THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. BASILIO DAMASO @ BERNARDO/BERNIE MENDOZA @ KA DADO, ACCUSED-APPELLANT.

The accused-appellant, Basilio Damaso, was originally charged in
an information filed before the Regional Trial Court of Dagupan City with
violation of Presidential Decree No. 1866 in furtherance of, or incident to, or
in connection with the crime of subversion, together with Luzviminda Morados y
Galang @ Ka Mel, Teresita Calosa y Macabangon @ Ka Tessie, Ricardo Calosa y
Perez @ Ka Ric, Marites Calosa y Evangelista @ Ka Tess, Eric Tanciangco y
Capira @ Ka Ric and Luz Tanciangco y Pencial @ Ka Luz (Records, p. 3). Such information was later amended to
exclude all the above-enumerated persons except the accused-appellant from the
criminal charge. The amended
information reads:

“That on or about the 19th day of June, 1988, in the City of
Dagupan, Philippines, and within the territorial jurisdiction of this Honorable
Court, the above-named accused, Basilio DAMASO @ Bernardo/Bernie Mendoza @ KA
DADO, did then and there, wilfully, unlawfully and criminally, have in his
possession, custody and control one (1) M14 Rifle bearing Serial No. 1249935
with magazine and Fifty-Seven (57) live ammunition, in furtherance of, or
incident to, or in connection with the crime of subversion, filed against said
accused in the above-entitled case for Violation of Republic Act 1700, as
amended by Executive order No. 276.

“Contrary to Third
Paragraph of Sec. 1, P.D. 1866.” (Records, p. 20)

Upon arraignment, the accused-appellant pleaded not guilty to the
crime charged (Records, p. 37). Trial
on the merits ensued. The prosecution
rested its case and offered its exhibits for admission. The counsel for accused-appellant interposed
his objections to the admissibility of the prosecution’s evidence on grounds of
its being hearsay, immaterial or irrelevant and illegal for lack of a search warrant. On these bases, he, thereafter, manifested
that he was not presenting any evidence for the accused (TSN, December 28,
1989, p. 139). On January 17, 1990, the trial court
rendered its decision, the dispositive portion of which states:

“WHEREFORE, the Court finds accused Basilico Damaso alias
Bernardo/Bernie Mendoza alias Ka Dado guilty beyond reasonable doubt of
Violation of Presidential Decree Number 1866, and considering that the
Violation is in furtherance of, or incident to, or in connection with the crime
of subversion, pursuant to Section 1, Paragraph 3 of Presidential Decree Number
1866 hereby sentences the accused to suffer the penalty of Reclusion Perpetua
and to pay the costs of the proceedings.

“The M14 Rifle bearing Serial Number 1249935 and live
ammunition and all the articles and/or items seized on June 19, 1988 in
connection with this case and marked and submitted in court as evidence are
ordered confiscated and forfeited in favor of the government, the same to be
turned over to the Philippine Constabulary Command at Lingayen, Pangasinan.

“SO ORDERED.” (Rollo, p. 31)

Thus, this present recourse with the following assignment of
errors:

A. THE TRIAL COURT ERRED IN FINDING ACCUSED
APPELLANT GUILTY BEYOND REASONABLE DOUBT OF THE CRIME OF ILLEGAL POSSESSION OF
FIREARMS AND AMMUNITIONS IN FURTHERANCE OF, OR INCIDENT TO, OR IN CONNECTION
WITH THE CRIME OF SUBVERSION DESPITE THE WOEFULLY INADEQUATE EVIDENCE PRESENTED
BY THE PROSECUTION.

B. THE COURT ERRED IN CONVICTING THE ACCUSED
WHEN THE QUALIFYING CIRCUMSTANCES OF SUBVERSION WAS NOT PROVEN BY THE
PROSECUTION.

C. THE LOWER COURT ERRED IN CONSIDERING AS
EVIDENCE THE FIREARMS DOCUMENTS AND ITEMS LISTED IN EXHIBIT E AFTER THEY WERE
DECLARED INADMISSIBLE WITH FINALITY BY ANOTHER BRANCH OF THE SAME COURT AND THE
SAID EVIDENCE ARE THE FRUITS OF AN ILLEGAL SEARCH.

D. THE TRIAL COURT ERRED IN DENYING THE MOTIONS
TO QUASH FILED BY ACCUSED-APPELLANT BECAUSE THE SEPARATE CHARGE FOR SUBVERSION
AGAINST HIM ABSORBED THE CHARGE FOR ILLEGAL POSSESSION OF FIREARMS IN
FURTHERANCE OR OF INCIDENT TO, OR IN CONNECTION WITH THE CRIME OF
SUBVERSION.” (pp. 55-66, Rollo)

The antecedent facts are set forth by the Solicitor General in
his Brief, as follows:

“On June 18, 1988, Lt. Candido Quijardo, a Philippine Constabulary
officer connected with the 152nd PC Company at Lingayen, Pangasinan, and some
companions were sent to verify the presence of CPP/NPA members in Barangay
Catacdang, Arellano-Bani, Dagupan City. In said place, the group apprehended Gregorio Flameniano, Berlina
Aritumba, Revelina Gamboa and Deogracias Mayaoa. When interrogated, the persons apprehended revealed that there
was an underground safehouse at Gracia Village in Urdaneta, Pangasinan. After coordinating with  the Station Commander of Urdaneta, the group
proceeded to the house in Gracia Village. They found subversive documents, a radio, a 1 x 7 caliber .45 firearm
and other items (pp. 4, 6-7,
tsn, october 23, 1989).

“After the raid, the group proceeded to Bonuan, Dagupan City,
and put under surveillance the rented apartment of Rosemarie Aritumba, sister
of Berlina Aritumba whom they earlier arrested. They interviewed Luzviminda Morados, a visitor of Rosemarie
Aritumba. She stated that she worked
with Bernie Mendoza, herein appellant. She guided the group to the house rented by appellant. When they reached the house, the group found
that it had already been vacated by the occupants. Since Morados was hesitant to give the new address of Bernie
Mendoza, the group looked for the Barangay Captain of the place and requested
him to point out the new house rented by appellant. The group again required Morados to go with them. When they reached the house, the group saw
Luz Tanciangco outside. They told her
that they already knew that she was a member of the NPA in the area. At first, she denied it, but when she saw
Morados she requested the group to go inside the house. Upon entering the house, the group, as well
as the Barangay Captain, saw radio sets, pamphlets entitled ‘Ang Bayan’, xerox
copiers and a computer machine. They
also found persons who were companions of Luz Tanciangco (namely, Teresita
Calosa, Ricardo Calosa, Marites Calosa, Eric Tanciangco and Luzviminda
Morados). The group requested the
persons in the house to allow them to look around. When Luz Tanciangco opened one of the rooms, they saw books used
for subversive orientation, one M-14 rifle, bullets and ammunitions, Kenwood
radio, artificial beard, maps of the Philippines, Zambales, Mindoro an(d)
Laguna and other items. They confiscated
the articles and brought them to their headquarters for final inventory. They likewise brought the persons found in
the house to the headquarters for investigation. Said persons revealed that appellant was the lessee of the house
and owned the items confiscted therefrom (pp. 8-12, tsn, ibid; pp. 2-4, 6, 8-10, 31, tsn, October 31,
1989).” (p. 5, Brief of Plaintiff-Appellee, p. 91, Rollo)

While We encourage and support law enforcement agencies in their
drive against lawless elements in our society, We must, however, stress that
the latter’s efforts to this end must be done within the parameters of the
law. In the case at bar, not only did
We find that there are serious flaws in the method used by the law officers in
obtaining evidence against the accused-appellant but also that the evidence as
presented against him is weak to justify conviction.

We reverse.

The records of this case show that the accused-appellant was
singled out as the sole violator of P.D. No. 1866, in furtherance of, or
incident to, or in connection with the crime of subversion. Yet, there is no substantial and credible
evidence to establish the fact that the appellant is allegedly the same person
as the lessee of the house where the M-14 rifle and other subversive items were
found or the owner of the said items. The prosecution presented two witnesses who attested to this fact, thus:

“Lieutenant Candito Quijardo

Fiscal

“Q : How about this Bernie Mendoza, who was the one renting
the house?

“A :  He was not around
at that time, but according to Luz (Tanciangco) who mentioned the name Bernie Mendoza
(as) the one who was renting the house and at the same time claiming that it
was Bernie Mendoza who owns the said items.” (TSN of October 31, 1989,
p.40)

“x x x.

“Q : I am showing you another
picture which we request to be marked as Exhibit ‘K-2,’ tell us if it has any
connection to the house?

“A :  The same house,
sir.

“Q : Now, this person who according to you allegedly occupied the house at Bonuan
Gueset, by the name of Bernie Mendoza, in your capacity as a Military officer,
did you find out the identity?

“A : I am
not the proper (person) to tell the
real identity of Bernie de Guzman.

“Q : Can you tell the Honorable Court the proper person who
could tell the true identity of Bernie Mendoza?

“A : The Intelligence
of the Pangasinan PC Command.

“Q : Can you name these officers?

“A : Captain Roberto
Rosales and his assistant, First Lt. Federico Castro. (ibid, pp. 54-55)

“M/Sgt. Artemio Gomez

“Q : That underground house, do you know who was the principal
occupant of that house?

“x x x.

“A : During our
conversation with the occupants, they revealed that a certain Ka Bernie is the
one occupying the house, Bernie Mendoza alias Basilio Damaso.

“x x x. (TSN, December 27, 1989, pp. 126-128)

Clearly, the aforequoted testimonies are
hearsay because the witnesses testified on matters not on their own personal
knowledge. The Solicitor General,
however, argues that while the testimonies may be hearsay, the same are
admissible because of the failure of counsel for appellant to object thereto.

It is true that the lack of objection to a hearsay testimony
results in its being admitted as evidence. But, one should not be misled into thinking that since these testimonies
are admitted as evidence, they now have probative value. Hearsay evidence, whether objected to or
not, cannot be given credence. In
People v. Valero, We emphatically declared that:

“The failure of the defense counsel to object to the
presentation of incompetent evidence, like hearsay evidence or evidence that
violates the rule of res inter
alios acta, or his failure to ask for the striking out of the same does not
give such evidence any probative value. The lack of objection may make any incompetent evidence admissible. But admissibility of evidence
should not be equated with weight of
evidence. Hearsay evidence whether objected to
or not has no probative value.”
(L-45283-84, March 19, 1982, 112 SCRA 675, underlining supplied)

It is unfortunate that the prosecution failed
to present as witnesses the persons who knew the appellant as the lessee and
owner of the M-14 rifle. In this way,
the appellant could have exercised his constitutional right to confront the
witnesses and to cross-examine them for their truthfulness. Likewise, the records do not show any other
evidence which could have identified the appellant as the lessee of the house
and the owner of the subversive items. To give probative value to these hearsay statements and convict the
appellant on this basis alone would be to render his constitutional rights
useless and without meaning.

Even assuming for the sake of argument that the appellant is the
lessee of the house, the case against him still will not prosper, the reason
being that the law enforcers failed to comply with the requirements of a valid
search and seizure proceedings.

The right against unreasonable searches and seizures is enshrined
in the Constitution (Article III, Section 2). The purpose of the law is to prevent violations of private security in
person and property, and unlawful invasions of the sanctity of the home by
officers of the law acting under legislative or judicial sanction and to give
remedy against such usurpations when attempted (see Alvero v. Dizon, 76 Phil.
637, 646). However, such right is not
absolute. There are instances when a
warrantless search and seizure becomes valid, namely: (1) search incidental to an arrest; (2) search of a moving vehicle;
and (3) seizure of evidence in plain view (Manipon, Jr. v. Sandiganbayan, L-58889,
July 31, 1986, 143 SCRA 267, 276). None
of these exceptions is present in this case.

The Solicitor General argues otherwise. He claims that the group of Lt. Quijardo entered the appellant’s
house upon invitation of Luz Tanciangco and Luzviminda Morados, helper of the
appellant; that when Luz Tanciangco opened one of the rooms, they saw a copier
machine, computer, M-14 rifle, bullets and ammunitions, radio set and more
subversive items; that technically speaking, there was no search as the group was
voluntarily shown the articles used in subversion; that besides, a search may
be validly conducted without a search warrant with the consent of the person
searched as in this case, appellant’s helper and Luz Tanciangco allowed them to
enter and to look around the appellant’s house; and that since the evidence
seized was in plain view of the authorities, the same may be seized without a
warrant.

We are not persuaded. The constitutional immunity from
unreasonable searches and seizures, being a personal one, cannot be waived by
anyone except the person whose rights are invaded or one who is expressly
authorized to do so in his or her behalf (De Garcia v. Locsin, 65 Phil. 689,
695). In the case at bar, the records
show that appellant was not in his house at that time Luz Tanciangco and Luz
Morados, his alleged helper, allowed the authorities to enter it (TSN, October
31, 1989, p. 10). We find no evidence
that would establish the fact that Luz Morados was indeed the appellant’s
helper or if it was true that she was his helper, that the appellant had given
her authority to open his house in his absence. The prosecution likewise failed to show if Luz Tanciangco has
such an authority. Without this
evidence, the authorities’ intrusion into the appellant’s dwelling cannot be
given any color of legality. While the
power to search and seize is necessary to the public welfare, still it must be
exercised and the law enforced without transgressing the constitutional rights
of the citizens, for the enforcement of no statute is of sufficient importance
to justify indifference to the basic principles of government (Rodriguez v.
Evangelista, 65 Phil. 230, 235). As a consequence, the search conducted by
the authorities was illegal. It would
have been different if the situation here demanded urgency which could have
prompted the authorities to dispense with a search warrant. But the record is silent on this point. The fact that they came to the house of the
appellant at nighttime (Exh. J, p. 7, Records), does not grant them the license to go inside his house. In Alih v. Castro, We ruled that:

“The respondents cannot even plead the urgency of the raid
because it was in fact not urgent. They
knew where the petitioners were. They
had every opportunity to get a search warrant before making the raid. If they were worried that the weapons inside
the compound would be spirited away, they could have surrounded the premises in
the meantime, as a preventive measure. There was absolutely no reason at all why they should disregard the
orderly processes required by the Constitution and instead insist on
arbitrarily forcing their way into the petitioner’s premises with all the
menace of a military invasion.” (G.R. No. 69401, June 23, 1987, 151 SCRA
279, 286)

Another factor which illustrates the weakness of the case against
the accused-appellant is in the identification of the gun which he was charged
to have illegally possessed. In the
amended information (supra, pp. 1-2), the gun was described as an M-14
rifle with serial no. 1249935. Yet, the gun presented at the trial bore a different serial number thus:

“FISCAL:

Q.   Will
you kindly restate again the items that you found inside the house?

Lt. Quijardo:

A.    When
she opened the doors of the rooms that we requested for, we immediately saw
different kinds of books of which we believed to be used for subversive
orientation and the M-14 rifle.

Q.   In
what portion of the house did you find this M-14 rifle which you mentioned?

A.    In
the same room of which the subversive documents were placed.

Q.   If
this firearm would be shown to you would you
be able to identify the same?

A.    Yes,
sir.

Q.   I
am showing to you a rifle bearing a serial number 1249985
which for purposes of identification, may we request your Honor, that this
rifle be marked as Exhibit ‘D.’

“COURT:

Mark it.

“FISCAL:

Q.   Kindly
examine the said firearm and tell the Honorable Court the relation of that
firearm to the firearm which according to
you you found inside the room allegedly occupied by one Bernie Mendoza?

A.    This
is the same rifle which was discovered during our raid in the same house.”
(TSN, October 31, 1989, pp. 36-38, underlining supplied).

The Solicitor General contends that the
discrepancy is merely a typographical error.

We do not think so. This
glaring error goes into the substance of the charge. Its correction or lack of it could spell the difference between
freedom and incarceration of the accused-appellant.

In crimes of illegal possession of firearm as in this case, the
prosecution has the burden to prove the existence of the firearm and that the
accused who possessed or owned the firearm does not have the corresponding
license for it. Since the gun as identified
at the trial differs from the gun described in the amended information, the
corpus delicti (the substance of the crime, the fact that a crime has actually been committed)
has not been fully established. This
circumstance coupled with dubious claims of appellant’s connection to the house
(where the gun was found) have totally
emasculated the prosecution’s case.

But even as We find for the accused-appellant, We, take exception
to the argument raised by the defense that the crime of subversion absorbs the
crime of illegal possession of firearm in furtherance of or incident to or in
connection with the crime of subversion. It appears that the accused-appellant is facing a separate charge of
subversion. The defense submits that
the trial court should have peremptorily dismissed this case in view of the
subversion charge. In People of the
Philippines v. Asuncion, et al., We set forth in no uncertain terms the
futility of such argument. We quote:

“If We are to espouse the theory of the respondents that force
and violence are the very essence of subversion, then it loses its distinction
from rebellion. In People v. Liwanag
(G.R. No. 27683; 1976, 73 SCRA 473, 480 [1976])., the Court categorically
distinguished subversion from rebellion, and held:

`Violation of Republic Act No. 1700, or subversion, as it is more
commonly called, is a crime distinct from that of actual rebellion. The crime of rebellion is committed by rising
publicly and taking up arms against the
Government for any of the purposes specified in Article 134 of the
Revised Penal Code; while the Anti-Subversion
Act (Republic Act No. 1700) punishes affiliation or membership
in a subversive organization as defined therein. In rebellion, there must be a public uprising and taking of arms
against the Government; whereas, in subversion, mere membership
in a subversive association is sufficient and the taking up of arms by a member
of a subversive organization against the Government is but a circumstance which
raises the penalty to be imposed upon the offender.’ (Underscoring supplied)

“Furthermore, in the case of Buscayno v. Military Commission
(G.R. 58284, 109 SCRA 289 [1981]), this Court said that subversion, like
treason, is a crime against national security, while rebellion is a crime
against public order. Rising publicly
and taking arms against the Government is the very element of the crime of
rebellion. On the other hand, R.A. 1700
was enacted to outlaw the Communist Party of the Philippines (CPP), other
similar associations and its successors because their existence and activities
constitute a clear, present and grave danger to national security.

“The first Whereas clause of R.A. 1700 states that the CPP is
an organized conspiracy to overthrow the Government, not only by force and
violence but also by deceit,
subversion and other illegal means. This is a recognition that subversive acts
do not only constitute force and violence (contrary to the arguments of private
respondents), but may partake of other forms as well. One may in fact be guilty of subversion by authoring subversive materials,
where force and violence is neither necessary or indispensable.”

“Private respondents contended that the Court in Misolas v.
Panga impliedly ruled that if an accused is simultaneously charged with
violation of P.D. 1866 and subversion, the doctrine of absorption of common
crimes as applied in rebellion would have found application therein. The respondents relied on the opinion of
this Court when it said:

‘x x x in the present case, petitioner is being charged
specifically for the qualified offense of illegal possession of firearms and
ammunition under PD 1866. HE IS NOT
BEING CHARGED WITH THE COMPLEX CRIME OF SUBVERSION WITH ILLEGAL POSSESSION OF
FIREARMS. NEITHER IS HE BEING
SEPARATELY CHARGED FOR SUBVERSION AND FOR ILLEGAL POSSESSION OF FIREARMS. Thus, the rulings of the Court in Hernandez,
Geronimo and Rodriquez find no application in this case.’

“This is however a mere obiter. In the above case, the Court upheld the validity of the charge
under the third paragraph of Section 1 of P.D. 1866. The Court opined that the dictum in the Hernandez case is not applicable in that case,
considering that the legislature deemed it fit to provide for two distinct
offenses: (1) illegal possession of firearms qualified by subversion (P.D.
1866) and (2) subversion qualified by the taking up of arms against the
Government (R.A. 1700). ‘The practical
result of this may be harsh or it may pose grave difficulty on an accused in
instances similar to those that obtain in the present case, but the wisdom of
the legislature in the lawful exercise of its power to enact laws is something
that the Court cannot inquire into. . .” (G.R. Nos. 83837-42, April 22,
1992).

Nonetheless, the evidence in hand is too weak to convict the
accused-appellant of the charge of illegal possession of firearm in furtherance
of, or incident to or in connection with the crime of subversion, We are
therefore, left with no option, but to acquit the accused on reasonable doubt.

ACCORDINGLY, the decision
appealed from is hereby REVERSED and the appellant is ACQUITTED with
costs de oficio.

SO ORDERED.

Cruz, (Chairman),
Grino-Aquino, and Bellosillo, JJ., concur.