CARLOS CARPIO v.

PEOPLE
244 Phil. 555 "Thereafter, residents of the Barangay Slip Zero sought the assistance of one Patrolman Rodolfo Perez,
NARVASA, J.: assigned as Officer-in-Charge of Desk II, Western Police District at about 5:00 o'clock in the afternoon
Petitioner Carlos Carpio seeks reversal of the decision of the Sandiganbayan finding him guilty beyond (Exhibit "1", TSN, id., p. 4).
reasonable doubt of the felony, of Violation of Domicile under Article 128 of the Revised Penal Code and
accordingly sentencing him to an indeterminate penalty ranging from four (4) months and twenty-one "Accompanied by Sgt. Rodolfo Perez and his men, petitioner went to the house of complainant to arrest
(21) days of arresto mayor, as minimum, to one (1) year, one (1) month and eleven (11) days of prision her husband, Reynaldo Abalos and the others responsible for destroying the house of the former (TSN, id.,
correccional, as maximum. p. 42).

The indictment upon which he was arraigned and tried stated that "on or about March 13, 1982, in the "Complainant Corazon Abalos, who was found therein refused petitioner and the other peace officers
City of Manila, ** (Carpio,) being then the Barangay Chairman of Barrio Slip. Zero, Kagitingan Extension, entry to the house, and instead uttered defamatory words **.
Tondo, ** and therefore a public officer, while in the performance of, and in relation to his official duties
as such, without any justifiable order, did ** enter and conduct illegal search inside the dwelling of "Unable to arrest Reynaldo Abalos and company, petitioner together with Sgt. Perez and company,
Corazon Abalos y Masaca located at 971 Kagitingan Ext., Tondo, ** by forcing his way in purportedly proceeded to the police station to enter the same at the police blotter and at the same time sought police
looking for a certain 'Mundong' against the will and without the previous consent of Corazon Abalos y protection against the former (TSN, id., p. 44)."
Masaca."
The aforementioned Pat. Enrico Cruz is the brother-in-law of Corazon Abalos. For his part in the "raid" and
The record discloses the testimony of the complaining witness, the aforesaid Corazon Abalos, to the effect the destruction of the store and house of Carpio, an administrative complaint was filed by the latter
that in the morning of March 13, 1982, Barangay Chairman Carpio had indeed gone to the house where against him with the NAPOLCOM for grave misconduct.
she and her husband, Reynaldo Abalos (alias "Long Hair") were residing. According to her, Carpio entered
her residence unannounced and without any warrant, and looked around for a certain "Mundong," It was after these events on the fourteenth of March had transpired, and an administrative complaint for
staying in the house for five minutes or so. She gave no reason why Carpio was searching for Mundong. [1] grave misconduct had been filed with the NAPOLCOM against her brother-in-law, Pat. Cruz, that, to
repeat, Corazon Abalos presented her own complaint against petitioner Carpio for violation of domicile.
The record reveals, too, that Corazon Abalos' complaint against Carpio was not filed until after certain Parenthetically, a similar complaint was also filed against Carpio by Oscar Aglinao, brother of one of the
occurrences had taken place. These occurrences are summarized in the Solicitor General's brief as follows: "raiders" (Victor Aglinao), but Carpio's prosecution therefor resulted in his acquittal by
the Sandiganbayan.[2]
"(O)n March 14, 1982, at about 4:00 o'clock in the afternoon, ** (Carpio) was summoned in his house at
923 Kagitingan Extension ** by the residents who were playing basketball in a nearby basketball court The Sandiganbayan however found Carpio guilty of the charge preferred by Corazon Abalos. In convicting
(TSN, Dec. 21, 1982, p. 31). The latter informed him that one Reynaldo Abalos a.k.a. 'Long Hair,' husband Carpio, the Sandiganbayan relied on Corazon's sole testimony; and that testimony referred to Carpio's
of complainant Corazon Abalos, was brandishing his bolo in public (TSN, id., p. 32). As petitioner went out alleged criminal intrusion into Corazon's residence on the 13th of March, a day before the occurrence of
of his house, he saw Abalos in a small alley, by the makeshift basketball court, about 6 to 7 meters away the events giving rise to the cause to look for and arrest her husband and/or his companions.
from him, making a show out of his bolo **. In the performance of his duty to preserve peace in the area
as barangay chairman, petitioner admonished Reynaldo Abalos of the consequences of his actions and the No persuasive reason is given by the Trial Court for disregarding the facts on record, established by the
** danger that the same may cause the bystanders and the public. Abalos merely responded by looking at evidence of the defense. This is surprising specially in the light of the Lower Court's observations in its
petitioner without a word and walked towards his own house (TSN, id., p. 33). decision respecting corroboration of Carpio's evidence by Sgt. Rodolfo Perez, who has not been shown to
be other than a neutral witness, having no motive to falsify his testimony. [3] According to
"As petitioner pursued Abalos, he saw complainant Abalos, complainant's cousin, Victor Aglinao, and 20 the Sandiganbayan [4]
other persons armed with bladed weapons, pipes and bolos, blocking his way (TSN, id., pp. 34 and 36).
Compelled to save his life and limb, petitioner cried for help, and immediately some residents went to his "Sgt. Rodolfo Perez corroborated the testimony of accused that he responded to a call for police
succor and accompanied him home safely (TSN, id., p. 36). assistance at Barrio Slip Zero ** and there, upon arrival, he found that a riot was in progress. He also saw
the damage caused on the house of the accused, which the latter claimed were the handiwork of a certain
"Unable to retaliate physically on the person of petitioner for the previous incident wherein petitioner Mundong and other persons. When he asked the accused where they can find said Mundong, he was led
publicly reprimanded him, Abalos and company (one Mundo, Victor Aglinao **, Boy Kulot and others), to the place of Corazon Abalos. There he saw Pat. Cruz in front of Corazon's house, who told him, in
abetted by one Patrolman Enrico Cruz, proceeded to petitioner's house, destroyed his store with the use answer to his inquiry to that effect, that Mundong had already left the place. They did not enter the house
of a crowbar, and hacked his house, with petitioner trembling with fear inside". The group threatened to of Corazon Abalos. Instead he advised the accused to lodge a complaint in Station 2."
kill petitioner as Patrolman Cruz watched. After ten (10) minutes, and petitioner's house destroyed, the
group left.
A conviction may, to be sure, be made to rest on the testimony of a single witness, provided he appears
otherwise trustworthy and, reliable. Corazon Abalos cannot however be so characterized as a witness. Not
only is her evidence belied by the proofs of the defense, inclusive of the testimony of impartial, objective
persons, it also makes no sense, since it describes a search for a friend of her husband and an illegal entry
into her house for that precise purpose by the barangay chairman, who had no conceivable reason for
doing so on that day.

Rejection of Corazon's testimony is thus called for. Indeed, it is not unreasonable to consider her
accusation a concocted one, designed "to counteract the petitioner's complaint against Pat. Enrico
Cruz"[6] in the NAPOLCOM considering that, as the Solicitor General points out, "she and her husband rely
for subsistence and support" on said Pat. Cruz.[7]

WHEREFORE, the appealed decision is hereby REVERSED AND SET ASIDE, and another entered
ACQUITTING petitioner Carlos Carpio of the offense charged.

SO ORDERED.

Yap, (C.J.,) Fernan, Melencio-Herrera, Gutierrez, Jr., Cruz, Paras, Feliciano, Gancayco, Padilla, Bidin,
Sarmiento, Cortes, and Griño-Aquino, JJ., concur.
EDIGARDO GEROCHE, ROBERTO GARDE and GENEROSO MARFIL alias "TAPOL", Petitioners, breast and left side of the body at the axilliary region.7 Dr. Cabrera opined that the injuries inflicted would
vs. heal from seven to ten days.8 For the defense, petitioners denied the crime charged, declaring in unison
PEOPLE OF THE PHILIPPINES, Respondent. that they were in their respective houses the entire evening of May 14, 1989. They alleged, however, that
the night before, on May 13, 1989, they conducted a roving footpatrol, together with other barangay
DECISION officials, due to the rampant cattle rustling in the area. At the time, they recovered a stolen carabao
owned by a certain Francisco Pongasi9 from three unidentified persons who managed to escape.
PERALTA, J.:
On November 15, 2001, the trial court found petitioners guilty beyond reasonable doubt of the crime of
1 2
This is an appeal from the Decision dated November 18, 2005 and Resolution dated June 19, 2007 of the Less Serious Physical Injuries under the Article 265 of the RPC. They were sentenced to suffer the penalty
Court of Appeals (CA) in G.R. CR No. 26418, which set aside the November 15, 2001 Decision 3 of the of imprisonment of arresto mayor maximum, that is, four (4) months and one (1) day to six (6) months.
Regional Trial Court (RTC), Branch 17, Kidapawan City, Cotabato. According to the RTC, the prosecution failed to prove that petitioners are public officers, which is an
essential element of Article 128 of the RPC. It held:
Petitioners Edigardo Geroche, Roberto Garde and Generoso Marfil alias "Tapol" were charged with the
crime of Violation of Domicile under Article 128 of the Revised Penal Code (RPC). 4 The Information dated The prosecution who has that onus probandifailed to prove one of the essential elements of the crime; on
May 3, 1990 reads: the issue of whether or not all the accused were public officers; while it is true that accused were named
CVO’s and the other as a barangay captain and that even if the same were admitted by them during their
testimony in open court, such an admission is not enough to prove that they were public officers; it is for
The undersigned accuses EDIGARDO GEROCHE, ROBERTO GARDE AND GENEROSO MARFIL Alias "TAPOL"
the prosecution to prove by clear and convincing evidence other than that of the testimony of witnesses
of the crime of Violation of Domicile, committed as follows:
that they werein fact public officers; there exist a doubt of whether or not all the accused were in fact and
in truth public officers; doubts should be ruled in favorof the accused; that on this lone and essential
That at about 10:00 o’clock in the evening of May 14, 1989, at Sitio New Lantawan, Barangay Greenhills,
element the crime charged as violation of domicile is ruled out; that degree of moral certainty of the
Municipality of President Roxas, Province of Cotabato, Philippines, the above-named accused EDIGARDO
crime charged was not established and proved by convincing evidence of guilt beyond reasonable doubt; x
GEROCHE, being a Barangay Captain and the rest being CAFGUs, hence, persons inauthority, conspiring,
x x.10 Petitioners elevated the case to the CA, which, on November 18, 2005, set aside the trial court’s
confederating and mutually helping one another, armed with garand rifles, did then and there, wilfully,
judgment. While it agreed with both parties that petitioners should not be convictedfor Less Serious
unlawfully and feloniously, without proper judicial order, entered the house of ROBERTO MALLO by
Physical Injuries, the CA still ruled that they are guilty of Violation of Domicile considering their judicial
forcibly breaking the door of said house against the will of the occupants thereof, search the effects of the
admissions that they were barangay captain (in the case of Geroche) and part of the Citizen Armed Forces
house without the previous consent of the owner and then mauled one of the occupant BARILIANO
Geographical Unit (in the case of Garde and Marfil). The dispositive portion of the assailed Decision states:
LIMBAG inflicting injuries to the latter.
WHEREFORE, pursuant to applicable law and jurisprudence on the matter and the evidence on hand, the
CONTRARY TO LAW.5
appealed decision is hereby SET ASIDE and a new one entered finding the accused-petitioners GUILTY
beyond reasonable doubt of the crime of Violation of Domicile under Article 128 of the Revised Penal
During the arraignment on November5, 1990, all the petitioners pleaded not guilty. 6 Thereafter, trial Code and sentencing them to an indeterminate penalty of Four (4) Months, One (1) Day of arresto mayor
ensued. maximum to Six (6) Months and One (1) Day of prision [correccional] minimum with the accessory penalty
of suspension from public office and from the right to follow a professionor calling pursuant to Article 43
Baleriano Limbag (Baleriano) testified that the crime happened around 10:00 o’clock in the evening of of the Revised Penal Code.
May 14, 1989 inside the house which he already bought from Roberto Mallo. He roused from sleep when
petitioners, who were not armed with search warrant, suddenly entered the house by destroying the SO ORDERED.11
main door. The petitioners mauled him, striking with a garand rifle, which caused his injuries. They looked
for firearms but instead found and took away his airgun. Roberto Limbag, Baleriano’s nephew who was
Petitioners’ motion for reconsideration was denied; hence, this petition. They argue that there is double
living with him, witnessed the whole incident and corroborated his testimony.
jeopardy since the trial court already acquitted them of Violation of Domicile and such judgment, being
now final and executory, is res judicata. Petitioners insist that their appeal before the CA is limited to their
Aside from presenting SPO4 Felomino Calfoforo, the Subpoena and Warrant Officer of President Roxas conviction for the crime of Less Serious Physical Injuries, focusing their arguments and defense for
Police Station who testified on the police blotter, Dr. Antonio Cabrera also took the witness stand for the acquittal from said crime, and that the CA violated their constitutional right to due process when it
prosecution. Essentially, he affirmed the medical certificate that he issued. His findings indicated that convicted them for Violation of Domicile.
Baleriano suffered hematoma on the left side of the nose, back portion of the body at the level of the hip
region, and back portion at the right side of the scapular region as well as abrasion on the right side of the
We deny.
An appeal in a criminal case opensthe entire case for review on any question including one not raised by Penal Code that if there are no other mitigating or aggravating circumstances attending the commission of
the parties.12 When an accused appeals from the sentence of the trial court,he or she waives the the crime, the penalty shall be imposed in its medium period.
constitutional safeguard against double jeopardy and throws the whole case open to the review of the
appellate court, which is then called upon to render such judgment as law and justice dictate. 13 An appeal On the other hand, the minimum term shall be within the range of the penalty next lower to that
confers upon the appellate court jurisdiction to examine the records, revise the judgment appealed from, prescribed by the RPC for the crime. The penalty next lower to that prescribed by Article 128 is arresto
increase (or reduce) the penalty, and cite the proper provision of the penal law. 14 The appellate court mayor in its maximum period to prision correccional in its minimum period (or 4 months and 1 day to 2
may, and generally does,look into the entire records to ensure that no fact of weight or substance has years and 4 months).
been overlooked, misapprehended, or misapplied by the trial court.15
The foregoing considered, in view of the attending circumstances in this case, the Court hereby sentences
Thus, when petitioners appealed the trial court’s judgment of conviction for Less Serious Physical Injuries, the petitioners to suffer the indeterminate penalty from two (2) years and four (4) months of prision
they are deemed to have abandoned their right to invoke the prohibition on doublejeopardy since it correccional, as minimum, to four ( 4) years, nine (9) months and ten (10) days of prision correccional, as
becomes the duty of the appellate court to correct errors as may be found in the assailed judgment. maximum.
Petitioners could not have been placed twice in jeopardy when the CA set aside the ruling of the RTC by
finding them guilty of Violation of Domicile as charged in the Information instead of Less Serious Physical WHEREFORE, the Court AFFIRMS the Decision dated November 18, 2005 and Resolution dated June 19,
Injuries. 2007 of the Court of Appeals in CAG.R. CR No. 26418 finding petitioners Edigardo Geroche, Roberto Garde
and Generoso Marfil alias "Tapol" guilty beyond reasonable doubt of Violation of Domicile, penalized
The Court adopts the findings of factand conclusions of law of the CA. In their testimony before the open under Article 128 of the Revised Penal Code, with the MODIFICATION that the penalty that should be
court as well as in the pleadings they filed, neither Geroche denied that hewas a barangay captain nor imposed is an indeterminate sentence from two (2) years and four (4) months of prision correccional, as
Garde and Marfil refuted that they were CAFGU members. In holding such positions, they are considered minimum, to four (4) years, nine (9) months and ten (10) days of prision correccional, as maximum.
as public officers/employees.16
SO ORDERED.
As to the penalty imposed by the CA, however, We modify the same. Under Article 128 of the RPC, the
penalty shall be prision correccionalin its medium and maximum periods (two [2] years, four [4] months
and one [1] day to six [6] years) if Violation of Domicile be committed at nighttime or if any papers or
effects not constituting evidence of a crime be not returned immediately after the search made by the
offender. In this case, petitioners barged in the house of Baleriano while they were sleeping at night and,
in addition, they took away with them his airgun.

In imposing a prison sentence for an offense punished by the RPC, the Indeterminate Sentence
Law17 requires courts to impose upon the accused an indeterminate sentence. The maximum term of the
prison sentence shall be that which, in view of the attending circumstances, could be properly imposed
under the rules of the said Code.1âwphi1 Yet the penalty prescribed by Article 128 of the RPC is
composed of only two, not three, periods. In which case, Article 65 of the same Code requires the division
into three equal portions the time included in the penalty, forming one period of each of the three
portions. Applying the provision, the minimum, medium and maximum periods of the penalty prescribed
by Article 128 are:

Minimum – 2 years, 4 months and 1 day to 3 years, 6 months and 20 days

Medium – 3 years, 6 months and 21 days to 4 years, 9 months and 10 days

Maximum – 4 years, 9 months and 11 days to 6 years

Thus, applying in this case, the maximum term should be within the medium period or from 3 years, 6
months and 21 days to 4 years, 9 months and 10 days, in light of the provisions of Article 64 of the Revised
GALVANTE VS HON. ORLANDO CASIMIRO 4. That raising my arms, I heard [private respondent] PO1 Avenido saying, ANG IMONG PUSIL,
DECISION IHATAG which means Give me your firearm, to which I answered, WALA MAN KO'Y PUSIL
translated as I have no firearm, showing my waistline when I raised my T-shirt;

AUSTRIA-MARTINEZ, J.: 5. That my other companions on the jeep also went down and raised their arms and showed
their waistline when the same policemen and a person in civilian attire holding an armalite also
Assailed herein by Petition for Certiorari and Mandamus under Rule 65 of the Rules of Court are the October 30, 2003 pointed their firearms to them to which Mr. Percival Plaza who came down from his house told
Resolution[1] of the Office of the Deputy Ombudsman for the Military and Other Law Enforcement Offices - Office of the them not to harass me as I am also a former police officer but they did not heed Mr. Plaza's
Ombudsman (Ombudsman) which dismissed for lack of probable cause the criminal complaint, docketed as OMB-P-C-02- statements;
0109-B, filed by Feliciano Galvante[2] (petitioner) against SPO4 Benjamin Conde, PO1 Ramil Avenido, PO1 Eddie Degran,
PO1 Valentino Rufano, and PO1 Federico Balolot (private respondents) for arbitrary detention, illegal search and grave 6. That while we were raising our arms [private respondent] SPO4 Benjamin Conde, Jr. went
threats; and the January 20, 2004 Ombudsman Order[3] which denied his motion for reconsideration. near my owner type jeep and conducted a search. To which I asked them if they have any search
warrant;
The facts are of record.
7. That after a while they saw my super .38 pistol under the floormat of my jeep and asked me
In the afternoon of May 14, 2001 at Sitio Cahi-an, Kapatungan, Trento, Agusan del Sur, private respondents confiscated of the MR of the firearm but due to fear that their long arms were still pointed to us, I searched
from petitioner one colt pistol super .38 automatic with serial no. 67973, one short magazine, and nine super .38 live my wallet and gave the asked [sic] document;
ammunitions.[4] The confiscated materials were covered by an expired Memorandum Receipt dated September 2, 1999.[5]
8. That immediately the policemen left me and my companions without saying anything
Consequently, the Assistant Provincial Prosecutor filed against petitioner an Information[6] for Illegal Possession of Firearms bringing with them the firearm;
and Ammunitions in Relation to Commission on Elections (COMELEC) Resolution No. 3258, docketed as Criminal Case No.
5047, before the Regional Trial Court (RTC), Prosperidad, Agusan del Sur. 9. That at about 2:30 p.m., I left Mr. Percival's house and went to Trento Police Station where I
saw a person in civilian attire with a revolver tucked on his waist, to which I asked the police
Pending resolution of Criminal Case No. 5047, petitioner filed against private respondents an administrative case, docketed officers including those who searched my jeep to apprehend him also;
as Administrative Case No. IASOB-020007 for Grave Misconduct,before the Internal Affairs Service (IAS), Region XIII,
Department of Interior and Local Government (DILG);[7] and a criminal case, docketed as OMB-P-C-02-0109-B for Arbitrary 10. That nobody among the policemen at the station made a move to apprehend the armed
Detention, Illegal Search and Grave Threats, before the Ombudsman.[8] civilian person so I went to the office of Police Chief Rocacorba who immediately called the
armed civilian to his office and when already inside his office, the disarming was done;
In the June 21, 2001 Affidavit-Complaint he filed in both cases, petitioner narrated how, on May 14, 2001,
private respondents aimed their long firearms at him, arbitrarily searched his vehicle and put him in detention, thus: 11. That after the disarming of the civilian I was put to jail with the said person by Police
Chief Rocacorba and was released only at 4:00 o'clock in the afternoon of May 16, 2001 after
1. That sometime on May 14, 2001 I left my house at around 1:00 oclock in the afternoon after posting a bailbond;
having lunch for Sitio Cahi-an, Brgy. Kapatungan, Trento, Agusan del Sur to meet retired
police Percival Plaza and inquire about the retirement procedure for policemen; 12. That I caused the execution of this document for the purpose of filing cases of Illegal Search,
Grave Misconduct and Abuse of Authority against SPO4 Benjamin Conde, Jr., of Trento Police
2. That upon arrival at the house of retired police Percival Plaza, together with Station; PO1 RamilAvenido, PO1 Velantino Rufano, PO1 Federico Balolot and PO1
Lorenzo Sanoria, Delfin Ramirez and Pedro Ramas who asked for a ride from the highway in Eddie Degran.[9]
going to Sitio Cahi-an, I immediately went down of the jeep but before I could call Mr. Plaza, four
policemen in uniform blocked my way; Petitioner also submitted the Joint Affidavit[10] of his witnesses, Lorenzo Sanoria and Percival Plaza.

3. That the four policemen were [private respondents] PO1 Romil Avenido PNP, PO1 Private respondent Conde filed a Counter-Affidavit dated March 20, 2002, where he interposed the following defenses:
Valentino Rufano, PNP both member of 142nd Company, Regional Mobile Group and PO1
Eddie Degran PNP and PO1 Federico Balolot PNP members of 1403 Provl Mobile Group, all First, he had nothing to do with the detention of petitioner as it was Chief of Police/Officer-in-Charge Police
of Bunawan Brook, Bunawan, Agusan del Sur; who all pointed their long firearms ready to fire Inspector Dioscoro Mehos Rocacorba who ordered the detention. Petitioner himself admitted this fact in his own
[at] me, having heard the sound of the release of the safety lock; Complaint-Affidavit;[11] and
Second, he denies searching petitioner's vehicle,[12] but admits that even though he was not armed with a warrant, he WHEREFORE, premises considered, it is hereby recommended that the above-captioned case
searched the person of petitioner as the latter, in plain view, was committing a violation of COMELEC Resolutions No. 3258 be DISMISSED for lack of probable cause.[21] (Emphasis supplied)
and No. 3328 by carrying a firearm in his person.
Upon the recommendation of Director Bienvenido C. Blancaflor, Deputy Ombudsman for the Military Orlando
Private respondents Avenido, Degran, Rufano and Balolot filed their Joint-Affidavit dated March 25, 2002, which C. Casimiro (Deputy Ombudsman) approved the October 30, 2003 Resolution.[22]
contradicts the statements of private respondent Conde, viz:
In his Motion for Reconsideration,[23] petitioner called the attention of the Ombudsman to the earlier IAS Decision, the
1. that we executed a joint counter-affidavit dated August 28, 2001 where we stated among other Reinvestigation with Motion to Dismiss of Prosecutor II Eliseo Diaz, Jr. and the RTC Order, all of which declared
things, that we saw Feleciano Nani Galvante armed with a handgun/pistol tucked on his waist; the warrantless search conducted by private respondents illegal,[24] which are contradicted by the October 30, 2003
2. that this statement is not accurate because the truth of the matter is that the said handgun was Ombudsman Resolution declaring the warrantless search legal.
taken by SPO4 BENJAMIN CONDE, JR., who was acting as our team leader during the May 14,
2001 Elections, from the jeep of Mr. Galvante after searching the same; and The Ombudsman denied petitioner's motion for reconsideration on the ground that the latter offered no new evidence
or errors of law which would warrant the reversal or modification[25] of itsOctober 30, 2003 Resolution.
3. that we noticed the aforementioned discrepancy in our affidavit dated August 28, 2001 after we
have already affixed our signatures thereon.[13] Petitioner filed the present petition, attributing to Deputy Ombudsman Casimiro, Director Blancaflor and Prosecutor
Garcia (public respondents) the following acts of grave abuse of discretion:
Consequently, petitioner filed an Affidavit of Desistance dated March 25, 2002 with both the IAS and Ombudsman,
absolving private respondents Avenido, Degran, Rufano and Balolot, but maintaining that private I. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of
respondent Conde alone be prosecuted in both administrative and criminal cases.[14] discretion amounting to lack or excess of jurisdiction when, in their Resolution dated October 30,
On July 17, 2002, the IAS issued a Decision in Administrative Case No. IASOB-020007, finding all private respondents guilty 2003, public respondents found that the incident upon which petitioner's criminal complaint was
of grave misconduct but penalized them with suspension only. The IAS noted however that private respondents were based stemmed from a valid warrantless arrest and dismissed petitioner's complaint despite the fact
merely being [enthusiastic] in the conduct of the arrest in line of duty. [15] that:

Meanwhile, in Criminal Case No. 5047, petitioner filed with the RTC a Motion for Preliminary Investigation and to Hold in A. Petitioner has clearly shown that the search conducted by the private respondents was
Abeyance the Issuance of or Recall the Warrant of Arrest.[16] The RTC granted the same in an Order[17] dated August 17, made without a valid warrant, nor does it fall under any of the instances of
2001. Upon reinvestigation, Prosecutor II Eliseo Diaz, Jr. filed a Reinvestigation with Motion to Dismiss dated November valid warrantless searches.
22, 2001, recommending the dismissal of Criminal Case No. 5047 on the ground that the action of the policemen who
conducted the warrantless search in spite of the absence of any circumstances justifying the same intruded into the privacy B. Notwithstanding the absence of a valid warrant, petitioner was arrested and detained by
of the accused and the security of his property.[18] Officer-in-Charge Prosecutor II Victoriano Pag-ong approved said the private respondents.
recommendation.[19]
II. Public respondents acted without or in excess of their jurisdiction and/or with grave abuse of
The RTC granted the prosecution's motion to dismiss in an Order[20] dated January 16, 2003. discretion amounting to lack or excess of jurisdiction when, in their Order dated January 20, 2004,
public respondents denied the petitioner's motion for reconsideration in a capricious, whimsical,
Apparently unaware of what transpired in Criminal Case No. 5047, Ombudsman Investigation & Prosecution Officer despotic and arbitrary manner. [26]
Dennis L. Garcia issued in OMB-P-C-02-0109-B, the October 30, 2003 Resolution, to wit: In its Memorandum,[27] the Office of the Solicitor General argued that public respondents acted within the bounds of their
discretion in dismissing OMB-P-C-02-0109-B given that private respondents committed no crime in searching petitioner
After a careful evaluation, the undersigned prosecutor finds no probable cause for any of the offenses and confiscating his firearm as the former were merely performing their duty of enforcing the law against illegal possession
charged against above-named respondents. of firearms and the COMELEC ban against the carrying of firearms outside of one's residence.
Private respondent Conde filed a Comment[28] and a Memorandum for himself.[29] Private
The allegations of the complainant failed to establish the factual basis of the complaint, it appearing respondents Avenido, Degran, Rufano and Balolot filed their separate Letter-Comment dated June 25, 2004.[30]
from the records that the incident stemmed from a valid warrantless arrest. The subsequent execution
of an affidavit of desistance by the complainant rendered the complaint even more uncertain and The petition lacks merit.
subject to doubt, especially so since it merely exculpated some but not all of the respondents. These The Constitution vests in the Ombudsman the power to determine whether there exists reasonable ground to
circumstances, coupled with the presumption of regularity in the performance of duty, negates any believe that a crime has been committed and that the accused is probably guilty thereof and, thereafter, to file the
criminal liability on the part of the respondents. corresponding information with the appropriate courts.[31] The Court respects the relative autonomy of the Ombudsman
to investigate and prosecute, and refrains from interfering when the latter exercises such powers either directly or through
the Deputy Ombudsman,[32] except when the same is shown to be tainted with grave abuse of discretion amounting to
lack or excess of jurisdiction.[33] and/or disciplinary and administrative, under Section 41 of Republic Act No. 6975.[37]

Grave abuse of discretion is an evasion of a positive duty or a virtual refusal to perform a duty enjoined by law or to act in To avail of such remedies, petitioner may file against private respondents a complaint for damages with the regular
contemplation of law as when judgment rendered is not based on law and evidence but on caprice, whim and courts[38] or an administrative case with the PNP/DILG,[39] as petitioner did in Administrative Case No. IASOB-020007, and
despotism.[34] This does not obtain in the present case. not a criminal action with the Ombudsman.

It is noted that the criminal complaint which petitioner filed with the Ombudsman charges private respondents Public respondents' dismissal of the criminal complaint for illegal search which petitioner filed with the Ombudsman
with warrantless search, arbitrary detention, and grave threats. against private respondents was therefore proper, although the reasons publicrespondents cited for dismissing the
complaint are rather off the mark because they relied solely on the finding that the warrantless search conducted by
The complaint for warrantless search charges no criminal offense. The conduct of a warrantless search is not a criminal act private respondents was valid and that the Affidavit of Desistance which petitioner executed cast doubt on the veracity of
for it is not penalized under the Revised Penal Code (RPC) or any other special law. What the RPC punishes are only two his complaint.[40] Public respondents completely overlooked the fact that the criminal complaint was not cognizable by the
forms of searches: Ombudsman as illegal search is not a criminal offense. Nevertheless, the result achieved is the same: the dismissal of a
groundless criminal complaint for illegal search which is not an offense under the RPC. Thus, the Court need not resolve
Art. 129. Search warrants maliciously obtained and abuse in the service of those legally obtained. - In the issue of whether or not public respondents erred in their finding on the validity of the search for that issue is completely
addition to the liability attaching to the offender for the commission of any other offense, the penalty hypothetical under the circumstance.
of arrestomayor in its maximum period to prision correccional in its minimum period and a fine not
exceeding P1,000.00 pesos shall be imposed upon any public officer or employee who shall procure a The criminal complaint for abitrary detention was likewise properly dismissed by public respondents. To sustain a criminal
search warrant without just cause, or, having legally procured the same, shall exceed his authority or charge for arbitrary detention, it must be shown that (a) the offender is a public officer or employee, (b) the offender
use unnecessary severity in executing the same. detained the complainant, and (c) the detention is without legal grounds.[41] The second element was not alleged by
petitioner in his Affidavit-Complaint. As pointed out by private respondent Conde in his Comment[42] and
Memorandum,[43] petitioner himself identified in his Affidavit-Complaint that it was Police Chief Rocacorbawho caused his
Art. 130. Searching domicile without witnesses. - The penalty of arresto mayor in its medium and
detention. Nowhere in said affidavit did petitioner allege that private respondents effected his detention, or were in any
maximum periods shall be imposed upon a public officer or employee who, in cases where a search
other way involved in it.[44] There was, therefore, no factual or legal basis to sustain the criminal charge for arbitrary
is proper, shall search the domicile, papers or other belongings of any person, in the absence of the
detention against private respondents.
latter, any member of his family, or in their default, without the presence of two witnesses residing in
the same locality.
Finally, on the criminal complaint for grave threats, the Solicitor General aptly pointed out that the same is based merely
on petitioner's bare allegation that private respondents aimed their firearms at him.[45] Such bare allegation stands no
Petitioner did not allege any of the elements of the foregoing felonies in his Affidavit-Complaint; rather, he accused private chance against the well-entrenched rule applicable in this case, that public officers enjoy a presumption of regularity in the
respondents of conducting a search on his vehicle without being armed with a valid warrant. This situation, while performance of their official function.[46] The IAS itself observed that private respondents may have been carried away by
lamentable, is not covered by Articles 129 and 130 of the RPC. their enthusiasm in the conduct of the arrest in line of duty.[47] Petitioner expressed the same view when, in his Affidavit of
Desistance, he accepted that private respondents may have been merely following orders when they pointed their long
The remedy of petitioner against the warrantless search conducted on his vehicle is civil,[35] under Article 32, in relation to firearms at him.
Article 2219[36] (6) and (10) of the Civil Code, which provides:
All said, public respondents did not act with grave abuse of discretion in dismissing the criminal complaint against private
Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, respondents.
defeats, violates or in any manner impedes or impairs any of the following rights and liberties of WHEREFORE, the petition is DENIED.
another person shall be liable to the latter for damages:
No costs.
xxxx
SO ORDERED.
(9) The right to be secure in ones person, house, papers, and effects against unreasonable
searches and seizures;

xxxx

The indemnity shall include moral damages. Exemplary damages may also be adjudicated.
THE PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. YOLANDA GESMUNDO, accused-appellant. 6. ID.; ID.; ID.; ID.; EXCEPTION. — The trial judge cites the case of Yee Sue Koy, et al. vs. Mariano Almeda,
et al. (70 Phil. 141) to justify the retention by the police and the NBI of the custody of the allegedly
The Solicitor General for plaintiff-appellee. confiscated specimens. While in said decision, this Court recognized the fact that the objects seized were
retained by the agents of the Anti-Usury Board, instead of being turned over to the Justice of the Peace of
Reynaldo M. Alcantara for accused-appellant. Sagay, yet the Court also held that it was "for the reason that the custody of said agents is the custody of
the issuing officer or court, the retention having been approved by the latter." Thus, approval by the court
which issued the search warrant is necessary for the retention of the property seized by the police
SYLLABUS
officers; and only then will their custody be considered custody of the court. Absent such approval, the
police officers have authority to retain possession of the marijuana and more so, to deliver the property
1. REMEDIAL LAW; EVIDENCE; IRRECONCILABLE CONTRADICTIONS IN TESTIMONIES OF PROSECUTION
to another agency, like the NBI.
WITNESSES CAST DOUBT ON GUILT OF ACCUSED. — Irreconcilable and unexplained contradictions in the
testimonies of the prosecution witnesses cast doubt on the guilt of appellant and his culpability to the
DECISION
crime charged. (People of the Philippines vs. Romeo F. Remorosa)

PADILLA, J p:
2. ID.; CRIMINAL PROCEDURE; SEARCH WARRANT; SEARCH MADE WITHOUT THE PRESENCE OF
OCCUPANT, HIGHLY IRREGULAR; CASE AT BAR. — The claim of the accused-appellant that the marijuana
was planted is strengthened by the manner in which the search was conducted by the police authorities. Appeal from the decision of the Regional Trial Court (RTC) of San Pablo City, Branch 30, * in Criminal Case
The accused-appellant was seated at the sala together with Sgt. Yte when they heard someone in the No. 4358-SP imposing the penalty of reclusion perpetua on the accused-appellant for violation of Section
kitchen uttered "ito na." Apparently, the search of the accused-appellant's house was conducted in 4, Article II of Republic Act No. 6425 (Dangerous Drugs Act of 1972), as amended; sentencing her to pay a
violation of Section 7, Rule 126 of the Rules of Court which specifically provides that no search of a house, fine of Twenty-Five Thousand (P25,000.00) pesos with subsidiary imprisonment in case of insolvency and
room or any other premise shall be made except in the presence of the lawful occupant thereof or any to pay the costs.
member of his family or in the absence of the latter, in the presence of two (2) witnesses of sufficient age
and discretion residing in the same locality. This requirement is mandatory to ensure regularity in the In the Information filed by Second Assistant City Fiscal Rogelio B. Javier of San Pablo City, it was alleged:
execution of the search warrant. Violation of said rule is in fact punishable under Article 130 of the
Revised Penal Code. "That on or about November 17, 1986, in the City of San Pablo, Republic of the Philippines and within the
jurisdiction of this Honorable Court, the accused above-named, did then and there wilfully, unlawfully and
3. ID.; ID.; ID.; ID.; VIOLATIVE OF THE SPIRIT AND LETTER OF THE LAW. — As we have ruled in Eduardo feloniously distribute and sell marijuana and confiscated in her possession is a plastic bag containing 100
Quintero vs. The National Bureau of Investigation, et al. a procedure, wherein members of a raiding party grams of dried marijuana leaves and three (3) rolls of magazine newspaper containing marijuana, a
can roam around the raided premises unaccompanied by any witness, as the only witnesses available as dangerous drug, without being authorized by law.
prescribed by law are made to witness a search conducted by the other members of the raiding party in
another part of the house, is violative of both the spirit and the letter of the law. CONTRARY TO LAW.

4. ID.; EVIDENCE; ADMISSION; OBTAINED IN VIOLATION OF RIGHTS OF THE ACCUSED, INADMISSIBLE. — It City of San Pablo, November 21, 1986." 1
is true that the police were able to get an admission from the accused-appellant that marijuana was found
in her possession but said admission embodied in a document entitled "PAGPAPATUNAY" previously The facts as presented by the prosecution are stated in the decision of the trial court as follows:
prepared by the police, is inadmissible in evidence against the accused-appellant for having been obtained
in violation of her rights as a person under custodial investigation for the commission of an offense. The " . . . in the morning of November 17, 1986, police officer Jose Luciano gave money and instructed his
records show that the accused-appellant was not informed of her right not to sign the document; neither civilian informer to buy marijuana from the accused at the back of the Cocoland Hotel at Brgy. Del
was she informed of her right to the assistance of counsel and the fact that the document may be used as Remedio, San Pablo City, thereafter with another police officer, Luciano positioned himself at the ground
evidence against her. floor of the hotel and watched. He actually saw the accused selling marijuana to his civilian informer by
the door outside the house of the accused. Immediately thereafter, that same day Luciano applied for a
5. ID.; CRIMINAL PROCEDURE; SEARCH; PROPERTY SEIZED MUST BE DELIVERED TO THE JUDGE WHO search warrant.
ISSUED THE WARRANT. — Not only does the law require the presence of witnesses when the search is
conducted, but it also imposes upon the person making the search the duty to issue a detailed receipt for "At about 2:00 p.m. of that day, a raiding police team armed with Search Warrant No. 10 issued by Hon.
the property seized. He is likewise required to deliver the property seized to the judge who issued the Judge Geronima Pueblo Atanacio of RTC, Branch XXXII of the Court, went to the residence of the Brgy.
warrant, together with a true and accurate inventory thereof duly verified under oath. Again, these duties
are mandatory and are required to preclude substitution of the items seized by interested parties.
Capt. Angel Capuno for them to be accompanied by him in serving the said warrant at the residence of the On 14 April 1989, the trial court rendered its decision, the dispositive portion of which reads:
accused located at the Cocoland Compound of said barangay.
"WHEREFORE, premises considered, the Court hereby renders judgment finding the accused Yolanda
"Upon reaching the residence of the accused, the police team were allowed entry inside the house on the Gesmundo guilty beyond reasonable doubt of the crime of violation of Section 4, Article II, R.A. 6425, as
strength of the said search warrant shown to the accused. The accused cried upon reading the contents of amended without any modifying circumstance to consider, hereby sentences her to suffer the penalty of
the warrant. She begged the team not to search and to leave her house. But the police team insisted on reclusion perpetua, to pay the fine of P25,000,00, with subsidiary imprisonment in case of insolvency and
their search. The accused led the team into her kitchen and she pointed to a metal basin on top of a table to pay the costs.
as the hiding place of the dried marijuana flowering tops contained in a plastic bag marked ISETANN. The
police also recovered from a native "uway" cabinet dried marijuana flowering tops wrapped separately in "The confiscated specimens are forfeited in favor of the government and to be disposed of in accordance
three (3) pieces of Komiks paper. After the discovery, the accused was photographed together with the with law.
confiscated items. Thereafter, accused was made to acknowledge in writing that the dried marijuana
flowering tops were taken from her possession and control inside her residence. Brgy. Capt. Capuno also "The bail bond for her provisional liberty is hereby cancelled and the accused is hereby ordered
affixed his countersignature thereto. immediately incarcerated." 4

"The police forthwith brought the accused to the police station where she was properly booked. Pfc. A notice of appeal was filed on 21 April 1989 with the Regional Trial Court which, on the same day,
Luciano, Pat. Rizalde Perez and Brgy. Captain Capuno executed their sworn statements. ordered the elevation of the records of the case to this Court.

"On November 18, 1986, Pat. Angelito Caraan was dispatched to the NBI requesting for the lab Assailing the Regional Trial Court's decision both on questions of law and fact, accused-appellant assigns
examination of the items confiscated from the accused. On that same day, the NBI Forensic Chemist Salud the following errors allegedly committed by the trial court:
Manguba issued a Certification with a finding that per preliminary examination which she made, the
confiscated items gave positive results for marijuana (Exh. "E"). This was confirmed later on by her with
"I. LOWER COURT ERRED IN CONVICTING THE ACCUSED ON THE BASIS OF AN ILLEGALLY SEIZED AND OR
the issuance of her Report No. DDN-86-2639 (Exh. "H")." 2
PLANTED EVIDENCE.

Accused-Appellant's version, on the other hand, is as follows:

II. LOWER COURT ERRED IN GIVING FAITH AND CREDENCE TO THE TESTIMONIES OF THE WITNESSES FOR
THE PROSECUTION DESPITE VARIANCE AND MATERIAL CONTRADICTIONS.
"On November 17, 1986 at around 1:00 p.m. while accused-appellant was in the terrace of their house
located at Barangay del Remedio, San Pablo City, a jeep with policemen on board arrived. (Tsn, p — 3,
III. THE LOWER COURT ERRED IN ADMITTING PROSECUTION'S EXHIBITS "F" — "F-1" AND "F-2" IN THE
December 16, 1988). She identified Sgt. Yte and PFC Jose Luciano to be among the group. Sgt. Yte was
ABSENCE OF COMPETENT EVIDENCE THAT THEY WERE THE ONES ALLEGEDLY SEIZED AND RECOVERED
invited by accused appellant to enter the house while PFC Luciano was left in the jeep that was parked
FROM THE HOUSE OF THE ACCUSED." 5
near the house. (TSN, p — 4, ibid). While seated at the sala, Sgt. Yte was showing to accused-appellant
something which he claimed to be a search warrant when someone uttered the following words "ito na"
The accused-appellant's conviction by the lower court is anchored on the marijuana seized in her
coming from the direction where the kitchen of the house is. She, together with Sgt. Yte proceeded to the
possession and control by virtue of a Search Warrant issued by Judge Atanacio. Her arrest did not result
kitchen and saw PFC Luciano holding a plastic bag with four other companions who entered the house
from a "buy-bust" operation supposedly conducted by police officers. Although Pfc. Luciano states that he
through the back door which was opened at that time. (TSN, p — 5, ibid). Luciano handed the bag to Sgt.
actually saw the accused-appellant selling marijuana to his civilian informer outside the house of the
Yte who, after examining the contents, confronted the accused-appellant and insisted that the plastic bag
accused-appellant, she (accused) was not placed under police custody at that very moment. Rather, the
came from her. (TSN, p — 6, ibid). She vehemently denied the accusation of Sgt. Yte and told him that she
police officers decided to let her go and effect her arrest later in the day through a search warrant, so as
does not know anything about it. But Sgt. Yte persisted and accused-appellant, who was then seven (7)
to apprehend her with a larger amount. 6
months on the family way, was seized by abdominal pains which made her cry. Then she was made to sign
a prepared document with her name already printed on it. Under extreme pressure and promised that
they will just talk with her at the City Hall, accused-appellant was constrained to sign said document. There is no question that a search warrant was issued by Judge Geronima P. Atanacio of the RTC of San
Afterwards, she was brought to the police station and detained. (TSN, pp. 7-8, ibid). That before the Pablo City, Branch 32, as declared by the Court Interpreter of said Branch (a defense witness). 7 The
incident in question, Sgt. Yte asked help from accused-appellant to testify against one Warner Marquez, accused-appellant herself also testified that Sgt. Yte showed her the search warrant obtained by the
son of her former landlord, for drug pushing. Accused refused, reasoning out that it would be unfair since police. 8 The controversy centers on the allegation by the accused-appellant that the marijuana
she is totally unaware of this thing. But Sgt. Yte remained undaunted and was forcing her for the second supposedly seized by the raiding police team in her possession, was planted by the police officers.
time to testify against Marquez. Spurned, Sgt. Yte left word that she, accused, should be careful as she
might be the next to be charged with drug pushing. (TSN, pp. 11-13, ibid)." 3
The Investigation Report prepared by Pfc. Jose V. Luciano as Investigating Officer and which was noted by Furthermore, the claim of the accused-appellant that the marijuana was planted is strengthened by the
Sgt. Bayani R. Yte as Chief of Intelligence and Investigation Division stated that: manner in which the search was conducted by the police authorities. The accused-appellant was seated at
the sala together with Sgt. Yte when they heard someone in the kitchen uttered "ito na". Apparently, the
"5. At about 171430 H November 1986, we conducted raid at said residence and premises. During the search of the accused-appellant's house was conducted in violation of Section 7, Rule 126 of the Rules of
search we discovered a hole at the backyard of the house of the suspect with a big biscuit can inside the Court which specifically provides that no search of a house, room or any other premise shall be made
hole and on top of the cover a flower pot was placed wherein the marijuana were kept. Confiscated were except in the presence of the lawful occupant thereof or any member of his family or in the absence of
more or less 100 grams of dried marijuana leaves and three rolls of magazine newspaper containing the latter, in the presence of two (2) witnesses of sufficient age and discretion residing in the same
marijuana which is ready for disposal." 9 locality. This requirement is mandatory to ensure regularity in the execution of the search warrant.
Violation of said rule is in fact punishable under Article 130 of the Revised Penal Code. 19
On direct examination, however, Pfc. Luciano said that the marijuana leaves contained inside the plastic
bag covered by a basin weighed about 800 grams since he himself weighed them on the weighing scale As we have ruled in Eduardo Quintero vs. The National Bureau of Investigation, et al. 20 a procedure,
found in the accused-appellant's house; and he also saw other marijuana wrapped in a komiks magazine wherein members of a raiding party can roam around the raided premises unaccompanied by any
found in an uway cabinet or rattan cabinet. 10 Sgt. Bayani Yte, on the other hand, affirmed the witness, as the only witnesses available as prescribed by law are made to witness a search conducted by
investigation report when he testified that during the search, they found dried marijuana leaves, more or the other members of the raiding party in another part of the house, is violative of both the spirit and the
less 100 grams on top of the dining table, placed inside a plastic bag and covered by a metal basin. 11 letter of the law.
Angel Capuno, the Barangay Chairman, on cross-examination, said that the only marijuana confiscated by
the police was the one contained in the white plastic bag. 12 It is true that the police were able to get an admission from the accused-appellant that marijuana was
found in her possession but said admission embodied in a document entitled "PAGPAPATUNAY"
In all their testimonies, there was no mention of any marijuana obtained from a flower pot placed on top previously prepared by the police, is inadmissible in evidence against the accused-appellant for having
of a biscuit can inside a hole at the backyard of the accused's house as stated in the investigation report. It been obtained in violation of her rights as a person under custodial investigation for the commission of an
would seem that the raiding party "could not put their act together", as to how much marijuana was offense. 21 The records show that the accused-appellant was not informed of her right not to sign the
recovered and where. The trial court held that the fact of discovery of the hole at the backyard was document; neither was she informed of her right to the assistance of counsel and the fact that the
merely for the purpose of reporting the hiding place of the marijuana. 13 But how, it may be asked, could document may be used as evidence against her. 22
one conclude that it was the hiding place, if no marijuana was actually seen inside?
The accused-appellant also contends that the prosecution failed to present evidence to prove that the
Moreover, during the pre-trial, Fiscal Javier requested the marking of a photograph depicting buried marijuana marked as exhibit in court are the same marijuana allegedly confiscated by the police from her.
marijuana on the ground for the purpose of showing the place where the dried marijuana was recovered. The contention is well taken.
14
Not only does the law require the presence of witnesses when the search is conducted. but it also
Not only are there inconsistencies as to what was recovered and where but also as to whom the imposes upon the person making the search the duty to issue a detailed receipt for the property seized.
marijuana was supposed to have been surrendered by the accused. Pfc. Luciano pointed out during his 23 He is likewise required to deliver the property seized to the judge who issued the warrant, together
direct examination that it was the accused-appellant who actually gave the marijuana leaves to Sgt. Yte in with a true and accurate inventory thereof duly verified under oath. 24 Again, these duties are mandatory
the kitchen, and that he (Pfc. Luciano) was asked by Sgt. Puhawan to come inside the house and they saw and are required to preclude substitution of the items seized by interested parties.
the other marijuana leaves wrapped in a magazine located at the uway cabinet. 15 Unfortunately, Sgt. Yte
contradicted Pfc. Luciano's testimony. During his cross examination, Sgt. Yte asserted that the marijuana The police authorities in the case at bar testified that they submitted an inventory to the court without
leaves were surrendered by the accused-appellant to Pfc. Luciano upon the presentation of the search the marijuana, the latter having been turned over to the National Bureau of Investigation (NBI). Whether
warrant and before the search was actually conducted. 16 When asked to explain why their inconsistent an inventory was actually made by the police was not clearly established in the trial court. The records
statements, Sgt. Yte merely answered: "That was the testimony of Pat. Luciano that accused personally . . show that an inventory was not part of the documents transmitted from Branch 32 (the warrant issuing
. " 17 branch) to Branch 30 (the trial branch) of the RTC of San Pablo City. And when asked by the trial judge, the
court Interpreter said that Judge Atanacio (who issued the warrant) confirmed that she does not have
We do not agree with the trial court in its conclusion that these discrepancies are trivial. We must be among her files the inventory supposedly submitted by the police. 25 If indeed an inventory of the seized
absolutely convinced that marijuana was actually surrendered by the accused-appellant and not planted items was made, it must be part of the records of the case. But this was not so.
as claimed by her. As held in People of the Philippines vs. Romeo F. Remorosa: 18
On the issue of non-delivery of the seized marijuana to the court, the trial court held that it takes "judicial
"Irreconcilable and unexplained contradictions in the testimonies of the prosecution witnesses cast doubt notice of the usual practice of the San Pablo City police force of retaining possession of confiscated
on the guilt of appellant and his culpability to the crime charged." specimens suspected of being marijuana by immediately forwarding them to the NBI or to an NBI
accredited physician for preliminary examination and/or laboratory examination before filing a case with The reliance of the trial court on the above-mentioned case is not quite accurate. The basis of the
the city prosecutor's office." 26 The mere tolerance by the trial court of such a practice does not make it conviction of the accused in said case was his confession, and thus, the reiteration by the Court of the trial
right. Clearly, such practice violates the mandatory requirements of the law and defeats the very purpose court's pronouncement amounts to an obiter dictum. Moreover, a person is always presumed innocent
for which they were enacted. Speculations as to the probability of tampering with the evidence cannot until proven guilty.
then be avoided.
From a careful review of the proceedings a quo, this Court is constrained to set aside the lower court's
The trial judge cites the case of Yee Sue Koy, et al. vs. Mariano Almeda, et al. (70 Phil. 141) to justify the findings, and we hold that the guilt of the accused-appellant Yolanda Gesmundo has not been established
retention by the police and the NBI of the custody of the allegedly confiscated specimens. While in said beyond reasonable doubt.
decision, this Court recognized the fact that the objects seized were retained by the agents of the Anti-
Usury Board, instead of being turned over to the Justice of the Peace of Sagay, yet the Court also held that If the inculpatory facts and circumstances are capable of two (2) or more explanations, one of which is
it was "for the reason that the custody of said agents is the custody of the issuing officer or court, the consistent with the innocence of the accused and the other consistent with his guilt, then the evidence
retention having been approved by the latter." 27 Thus, approval by the court which issued the search does not fulfill the test of moral certainty and is not sufficient to support a conviction. (People v. Parayno,
warrant is necessary for the retention of the property seized by the police officers; and only then will their 24 SCRA 3; U.S. v. Maano, 2 Phil. 718; People v. Pacana, 47 Phil. 48). 33
custody be considered custody of the court. Absent such approval, the police officers have no authority to
retain possession of the marijuana and more so, to deliver the property to another agency, like the NBI. WHEREFORE, the appealed judgment is REVERSED, and on reasonable doubt, the appellant is hereby
ACQUITTED of the crime charged. She is ordered immediately released from detention unless she is being
Having made no return or inventory to the warrant-issuing court, there is no proof that the police really held for some other legal cause or ground.
found marijuana in the house of the accused. Besides, Salud Manguba, the Forensic Chemist who
examined the marijuana allegedly confiscated by the police from the appellant, asserted that when the SO ORDERED.
police officer turned over said items to the NBI, there were no identifying marks on the plastic bag. 28
How sure are we then that the marijuana submitted for examination was the same marijuana allegedly
seized from the accused-appellant?

Lastly, the prosecution in the Information averred that the accused-appellant engaged in the distribution
and sale of marijuana. And yet, as held by this Court,

" . . . In order to sustain conviction for selling prohibited drugs, the element of sale must be unequivocally
established. Also, what the law proscribes is not only the act of selling but also, albeit not limited to, the
act of delivering. The commission of the offense of illegal sale of marijuana requires merely the
consummation of the selling transaction. What is important is that the poseur-buyer received the
marijuana from the accused." 29

It is also required that the marijuana received by the poseur-buyer be presented as evidence in court. The
identity of the marijuana which constitutes the corpus delicti must be established before the court. 30

Undisputedly, the accused-appellant was not caught in the act of selling marijuana. Sgt. Yte himself
testified during cross-examination that accused-appellant was not actually dispensing marijuana when the
search warrant was served. 31 Neither was the marijuana, object of the supposed sale, presented in court
to support the allegation of the prosecution that accused-appellant was engaged in the sale of marijuana.

The trial court held that the possession of a considerable quantity of marijuana, coupled with the fact that
the accused-appellant is not a user of prohibited drugs, indicates an intention of the accused-appellant to
sell, distribute and deliver marijuana as held in People of the Philippines vs. Roberto Toledo y Tejario alias
"OBET ." 32