumpit, Bulacan in the evening of January 3, 1995.[7]
The trial court made the following findings of facts:
"From the evidence adduced in these cases, it was established thatThe victim Aurea Eugenio, single and a resident of Sitio Dalan Baka, Barangay Sulipan, Apalit
Pampanga was working as a bookkeeper in Centro Escolar University Credit Cooperative located at
the City of Manila.
On January 3, 1995, the first working day of the year, she reported to office bringing with her a
Kodak camera to take pictures of her officemates for souvenir. At about 5:00 o'clock in the afternoon
of the same day, she told her officemates that she will go to their house in Apalit, Pampanga
although she was not scheduled to do so as it was an ordinary week day. She brought with her, the
camera and the P3,000.00 cash money to be spent on the occasion of their town fiesta. From the
office, she proceeded to the terminal of Victory Liner Bus at Caloocan City, where, at 6:00 o'clock in
evening, she boarded Victory Liner Bus No. 272.
Between 7:00 and 7:30 o'clock in the evening, the bus stopped at Sitio Dalan Baka, Barangay
Sulipan, Apalit, Pampanga where the victim Aurea Eugenio alighted. From the national highway, the
house of the victim was about three hundred (300) meters away. Although lights can be seen from
the said house, it was very dark and silent on the road going to the same and coming from the
highway. On either side of the road were tall grasses and trees. On the side of the highway was a
waiting shed. Inside the waiting shed were four (4) persons. They were three (3) accused, namely,

Adel Tuangco y Dizon, his brother Sonny Tuangco y Dizon alias 'Baba' and Nelson Pineda, Jr. alias
'Jun Tattoo' and the prosecution eye witness Silvestre Sanggalan alias 'Popoy, alias 'Pipi'.
Earlier, at around 6:00 o'clock in the evening of the same day, the three (3) accused and witness
Sanggalan were inside a 'beer house' located along the national highway at Calumpit, Bulacan,
drinking beer and gin. Together with four (4) other persons, they started their drinking spree when it
was still daytime. When nighttime came, the three (3) accused and witness Sanggalan left their
companions and proceeded to a rice field near the highway. They stayed in the waiting shed located
at the opposite side of the road where the victim Aurea Eugenio alighted. The four (4) went to the
rice field because they were already drunk. While inside the waiting shed, accused Sonny Tuangco
and Nelson Pineda took Pidol cough syrup.
The three (3) accused left the waiting shed and went to the rice field to follow the victim who had
already crossed the national highway and was walking towards her house. The three (3) accused
asked Sanggalan to leave. However, instead of leaving, Sanggalan hid behind the bushes and trees,
thus, he was able to witness the incident in question.

1. In Criminal Case No. 95-1609(M), the said accused are convicted of Theft and hereby sentenced
to suffer the indeterminate penalty ranging from six (6) months of arresto mayor as minimum to two
(2) years, eleven (11) months and ten (10) days of prision correccional as maximum; the said
accused are likewise ordered to indemnify the heirs of the victim Aurea Eugenio, jointly and
severally, the amount of P3,000.00.
2. In Criminal Case No. 95-1610(M), the aforesaid accused are convicted of two (2) special complex
crimes of Rape with Homicide and each of them is hereby sentenced to two (2) death penalties; both
of them are ordered, jointly and severally, to indemnify the heirs of the victim Aurea Eugenio the sum
of P105,150.00 as actual damages, and the further sums of a) P50,000.00 for the victim's death, b)
P100,000.00 as moral damages and c) P50,000.00 as exemplary damages, or a total of P200,000,
in each of the two (2) crimes which they have separately committed and each shall pay one-half ()
of the costs.
SO ORDERED.[9]
The case is before this Court on automatic review.

As soon as the accused caught up with the victim, Nelson Pineda, Jr. pushed her while Adel
Tuangco got hold of her shoulder bag. Sonny Tuangco and Nelson Pineda pushed the victim Aurea
Tuangco against a tree and stabbed her several times in the neck. At this point, Adel Tuangco joined
the two (2) and he also stabbed the victim until she fell down. As the victim was lying on the ground,
Nelson Pineda inserted the bottle of Pidol cough syrup in her private parts. Sonny Tuangco further
pushed the bottle into the body of the victim. While the bottle was being pushed, Adel Tuangco was
hugging the victim who was still alive and resisting the assault being made against her person.
Together, the three (3) accused removed the blouse, bra, skirt and panty of Aurea Eugenio.
Thereafter, Adel Tuangco, Nelson Pineda, Jr. and Sonny Tuangco, in that order, successively raped
the victim. While Adel Tuangco was raping the victim, the two (2) other accused were beside him.
When Nelson Pineda, Jr. and Sonny Tuangco were taking their respective turns in raping the victim,
the two (2) other accused were holding her hands.
After raping the victim, Adel Tuangco took her bag, Pineda got her camera and cash money while
Sonny Tuangco got her ring, earrings and watch. Thereafter, Nelson Pineda, Jr. and Sonny Tuangco
went to the rice field while Adel Tuangco proceeded to the opposite direction.
The body of the victim was already stiff when found by witness Michael Enriquez the following day
lying on the rice field owned by his grandfather, Ignacio Enriquez. The body was lying on its back
with the hands upraised, the blouse raised upwards and naked from the waist down. The private
parts of the victim had an opening of about two (2) inches and with blood all over it.
The fresh lacerations on the hymen of the victim as well as the massive blood clots accumulated
within the vaginal canal were caused not only by human penis that penetrated her private parts but
by hard foreign object like a bottle. The abrasions on the breast of the victim could have been
caused by human bites. The stab wounds located within the neck area of the victim were inflicted by
her assailant using a single bladed weapon. The nine (9) stab wounds in the neck induced severe
hemorrhage which was the proximate cause of the victim's death. The abrasions and hematomas on
the body of the victim are indications of struggling during the sexual attack on the victim."[8]

The Public Attorney's Office submits the following assignment of errors in the appellants' brief:
I
THE TRIAL COURT GRAVELY ERRED IN GIVING FULL FAITH AND CREDENCE TO THE
ALLEGED EYEWITNESS ACCOUNT OF SILVESTRE SANGGALAN WHO IS A DEAF-MUTE AND
UNSCHOOLED.
II
THE TRIAL COURT GRAVELY ERRED IN FINDING BOTH ACCUSED-APPELLANTS GUILTY
BEYOND REASONABLE DOUBT OF TWO (2) COUNTS OF SPECIAL COMPLEX CRIME OF
RAPE WITH HOMICIDE AND THEFT."[10]
In discrediting the testimony of the deaf-mute eyewitness, accused- appellant points out that
because Silvestre Sanggalan has had no formal schooling in a special school for deaf-mutes, the
possibility that resort to conjectures and surmises, brought about by overzealousness to understand
what his witness really wanted to say could not be discounted. Thus, accused-appellant cites certain
portions of Sanggalan's testimony which appeared unclear, e.g., the witness admitted that the place
where the incident happened was "very dark", and he was inconsistent as to who, between Adel
Tuangco or Jun Tatoo, was the first to rape the victim. Thus, his handicap prevented a truthful
narration of what really transpired.
The Solicitor General prays for an affirmance of the decision in all respects. He asserts that a
deaf-mute is qualified to testify, and the interpreter explained that through sign language, Sanggalan
demonstrated how Eugenio was raped and thereafter killed by appellants and Pineda, Jr. It is
claimed that the inconsistencies pointed out are minor and do not detract from the positive
identification made by witness Sanggalan of the accused-appellants as the persons who raped and
killed Eugenio and took her personal effects.

The trial court ruled that the guilt of the accused as charged was established with the required
quantum of evidence and concluded that the three accused conspired to commit the crimes charged.
The accused were sentenced as follows:

After a very careful examination of the evidence of record, we resolve to affirm the judgment of
conviction. We find no cogent justification to disturb or set aside the finding of the trial court
upholding the credibility of the deaf-mute witness, on the following rationalization:

"WHEREFORE, the Court finds the accused Adel Tuangco y Dizon and Sonny Tuangco y Dizon
guilty beyond reasonable doubt as principals of the crime of theft defined in Article 309 in relation to
Article 308 of the Revised Penal Code and of the crime of Rape with Homicide defined in Article 335,
as amended, of the same Code and hereby renders judgment as follows:

"This Court, cognizant of the physical handicap of the eyewitness Silvestre Sanggalan, carefully
scrutinized his testimony and noted that the same were made, on several occasions from July 10,
1995 when he was called for the first time to testify until July 5, 1996 when he was recalled for the
purpose of cross-examination on behalf of accused Sonny Tuangco, in a candid and straightforward
manner. While the Court observes minor inconsistencies in his declarations, these are not reasons
to render his testimony incredible. On the contrary, it is well-established that minor inconsistencies in

the testimony of a witness are indications that the same is not rehearsed and all the more should be
considered credible. Thus, discrepancies in minor details indicate veracity rather than prevarication
and only tend to bolster the probative value of such testimony. (People vs. Mocasa, 229 SCRA 422).
This Court likewise evaluated very carefully, the qualifications and competence of Eva Sangco, the
sign language expert utilized by the prosecution and found the same to be sufficient to put on record
with accuracy, the declarations being made by witness Sanggalan on the witness stand. According
to Eva Sangco, sign language experts have different mode of communications. These are a) oral
method b) simultaneous method c) pantomine d) reverse interpretation e) speech reading f) natural
signs and gestures and g) interactive writings which are more on dramatization and drawing
illustrations. In the interpretation of the declarations of witness Sanggalan, Eva Sangco employed
the natural homemade sign method. Eva Sangco has undergone several trainings on this particular
method. (TSN, July 21, 1995, pp. 7-8).
In its futile attempt to destroy the credibility of witness Sanggalan, the defense attacked his character
and present a witness in the person of Merlita Baliber to show that he is a drunkard and a drug
addict. Likewise the defense presented documentary evidence (Exh. "3") to show that Sanggalan
had been accused of rape in a criminal case before the Regional Trial Court of Pasig, Rizal. These
evidence presented by the defense are unavailing. In People vs. Dominguez, 217 SCRA 170, it was
held that even a fact of prior criminal conviction alone does not suffice to discredit a witness. And in
People vs. Tanco, 218 SCRA 494, it was held that the mere pendency of a criminal case against a
person does not disqualify him from becoming a witness. For the test to measure the value of the
testimony of a witness is whether or not such is in conformity to knowledge and consistent with
experience of mankind. (People vs. Morre, 217 SCRA 219). This Court finds it unnecessary to
reiterate the earlier discussion as to why it gives credence to the testimony of witness Sanggalan.
If at all, the evidence of the defense with respect to the character of Sanggalan substantiated the
theory of the prosecution- that these people, witness Sanggalan, and the three (3) accused were
often times seen drinking liquor and taking prohibited drugs. No less than defense witness Merlita
Baliber testified that on one occasion, she saw witness Silvestre Sanggalan and accused Nelson
Pineda, Jr. going out of the 'beer house' to join their three (3) other companions walking along the
highway. That Baliber would deny that accused Adel Tuangco and Sonny Tuangco were among
those people, is expected. For, as admitted by Baliber, she was asked by the mother of accused
Adel Tuangco and accused Sonny Tuangco to testify in these proceedings to help the said accused.
(TSN, February 7, 1996, p. 35). Then too, the demeanor by which Baliber was testifying immediately
casts doubt on her motive for taking the witness stand and renders incredible her testimony. Thus,
on several times at the witness stand, she had been observed smiling and not candid with her
declarations. (TSN, February 7, 1996, p. 13). On one occasion, after stating that Adel Tuangco and
Sonny Tuangco have nothing to do with the rape-slay of Aurea Eugenio, witness Baliber immediately
laughed. (Ibid, pp. 25-26).[11]
The theory of the accused-appellant that Sanggalan "could not truthfully and convincingly
convey what really transpired on that fateful night" because he had no formal schooling in a school
for special persons like him and the interpreter was not the one who had taught him is not tenable.
A deaf-mute is not incompetent as a witness. All persons who can perceive, and perceiving,
can make known their perception to others, may be witnesses. [12] Deaf-mutes are competent
witnesses where they (1) can understand and appreciate the sanctity of an oath; (2) can
comprehend facts they are going to testify on; and (3) can communicate their ideas through a
qualified interpreter.[13] Thus, in People vs. De Leon [14]and People vs. Sasota,[15] the accused was
convicted on the basis of the testimony of a deaf-mute. Although in People vs. Bustos[16] the
testimony of a deaf-mute was rejected, this was because there were times during his testimony that
the interpreter could not make out what the witness meant by the signs she used. In the instant
case, the interpreter was a certified sign language interpreter with twenty-two (22) years teaching
experience at the Philippine School for the Deaf, had exposure in television programs and had
testified in five other previous court proceedings. She possessed special education and training for
interpreting sign language. The trial court evaluated her competence to put on record with accuracy
the declaration made by witness Sanggalan on the witness stand, and she testified that she
employed the natural or homemade sign method.[17] Needless to stress, the manner in which the

examination of a deaf-mute should be conducted is a matter to be regulated and controlled by the

trial court in its discretion, and the method adopted will not be reviewed by the appellate court in the
absence of a showing that the complaining party was in some way injured by reason of the particular
method adopted.[18] The imperfections or inconsistencies cited in appellants' brief arise from the fact
that there is some difficulty in eliciting testimony where the witness is deaf-mute, but these do not
detract from the credibility of his testimony, much less justify the total rejection of the same. What is
material is that he knew personally the accused-appellants, was with them on the fateful night when
the incident happened, and had personally witnessed the rape-slay and theft three and (3 )
meters away from the scene. He did not waver in the identification of the three accused despite
rigorous cross-examination, and positively pointed to the accused-appellants as the persons who
raped and killed Eugenio and took her personal effects.[19] The trial court's assessment of the
credibility of Sanggalan, whose testimony was found to be candid and straightforward, deserves the
highest respect of this Court.
Moreover, the testimony of Sanggalan was corroborated by the doctor who conducted the
autopsy. Dr. Aguda testified that Eugenio had nine (9) stab wounds on the neck, fresh hymenal
lacerations and massive blood clots within the vaginal canal, caused, among others, by the entry of
a hard foreign object like a bottle and that the abrasions and hematomas on the cadaver indicated
that Eugenio struggled during the assault.[20]
The defense of alibi must yield to the positive identification of the accused-appellants by
Sanggalan, and the attempt of the mother of the accused-appellants, Erlinda Tuangco, a sister,
Glessen Tuangco, and the common-law wife of Adel Tuangco, Liza Reyes, to corroborate such a
defense must fail. Moreover, no proof was adduced to show the physical impossibility of the accused
being at the scene of the crime; the evidence shows that the rape-slay took place in Sitio Dalan
Baka, Barangay Sulipan, Municipality of Apalit, Pampanga, which was ten to fifteen minutes from the
residence of Adel Tuangco in Frances Bukid, Calumpit, Bulacan. [21] In the case of Sonny Tuangco,
who went into hiding after learning that his brother Adel was arrested, and who stayed with a relative
in Caloocan City for about one (1) year until he was apprehended by the police authorities, [22] his
flight should be taken as an admission of his guilt.
We also find no cogent reason to disturb the finding of conspiracy among the accusedappellants as rationalized by the trial court thus:
"First, they were together drinking in a pubhouse from where they proceeded to the rice field and
stayed inside a nearby waiting shed.
Second, as soon as the victim was seen walking towards her house, the three (3) accused
immediately followed her.
Third, when they caught up with the victim, they simultaneously attacked her by stabbing her neck
with bladed weapon. Thereafter, when the victim fell down, the accused aided each other in raping
the victim.
Fourth, before fleeing from the scene of the crimes, the accused took the victim's cash money and
personal belongings."[23]
The imposable penalty for the rape with homicide is death. Pursuant to Article 335 of the
Revised Penal Code, as amended by Section 11 of the Republic Act No. 7659, "when by reason or
on the occasion of the rape, a homicide is committed, the penalty shall be death". Because of the
finding of conspiracy in the commission of the complex crime of rape with homicide, the imposition of
two death penalties upon each of the accused-appellants is correct.[24]
The imposable penalty for theft is prision correcional in its minimum and medium period, if the
value of the thing stolen is more than P200.00 but does not exceed P6,000.00. In this case, the
amount of P3,000.00 which is the cash taken from the victim, was the only amount proven, as the
value of the other objects taken was not established. Thus, the trial court correctly imposed an
indeterminate penalty of six (6) months of arresto mayor as minimum to two (2) years, eleven (11)
months and ten (10) days of prision correcional as maximum.

The civil indemnity must also be modified in line with prevailing jurisprudence. [25] Thus, the civil
indemnity ex delicto should be P100,000.00 for the victim's death. The award of exemplary damages
is justified in view of the presence of the aggravating circumstances of cruelty, as the insertion of the
bottle into the private part of the victim caused unnecessary moral and physical pain while the victim
was still alive.
Four justices of this Court, however, have continued to maintain the unconstitutionality of
Republic Act No. 7659 insofar as it prescribes the death penalty; nevertheless, they submit to the
ruling of the majority to the effect that the law is constitutional and that the death penalty can be
lawfully imposed in the case at bar.

WHEREFORE, the judgment convicting Adel Tuangco y Dizon and Sonny Tuangco y Dizon for
the crimes of theft and rape with homicide in Criminal Case Nos. 95-1609(M) and 95-1610(M) is
hereby affirmed with the modification that the civil indemnity ex delicto is increased to P100,000.00.
Upon finality of this decision, let certified true copies thereof, as well as the records of this
case, be forthwith forwarded to the Office of the President for possible exercise of the pardoning
power.
SO ORDERED.