THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. REYNALDO ABELITA Y LUQUIAS, DEFENDANT-APPELLANT.

This is an appeal from the decision dated November 19, 1990 of the
Regional Trial Court, Branch 170, Malabon, Metro Manila in Criminal Case No.
8970-MN entitled “People of the Philippines v. Reynaldo Abelita y
Luquias” finding the accused-appellant guilty beyond reasonable doubt of
violation of Section 4, Article II, Republic Act No. 6425 and sentenced to
suffer life imprisonment, to pay a fine of P20,000.00 and the costs of the
suit.

The Information under which he was charged with violation of the
aforesaid section and article of Republic Act No. 6425 read as follows:

“That on or about the 16th day of February, 1990, in the Municipality of Navotas, Metro Manila,
Philippines and within the jurisdiction of this Honorable Court, the
above-named accused in consideration of P10.00 bill with Serial No. HB116649
received from poseur-buyer and without being authorized by law, did, then and
there, wilfully, unlawfully and feloniously SELL, deliver and distribute three
(3) handrolled cigarette sticks wrapped in a small white paper and which
cigarette sticks when subjected to laboratory examination were found positive
Indian Hemp commonly known as ‘Marijuana’, a prohibited drug.

“On the same occasion (sic), accused who as aforestated is not
authorited (sic) by law was likewise found to be in possession of thirty seven
(37) handrolled cigarette sticks contained in a Bonna milk can for the purpose
of dispatch in transit or transporting the same; and which when subjected to
laboratory examination were likewise
found positive for indian hemp, commonly known as marijuana.

“CONTRARY TO LAW.”
(Rollo, p. 4)

Upon arraignment, accused, duly assisted by counsel de oficio
entered a plea of “not
guilty.” (see Brief for the Plaintiff-Appellee, p. 2).

Accused filed a motion to dismiss by way of demurrer to evidence
contending among others that the failure of the prosecution to present the
informant who allegedly bought the three (3) sticks of marijuana from him is
fatal.

In an Order dated August 23, 1990, the motion to dismiss was
denied.

After trial, the lower court rendered a decision on November 19,
1990, the dispositive portion thereof states:

“WHEREFORE, in view of the foregoing, judgment is hereby
rendered finding accused Reynaldo Abelita y Luquias guilty beyond reasonable
doubt of Violation of Section 4, Article II, Republic Act No. 6425 and sentenced
to suffer life imprisonment, to pay a fine of P20,000.00 and the costs of this
suit.

“Let the accused be
credited with whatever preventive imprisonment he has undergone by reason of
this case, pursuant to Article 29 of the Revised Penal Code.

“SO ORDERED.”
(Rollo, p. 23)

Hence, this appeal from the lower court’s decision raising the
following assignment of errors:

“I

“THE TRIAL COURT ERRED IN NOT
ACQUITTING THE ACCUSED ON THE GROUND OF INSUFFICIENCY OF EVIDENCE FOR THE
REASON THAT THE NBI FORENSIC EXPERT WAS NOT PRESENTED TO TESTIFY ON THE NBI
REPORT OF ITS FINDINGS.

“II

“THE TRIAL COURT ERRED IN CONVICTING
THE ACCUSED ON THE STRENGTH ALONE OF THE IMPROBABLE AND HEARSAY TESTIMONY OF
PROSECUTION WITNESS P/SGT. WILFREDO MENDOZA.” (Rollo, p. 38)

The antecedent facts of this case as recounted by the
prosecution’s lone witness Sgt. Wilfredo V. Mendoza are as follows:

“x x x

“(A)t about 12:15 o’clock in the morning of February 16, 1990,
he (Sgt. Wilfredo V. Mendoza) and his co-policemen, Pfc. Reynaldo Castil, Pat.
Jaime Acusin, Pat. Paulino Almazan, Pat. Jesus Echavez, Cpl. Eduardo Sablay and
Police Aide Diosdado Tubig, were patrolling the fishport compound at Northbay
Boulevard, Navotas when they were approached by a man who told them that a
certain ‘Toto’ was selling marijuana at Gilmar Beerhouse inside the
fishport. He then planned to have Toto
arrested and asked the informant if he could buy marijuana from Toto. When the informant agreed to the suggestion,
he gave the former a P10.00 bill on which he placed his initial (Exh.
“E”). The policemen and the
informant proceeded to Gilmar Beerhouse and the latter entered inside while the
policemen positioned themselves outside where they could see the interior of
the beerhouse through the open spaces on the wall of said beerhouse. The policemen saw the informant approach
Toto, who was occupying a table
at a distance of four (4) arms’ length from where they were positioned, and
give the money to the latter who, in turn, handed to the informant a small white package. The policemen then entered the beerhouse and
met the informant, who handed the package to Sgt. Mendoza. Pfc. Castil recovered from Toto a blue can
of Bonna milk which, when opened, was found to contain thirty seven (37) sticks
of marijuana and the P10.00 marked bill (Exhs. “D”, “D-1”
to “D-37” and “E”). The small white package handed by the informant to Sgt. Mendoza,
on the other hand, contained three (3) sticks of marijuana (Exh. “C”). Toto, whom Sgt. Mendoza identified in open
court as herein accused, was brought to the Navotas Police Station for investigation. The forty (40) sticks of marijuana were
brought to the National Bureau of
Investigation for laboratory examination, which gave positive result for
marijuana (Exh. “B”)” (Rollo, pp. 20-21).

Accused-appellant vehemently denied the charge particularly that
of ownership of the marijuana found inside the ‘Bonna’ milk can. He claimed that while he and his friend Jun
were drinking inside Gilmar Beerhouse at about midnight of February 16, 1990, three
policemen arrived and arrested them allegedly for owning the marijuana placed
in a can of milk being held by one of the policemen. He and Jun were brought to the Navotas Police Station where they
were asked to admit ownership of the marijuana which they denied (Rollo, pp.
21-22).

The lower court found the testimony of the lone prosecution
witness, Sgt. Mendoza more credible and presumed that he performed his duty in
a regular manner, in the absence of any evidence showing that he was actuated
by improper motive.

Furthermore, the lower court in finding the accused guilty of the
crime charged, noted that the accused did not deny the testimony of Sgt.
Mendoza that he (accused) delivered a small white package containing three (3) sticks
of marijuana to the informant in exchange of the P10.00 marked bill which was
subsequently recovered inside the can of milk.

Accused-appellant maintains that the failure of the prosecution
to present the forensic expert who prepared the NBI report of its findings that
the confiscated materials are indeed marijuana is fatal to its cause. Hence, in the absence of a clear and
conclusive evidence that such materials were prohibited drugs, the accused
stands to be acquitted on the ground of insufficiency of evidence.

Furthermore, appellant stresses that the fact that the
prosecution did not present the confidential informer as witness casts serious
doubt on appellant’s guilt because without the testimony of the poseur-buyer,
there is no convincing evidence to show that appellant sold marijuana.

After a careful examination of the records of the case, We find
no error to warrant the reversal of the finding of facts and conclusion of the
trial court.

The failure of the prosecution to present the forensic expert who
prepared the NBI report to establish the corpus delicti
of the crime is not fatal. The
records show that the accused and his counsel admitted the due execution and
genuineness of the evidence submitted by the prosecution witness Forensic
Chemist Felicisima M. Francisco during the pre-trial conference. Thereafter, the trial court issued an Order
dated April 11, 1990 which embodied the manifestation of the prosecution that
since the accused and his counsel admitted the genuineness and due execution of
the forensic chemist report, it is dispensing with the testimony of the
forensic expert. The trial court’s
Order dated April 11, 1990 is hereunder quoted as follows, to wit:

“Order

“x x x                                                                         x
x x

“At the pre-trial today, the accused and his counsel admitted
the due execution and genuineness of the evidence submitted by the prosecution
witness Forensic Chemist Felicisima M. Francisco, to wit:

“Exh. A – Letter request dated

February 16, 1990

Exh. B – Report No. DDM90-265

Exh. C – Three sticks of

marijuana wrapped on

a white paper

Exh. D – Empty Bona Milk can

Exh. D-1 – Thirty seven (37) sticks

of marijuana cigarettes

“In view thereof, the prosecution manifested that it is
dispensing with the testimony of F.M. Francisco and it is presenting two (2)
witnesses. The defense counsel
manifested, he will present two (2) witnesses. (p. 26, Record)” (Brief for the Plaintiff-Appellee, p. 6)

As pointed out by the Solicitor General, the accused-appellant
must have overlooked his admission as to the due execution and genuineness of
the forensic chemist report when he raised this first assignment of error.

We agree with the position of the Solicitor General that if the
matters taken up and embodied in the pre-trial order were not in accordance
with what was really stipulated upon, then accused-appellant should have
interposed his objections earlier or as soon as the pre-trial order was
issued. Hence, it is clear that upon
the accused-appellant’s failure to interpose objections, the facts stipulated
during a pre-trial conference and embodied in a pre-trial order bind the
parties.

In attacking the sufficiency of the evidence, the
accused-appellant avers that the informer should have been presented before the
lower court. The fact that the informer was never
presented in court by the prosecution is of no moment. His testimony, if it were given, would at
best be corroborative or cumulative.

This Court has ruled in several cases that non?presentation
of the informer, where his testimony would be merely corroborative or cumulative,
is not fatal to the prosecution’s case. (People v. Tangliben, G.R. No. 63630, April 6, 1990, 184 SCRA 220 citing
People v. Asis, G.R. No. 84960, September 1, 1989; People v. Viola, G.R. No.
64262, March 16, 1989; People v. Capulong, 160 SCRA 533 [1988] ‘People v.
Cerelegia, 147 SCRA 538).

The testimony of the lone prosecution witness is positive and
sufficiently clear to show that the accused-appellant committed the offense
herein charged. The prosecution witness
was not actuated by improper motive to fabricate the facts and to foist a very
serious offense against the accused-appellant. His knowledge was acquired in the performance of his official duty and
there being no showing that he is prejudiced against the accused-appellant, his
testimony deserves full credit.

In the light of the foregoing considerations, there is a clear
indication that the trial court did not commit any error in finding the
accused-appellant guilty beyond reasonable doubt of violation of Section 4, Article
II of Republic Act No. 6425.

ACCORDINGLY, the judgment of the trial court dated
November 19, 1990 is AFFIRMED.

SO ORDERED.

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