Ligad vs. Dipolog
A.M. No. MTJ-01-1386.  December 5, 2001

In her letter, dated July 17, 1997, addressed to then Chief Justice Andres R. Narvasa, Lourdes R. Ligad (complainant) charged respondent Judge Teodoro Dipolog, Municipal Trial Court (MTC) of Plaridel, Misamis Occidental, with grave abuse of authority for his refusal to release on recognizance complainant’s grandson, Joey Sailan, a minor.

Sailan is the defendant in Criminal Case No. 284-96.  He was charged with violating Presidential Decree (P.D.) No. 1602 (Prescribing Stiffer Penalties on Illegal Gambling).  He was allegedly caught bringing jai-alai (locally known as “masiao”) tips and tally sheets.  On June 5, 1997, Atty. Mita Martinez of the Public Attorney’s Office (PAO) filed a motion for release on recognizance of Sailan, who was then only thirteen (13) years old, to the custody of his maternal grandmother, complainant herein.   Acting on the motion, respondent judge issued an Order, dated June 6, 1997, denying the same.  He cited the second paragraph of Section 13 of Rule 114 of the 1985 Rules on Criminal Procedure, the law then in effect, which stated:

Section 13. Bail, when not required; reduced bail or recognizance – x  x  x A person in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, without application of the Indeterminate Sentence Law or any modifying circumstance, shall be released on a reduced bail or on his own recognizance, at the discretion of the court.

In denying his release on recognizance, respondent judge reasoned that Sailan “had not yet been in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged.”

On June 16, 1997, the Department of Social Welfare and Development, through Vivian Sanchez, Social Welfare Officer II, filed a manifestation with the said lower court recommending that Sailan be released on recognizance to his maternal grandmother in accordance with the provisions of P.D. No. 603 (The Child and Youth Welfare Code).  The DSWD particularly cited Article 191 thereof providing that upon recommendation of the DSWD, “the court may release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required.” According to the complainant, when she followed this up with respondent judge, the latter “arrogantly” told her that “he is the law and everything is at his discretion.”

Respondent judge particularly denied the charge of abuse of authority stating that the denial of the release on recognizance of Joey Sailan was predicated on the second paragraph of Section 13, Rule 114 of the 1985 of Rules on Criminal Procedure.  Moreover, the movants therein allegedly did not ask for reconsideration of the assailed orders.  He likewise denied having uttered that “I am the law and everything is at my discretion.” According to respondent judge, he merely advised the complainant to instruct her lawyers to file a motion for reconsideration.

In his Memorandum, dated September 9, 1999, the Court Administrator made the following evaluation:

Respondent Judge explains that accused could not be released on recognizance because he had just been arrested and that he had not yet been in custody for a period equal to or more than the minimum of the principal penalty prescribed for the offense charged, as provided for in Section 13 of Rule 114 of the 1985 Rules on Criminal Procedure.

Respondent Judge’s explanation is but proof of his ignorance of the law.  Section 15, Rule 114 of the 1985 Rules on Criminal Procedure, as amended by Administrative Circular No. 12-94, effective October 1, 1994, provides that:

“Whenever allowed pursuant to law or these Rules, the Court may release a person in custody on his own recognizance or that of a responsible person.”

And being a youthful offender, he being but thirteen years of age at the time of arrest, under Article 191, P.D. 603 (The Child and Youth Welfare Code), he may be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention house.

“A youthful offender held for physical or mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required; Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees.  The court may, in its discretion, upon recommendation of the Department of Social Welfare or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required.

Respondent Judge should have taken into consideration that as a minor the accused should not have been mingled with other detainees.  His continued exposure to the harsh conditions prevailing in a prison would eventually affect his rehabilitation.

The Court Administrator then recommended that a fine of two thousand pesos (P2,000.00) be imposed on respondent judge with the warning that a repetition of the same or similar acts in the future would be dealt with more severely.

Upon the instance of the Court, complainant and respondent judge respectively manifested that they were submitting the case for resolution on the basis of the pleadings already filed.

The findings and recommendation of the Court Administrator are well taken

The Court shares his view that respondent judge betrayed his “ignorance of the law” when he denied the release of Sailan to the custody of complainant.  Respondent judge erroneously applied the second paragraph of Section 13 of Rule 114 of the 1985 Rules on Criminal Procedure.  Had he been more circumspect in ascertaining the applicable laws, respondent judge would have known that Article 191 of P.D. No. 603 properly applies in this case since Sailan was a minor.  Said provision of law reads in full as follows:

Art. 191. Case of Youthful Offender Held for Examination or Trial - A youthful offender held for physical or mental examination or trial or pending appeal, if unable to furnish bail, shall from the time of his arrest be committed to the care of the Department of Social Welfare or the local rehabilitation center or a detention home in the province or city which shall be responsible for his appearance in court whenever required; Provided, That in the absence of any such center or agency within a reasonable distance from the venue of the trial, the provincial, city and municipal jail shall provide quarters for youthful offenders separate from other detainees. The court may, in its discretion, upon recommendation of the Department of Social Welfare and Development or other agency or agencies authorized by the Court, release a youthful offender on recognizance, to the custody of his parents or other suitable person who shall be responsible for his appearance whenever required.  However, in the case of those whose cases fall under the exclusive jurisdiction of the Military Tribunals, they may be committed at any military detention or rehabilitation center.

The foregoing provision sets forth the following guidelines in cases where a minor is held or arrested:

1) Immediately upon arrest, the judge shall order that the minor be committed to the care of the DSWD, local rehabilitation center or a detention home in the said province or city.  The said agency or center entity shall be responsible for the minor’s appearance during trial;

2) In absence of such agency or center within a reasonable distance from the venue of the trial, the provincial, city or municipal jail shall provide quarters for the minor separate from the adult detainees;

3) Upon recommendation of the DSWD or any other authorized agency, the judge may, in his discretion, release the minor on recognizance to his parents or other suitable person who shall be responsible for his appearance when required; and

4) In those cases falling under the exclusive jurisdiction of the military tribunal, the minor may be committed at any military detention or rehabilitation.

In this case, respondent judge, in clear violation of the above provision, did not order Sailan’s commitment to the DSWD or any other rehabilitation center.  Instead, as found by the Court Administrator, respondent judge allowed Sailan’s continued detention in the municipal jail consequently exposing him to the harsh conditions therein.

Granting arguendo that there was no agency or center in the municipality where Sailan may be committed, still, the continued detention of Sailan in the municipal jail is not justified.  Article 191 of P.D. No. 603, as amended, specifically authorizes that, upon recommendation of the DSWD, a minor may be released on recognizance to the custody of his parents or other suitable person.  Notwithstanding the recommendation of the DSWD in this case, respondent judge denied the motion for the release on recognizance of Sailan by erroneously citing the second paragraph of Section 13, Rule 114 of the 1985 of Rules on Criminal Procedure.  As earlier stated, said provision is not the applicable law in this case but Article 191 of P.D. No. 603, Sailan being a minor.  Section 12, Rule 114 of the 1985 Rules on Criminal Procedure in fact states that:

Whenever allowed pursuant to law or these Rules, the court may release a person in custody on his own recognizance or that of a responsible person.

In fine, respondent judge had failed to live up to the norms embodied in the Code of Judicial Conduct particularly that which enjoins judges to “be faithful to the law and maintain professional competence.” Indeed, respondent judge owes to the public and to the legal profession to know the law he is supposed to apply to a given controversy.

People vs. Ortillas, G.R. No. 137666, May 20, 2004

On January 6, 1995, an Information was filed against Marlon Ortillas with the Makati Regional Trial Court, and assigned by raffle to Branch 255 (Las Piñas), then presided over by Judge Florentino M. Alumbres.

Despite the fact that it is stated in the title of the Information that appellant was a minor, detained at the Municipal Jail, Las Piñas, Metro Manila, Presiding Judge Alumbres failed to ascertain and verify the alleged minority of appellant and determine if the provisions of P.D. No. 603, otherwise known as The Child and Youth Welfare Code should be applied to Ortillas.

After arraignment of appellant who pleaded not guilty to the offense with which he is charged, the trial court dispensed with the pre-trial and proceeded to trial on the merits.

On June 8, 1995, the prosecution presented Russel Guiraldo, an alleged eyewitness.  After Russel’s direct examination, Atty. Jose G. de Leon, the then counsel for Ortillas moved for postponement as he had a very important appointment to keep which Judge Alumbres granted.  Subsequently, Atty. de Leon had to withdraw as counsel because of eye ailment which the trial court approved.  The only other hearing that took place after the testimony of Russel on June 8, 1995, was on September 5, 1995 when NBI Medico-Legal Officer Roberto Garcia testified for the prosecution.  All in all, the continuation of the hearing was postponed thirteen times from June 8, 1995 until May 8, 1996 when the prosecution finally rested its case with the submission of its documentary evidence. Witness Russel was never presented for cross-examination.  The last time he was subpoenaed was for the hearing set on November 6, 1995, but records do not show that he appeared on said date.  Although several hearings were scheduled thereafter, Russel was not subpoenaed anymore.

The defense put up by the accused is alibi, a very weak defense because it is easy to fabricate.  Just like in the present case, he was still able to tell the authorities that he was in his house when his friend Jose Mesqueriola was killed.  If there was truth that he was in his house when Jose Mesqueriola was killed, how come not one occupant in his house came forward to testify for him during the trial.  Alibi is considered the weakest defense because it can easily be fabricated and cannot stand in the light of clear, positive and precise evidence of the prosecution establishing the identity of the accused

The charge against the accused is murder, defined and penalized under Article 248 of the Revised Penal Code, as amended by RA 7659.  The commission of the crime in the present case was attended by the circumstance of explosion (the use and exploding of the pillbox).  In the Certificate of Post-Mortem Examination (Exh. “C”) which Dr. Garcia issued, he placed that the cause of death which is “Traumatic-head injury” was the result of an alleged explosion.  On whether there was the circumstance of evident premeditation, the evidence does not clearly show.

In his Brief, appellant points out that the first counsel of appellant, Atty. Jose de Leon, raised the minority of appellant and invoked the provisions of P.D. No. 603 during the initial hearing conducted on June 8, 1995 but Judge Alumbres outrightly denied his request.  Atty. de Leon submitted to the ruling and prosecution witness Russel was called to the witness stand.  There is merit to the complaint of appellant.  Judge Alumbres was remiss of his duty to ascertain the minority of appellant at the onset of the proceedings.  The records further disclose that he likewise ignored the letter of Director Milda S. Alvior of the Department of Social Welfare and Development (DSWD) filed with his court on January 31, 1996 informing him that appellant at that time was sixteen years old and alleging that his prolonged stay in the Las Piñas Jail for one year and one month at the time, mixed with hundred criminals affected him physically, intellectually, emotionally and socially.

The Presiding Judge should be sanctioned for his negligence in the performance of his duties with respect to accused minor - but these particular omissions are not sufficient grounds to merit the reversal of the assailed decision.

Certainly, under the foregoing circumstances, Judge Alumbres should have known that the interest of justice required that appellant should have been given the opportunity to cross-examine Russel, as it was not his fault that Russel had not been cross-examined.  While a petition for certiorari could have been duly availed of by counsel for appellant to rectify the judge’s grave abuse of discretion, appellant should not be made to suffer for the failure of his counsel to do so; as a layman, he could not have known better as to what must be done under the circumstances.  On this matter, the PAO, as de oficio counsel for appellant was remiss of its duty to protect the interest of its client.

Under the peculiar facts and circumstances of the case, it is evident that appellant had not been given the opportunity to cross-examine the lone prosecution witness.  In the absence of cross-examination, which is prescribed by statutory norm and jurisprudential precept, the direct examination of the witness should have been expunged from the records, in which case, the trial court would have had no valid basis to deny the demurrer to evidence. 

The trial court declared that “the issue in this case hinges mainly on credibility of the witnesses, both of the prosecution and the defense”.

The prosecution evidence is principally based on the testimony of Russel which is narrated by the trial court, as follows:

. . .  He testified that at around 6:00 o’clock in the morning of December 21, 1994, he was with one Jose Mesqueriola, alias Joey, hearing Misa de Gallo at the Bamboo Organ Church in Las Piñas, Metro Manila.  After the mass, he and Jose Mesqueriola were walking side by side at the side of the road leading to the direction of Quezon Plaza.  Upon reaching a point at the side of the road near Plaza Quezon, and at a distance of about fifteen (15) meters, he saw the accused in front of a gate of a house threw (sic) a pillbox towards their direction and the pillbox exploded on the head of his companion Jose Mesqueriola.  He was also hit at a portion of his right face.  After the bomb exploded on the head of Jose Mesqueriola, the latter fell down so he helped him by bringing him to the Las Piñas Emergency Hospital which is just nearby.  However, the next day, he died.  After the accused threw the bomb, he ran away and hid.  He came to know of the accused since June 1994 (they being classmates in the Municipal High School, according to the accused). . .

On the other hand, the defense evidence consist only of the testimony of appellant which is aptly narrated by the trial court, as follows:

. . . he testified that on December 21, 1994, at around 6:00 o’clock in the morning, he was in his house at his given address when he heard an explosion.  He then ran towards the direction where the explosion was to find out what was it all about.  Reaching the place, he found some people around and he saw a person lying prostrate on the street and blooded.  He was being assisted and brought to the hospital by his classmate Roselle Guiraldo.  After the wounded person was brought to the hospital, he learned from his neighbors that the person lying on the street was a victim of pillbox explosion and he came to know that his name was Joey and his friend.  When he ran out of his house, he saw his classmate Jacob Relox was running away from the scene of the explosion, together with companions, and he was also told by Aling Itang, one of his neighbors, that the one who threw the pillbox to Joey was Jacob Relox.  He learned also from his neighbor, Aling Itang, that the reason why Jacob Relox threw pillbox at Joey is because on December 20, 1994, Jacob was mauled by Joey Mesqueriola and his companions.

The accused revealed during the trial that he was a working student enrolled at the Las Piñas Municipal High School near Saint Joseph Church in Las Piñas Poblacion.  In their school, there were two rival fraternities, the Crimebuster and the Taugamma.  He was a member of the Crimebuster together with Roselle Guiraldo and Jose Mesqueriola, his classmates.  He left the Crimebuster because he did not like the rules and he joined the Taugamma.

After one (1) week of attending classes at the Las Piñas Municipal High School, he asked for transfer to Las Piñas North Municipal High School because in the Las Piñas Municipal High School, every after classes, his classmate Roselle Guiraldo always waited for him outside (inaabangan) and look (sic) for trouble, and this Roselle Guiraldo has a bad blood or grudge against him.  It started when there was stone throwing inside their classroom on the third day of their classes.  Roselle Guiraldo was hit and he thought that he (accused) was the one who threw the stone because it came from the direction where he was sitting, not knowing that it was his sitmate (sic) who threw the stone.  So that even if he was not the one who threw the pillbox in the early morning of December 21, 1994 which cause the death of Jose Mesqueriola, he was the one pointed to by Roselle Guiraldo because of this grudge against him.

He also testified that Jacob Relox has the motive for killing Jose Mesqueriola because on December 20, 1994, Jacob Relox was mauled by Jose Mesqueriola and the other members of the Crimebuster fraternity.  Jacob Relox then was a member of the rival fraternity, the Taugamma.

Considering that appellant was unlawfully deprived of the opportunity to cross-examine prosecution witness Russel, his testimony should have been strictly scrutinized and analyzed with utmost care and any doubt thereon should have been interpreted by the trial court in favor of appellant.

The trial court’s assessment of Russel’s testimony is not only perfunctorily done but its decision is also partly based on the evidence presented by the defense, in stark violation of the well-settled rule that the conviction of appellant must not act on the weakness of the defense but on the strength of the prosecution.

First, it cannot be over-emphasized that there is no direct, positive testimony that Russel actually saw appellant throw the pillbox.  He only testified that when he and victim Joey or Jose Miscariola were about to leave the church, Joey “was hit with the pillbox that was thrown by the accused, Marlon Ortillas”.  This statement is a conclusion of fact rather than a declaration of what he actually saw.  He did not testify that he actually saw appellant in the act of throwing the pillbox at them.  It was only the Fiscal who expressed in his question or who presumed that Russel saw appellant throw the pillbox to the place where they were, which although not objected to by counsel for appellant, should not have been a basis for appellants’ conviction.  The purported eyewitness should at least have declared, positively and explicitly, having seen appellant throw the pillbox or an unidentified object.  There is not even a testimony that Russel saw appellant holding the pillbox before he threw it.

Second, it is difficult to reconcile the contradiction in the declaration of Russel that it is when they were about to leave the church that Joey was hit with the pillbox thrown by appellant as against his succeeding answer to the next question of the Fiscal as to how far were they from the church when the incident happened and he replied that they were already far from the church because the incident happened in the plaza.  Where did the throwing of the pillbox actually take place, when he was about to leave the church or in the plaza?  Why the discrepancy?  Did he really see the actual throwing of the pillbox?  These are questions, the answers to which are not found in the testimony of Russel.

Third, Russel testified that appellant was fifteen meters away from them at the opposite side of the street.  To be able to testify that he saw appellant throw a pillbox, Russel should have seen the actual throwing by appellant before the pillbox left the hand of appellant; otherwise, how could Russel say for certain that it was appellant who threw the pillbox?  And if Russel did see the actual throwing of an object thrown at their direction, how could he not have at least attempted to avoid the same when the distance between them and appellant is fifteen meters.  At the normal speed of a hand thrown object as big as a pillbox, if Russel had actually seen appellant in the act of throwing the pillbox from that distance, instinct would have naturally spurred him, at least, to attempt to dodge the same, even if he would not have succeeded in doing so.  As it is, Russel did not testify that upon seeing the pillbox or the object being thrown by appellant at their direction, he tried to evade the same.  Neither is there any testimony on the part of Russel that when he saw the pillbox being thrown at him and Joey, there was no time to evade the same.

Fourth, the testimony of Russel that he helped Joey when the latter was hit and fell down, but, at the same time, he saw appellant run and hide in his (appellant’s) house that was six meters away from the place where appellant threw the pillbox, is not credible.  It goes beyond human experience for Russel to be able to follow the movements of a culprit right after Joey, his companion, had been hit at the same time that he was helping Joey when the latter fell to the ground, not to mention the fact that he was also hit on the right side of his face.  Does it mean that Russel just stood by watching appellant’s movements while the latter threw the pillbox at them and hit him and Joey?  The failure of the prosecution to explain this incredible feat is fatal to its cause.  No better test has been found to measure the value of a witness’ testimony than its conformity to the knowledge and common experience of mankind.

Fifth, the motive attributed by the trial court to appellant in throwing a pillbox at Russel is based not on the testimony of prosecution witness Russel but on the testimony of appellant.  It is a hornbook doctrine that the prosecution must rely on its own evidence to prove the guilt of appellant beyond reasonable doubt and therefore, the trial court should not depend on the evidence of the defense to support the conviction of appellant.  However, considering that the presiding judge had given probative weight or credibility to the testimony of appellant by using his testimony to establish motive on his part to commit the crime, the same testimony may be used likewise to prove that witness Russel had an ill-motive to testify against appellant.  And when the evidence admits of two interpretations, that which is favorable to appellant should prevail.

Sixth, while indeed, it is true that flight evidences guilt and a guilty conscience, the escape of appellant from jail pending trial of his case, cannot, under the attendant circumstances, be considered as evidence of his guilt in the commission of the offense, or as basis of his conviction in this case.  Appellant had sufficiently explained that he escaped from detention because he got bored in jail, he wanted to see his first new born child and to look for his own father. It is quite surprising why the trial judge in his decision only mentioned and denigrated the explanation of appellant that he wanted to look for his father and not mention at all the other reasons of appellant for bolting out of jail.  At any rate, it is not refuted that appellant subsequently surrendered to a member of the Office of the Assistant Regional Director, BJMP, because of fear for his life.

On the other hand, in denying that he threw the pillbox, no other witness was presented by appellant to corroborate his testimony.  Nonetheless, the testimony of appellant fully explains why Russel testified against him.  Russel was of the belief that appellant was the one who earlier threw a stone at him in the classroom.  Unfortunately, the trial court misapprehended the import of his testimony and interpreted it against him to explain the latter’s purported motive in throwing the pillbox at Russel and Joey.

Although denial, like alibi, can be fabricated, it is not always false and without merit, and when coupled with the improbabilities and uncertainties of the prosecution evidence, the defense of alibi deserves merit. Settled is the rule that conviction should rest on the strength of evidence of the prosecution and not on the weakness of the defense. The weakness of the defense does not relieve it of this responsibility.

Thus, the Court is constrained to set aside the conviction of appellant.

Had not Judge Alumbres been compulsorily retired in 2001, he together with the Public Attorney’s Office would have been admonished to be more circumspect in the performance of their respective duties so as to prevent miscarriage of justice