THE PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. ALEX QUERRER, DEFENDANT-APPELLANT.

The accused-appellant, Alex Querrer, was charged with violation of
Section 4, Republic Act No. 6425, as amended, in Criminal Case No. D-9877
before the Regional Trial Court, First Judicial Region, Branch 40, Dagupan
City. The information filed in said
case reads, as follows (p. 3, Rollo):

“That on or about
the 25th day of March, 1990, in the City of Dagupan, Philippines, and within
the jurisdiction of this Honorable Court, the above-named accused, ALEX
QUERRER, did then and there, wilfully, unlawfully and criminally, sell and
deliver dried ‘marijuana’ leaves or Indian hemp contained in a matchbox,
without authority to do so.

Contrary to Sec. 4, R.A. 6425, as amended.”

After trial on the merits, the trial court rendered its decision
on December 28, 1990, the dispositive portion
of which reads, as follows (p. 15, Rollo):

“WHEREFORE, the accused ALEX QUERRER is found guilty beyond
reasonable doubt of Violation of section 4, Republic Act No. 6425, as amended;
otherwise known as the Dangerous Drugs Act of 1972 and hereby sentences him to
suffer life imprisonment and to pay a fine of P30,000.00 with subsidiary imprisonment in case of
insolvency; and to pay the costs.

“SO ORDERED.”

Hence, the present appeal.

The facts of this case, as found by the trial court are, as follows (pp. 11-12, Rollo):

“Evidence for the
prosecution tends to show that on March 25, 1990, at 4:30 P.M., the Narcotics
Section Dagupan City Police Station conducted a ‘buy bust’ operation at
Fernandez Street, Dagupan City, against the accused Alex Querrer, a resident of
Rivera Street; that Patrolman Velasquez, a member of the Narcotics team
pretended to buy marijuana leaves from the accused with the use of marked
money; that Patrolman Velasquez, with an asset informer approached the accused;
that the rest of the team led by Cpl. Federico Mina were positioned strategically
within sight of the accused; that Cpl. Mina and Patrolman Arzadon were (in front) of the Wellington
Store, while Sgt. Orlando Garcia and
patrolman Gaspar Dacpano were at the lobby of Rodela Theatre; that the accused
was in between the Rodela Theatre and the Wellington Store; that the accused
ordered a certain boy to get the stuff (marijuana leaves); that the boy handed the marijuana leaves in
a matchbox to the accused and (who) in turned (sic) gave the matchbox to the
asset and the asset gave the boy P20.00 marked money (who) in turn gave
it to the accused; that immediately, the Narcotics team rushed towards Alex
Querrer and the asset; that Cpl. Federico Mina took the money from Alex
Querrer, and the matchbox of marijuana leaves (was) confiscated from the
accused when he was apprehended; that the Narcotics team and the accused proceeded to Poblacion, Calasiao, because
the accused led them to the source of marijuana leaves but found nothing; that
the accused was brought to the police station and he was investigated; that the
P20.00 bill with serial No. GV242353 was marked with an initial of Cpl.
Andaya and the date 3/25/90; that the accused was photographed as well as the
money and the matchbox of marijuana leaves; that an inventory of confiscated
marijuana leaves was made; that a communication or letter was prepared by
investigator Dacpano and sent to the Executive Director of Dangerous Drug Board
in Manila; that an inventory receipt of the confiscated marijuana leaves was
also prepared; and that the Forensic Chemistry Report by Demeline
Denton-dela Cruz, NBI, found the
specimen, positive result for marijuana.

“Evidence for the
defense tends to show that the accused Alex Querrer is 30 years old, single,
laborer and resident of Fernandez street, Dagupan City; that the accused
know(s) Federico Mina, Jr., Sgt. Garcia and Patrolman Velasquez; that he
(knows) Pat. Velasquez because he was his contemporary and they used to go in
the (sic) school in the University of Pangasinan; that on March 25, 1990, at
4:30 p.m. he was in a certain stall in the market where he used to work as
laborer; that he denied having sold a matchbox of marijuana leaves to an asset; likewise, he denied that
he was given P20.00 bill for the said (matchbox) of dried marijuana leaves;
that the accused denied the testimony of Cpl. Mina, Jr. to the effect that he
nodded his head to a certain Boy to sell a match(box) of dried marijauna leaves to the asset; that he denied that a matchbox of
dried marijuana leaves was confiscated from him; likewise, he denied that the
marked, P20.00 bill was confiscated from him; that the Boy referred to
by the policeman is now dead; that it was that certain Boy who sold that
marijuana leaves to the asset of the policemen; that the accused
admitted that he was brought to Poblacion, Calasiao, Pangasinan by Cpl. Mina,
Sgt. Garcia and Pat. Velasquez for the purpose of finding the (sic) Boy but was
not able to find him.”

As aforementioned, the trial court found the accused-appellant
guilty as charged rationalizing, as follows (pp. 13-14, Rollo):

“From the evidence, the Court finds that the accused Alex
Querrer was arrested in a buy bust operation conducted by the Narcotics Section
of the Dagupan City Police Station on March 25, 1990 at Fernandez Street, Dagupan
City; that when Patrolman Ireneo Velasquez who pretend(ed) to be a buyer
together with an asset/informer approached the accused, the latter ordered Boy
to get the stuff (Marijuana leaves); that Boy delivered to the asset the
marijuana leaves in a matchbox (Exhibit ‘E’) and received the P20.00
marked money from the asset which Boy gave to the accused; that at this
juncture, the policemen led by Cpl. Federico Mina, Jr. arrested the accused and
recovered from him the P20.00 bill marked money (Exhibit ‘H’) and the
asset handed the matchbox of marijuana leaves; that also recovered from the
accused (were) two (2) other (matchboxes) of marijuana leaves; that specimen of
the marijuana flowering tops and leaves stuffed in a matchbox recovered from
the accused was tested by the National Bureau of Investigation Forensic Chemist
and gave a positive result for
marijuana (Exhibit ‘F’); that colored pictures (Exhibit ‘G’) were taken of the
accused Alex Querrer (exhibit ‘G-1’) holding a partly open(ed) (matchbox) with
‘guitar’ marking showing a discern(i)ble small brownish mutilated object() in
his right hand (Exhibit ‘G-2’) and two (2) other partly opened (matchboxes)
showing similar substance (Exhibit ‘G-3’) and picture of one (1) partly
open(ed) (matchbox) and a P20.00 bill (Exhibit ‘D’); that an inventory
receipt (Exhibit ‘G-4’) dated March 26, 1990 was signed by Sgt. Orlando Garcia
(Exhibit ‘D-1’) and Cpl. Federico Mina, Jr., (Exhibit ‘D-2’); and that pursuant
to law a letter dated March 26, 1990 (Exhibit ‘C’) signed by Patrolman Gaspar
Dacpano, the investigator was sent to the Executive Director, Dangerous Drugs
Board, Manila.

“It is undisputed that the findings that the marijuana subject
of this case is one of the prohibited drugs
under Republic Act. No. 6425, as amended; that the accused Alex Querrer was
arrested in connection with the buy-bust operation conducted by the Dagupan
City Police authorities on March 25, 1990, at 4:30 p.m. at Fernandez Street,
Dagupan City; that Cpl. Federico Mina, Jr., Sgt. Orlando Garcia and Patrolman
Ireneo Velasquez actually participated in the said operation; and that the
marijuana subject of this case was confiscated
from the accused during the buy-bust operations.

“While it is true that the marijuana leaves were seized and
confiscated by the arresting officers without a search warrant, the seizure was made contemporaneously with the
arrest of the accused and at the place where the arrest was effected. The accused was lawfully arrested and search
was made incident to the arrest. (Agnelio
vs. U.S., 269 U.S. 30). Officers may
search premises of an accused even without a warrant if made contemporaneous
with the arrest and at the place where the arrest occurs. (U.S. vs. Coffman, 50 Supp. 823, July 6,
1953).

”As the taking of the dried marijuana leaves, was made
contemporaneous with the arrest, the seizure of said dried marijuana leaves
does not constitute illegally seized evidence.

“In the case at bar, the arrest of the accused could fall under the
pertinent exception provided under Rule 113, Sec. 5, (a). Par. (a) addresses a
situation where a crime is committed in the presence of the officer. It could be said that the accused was
committing a crime when he ordered Boy to get the stuff (marijuana leaves) and
to deliver the same to the asset of the policemen and received from Boy the P20.00
bill marked money as payment thereof.

“The bare denial of the accused can not prevail over the
positive testimony of the arresting officers. No evidence has been adduced by the defense to prove that the
prosecution witnesses (had) ill motive to testify against the accused.

“The Court finds the degree of proof which after
investigations of the whole record produces moral certainty in an unprejudiced
mind of accused’s culpability.

“The presumption of innocence of the accused has been
successfully overwhelmed by evidence beyond reasonable doubt to establish guilt
(.)”

In this appeal, the accused-appellant assigns a single error
committed by the trial court (p. 22, Rollo):

“I

“THE LOWER COURT ERRED IN NOT
ACQUITTING THE ACCUSED-APPELLANT FOR INSUFFICIENCY OF EVIDENCE.”

He maintains that it was not him who sold
and delivered the marijuana leaves to the asset of the police. As testified to by Cpl. Federico Mina, Jr.,
he (accused-appellant) never got hold of
the marijuana leaves, neither the money (tsn, Nov. 5, 1990, pp. 7, 9). The testimony of Pat. Irineo Velasquez
cannot be believed. It is almost
impossible that he sold the marijuana leaves and received the money in the
presence of the police whom he knows and who knows him.

We sustain the conviction of the accused-appellant by the trial
court.

The contentions of the Office of the Solicitor General in its
impressive brief has rendered unconvincing all the arguments of the
accused-appellant. We, therefore, adopt
it as Our own (pp. 49-53, Rollo):

“Appellant contends that his guilt has not been proven beyond
reasonable doubt. In support thereof,
he (capitalizes on) the testimony of prosecution witness, (Cpl.) Mina, that it
was the boy, and not appellant, who handed the marijuana to the civilian
informer.

“The contention is puerile.

“True it is that as testified by (Cpl.) Mina, it was the boy
who handed the marijuana to the civilian informer. However, (Cpl.) Mina further testified that precisely the boy handed
the marijuana to the civilian informer upon the order of appellant. Thus:

“x x x

“q. After Pat. Velasquez
and the asset you mentioned
approached the accused while you
were around 15 meters away, what did accused Alex Querrer do?

“a. Alex Querrer ordered somebody to get the stuff, and Pat. Velasquez did (sic) the
asset were able to confiscate the stuff leading to the apprehension of the
accused who was also apprehended for another matchbox of marijuana.

“q. What do you mean by stuff?

“a. The suspected
marijuana leaves, sir.

“q. Who give
(sic) the stuff to the asset?

“a. A boy
was ordered by the accused, sir.

“q. x x x.” (tsn., November 5, 1990, pp. 6-7; Italics
supplied for emphasis.)

“Moreover, (Cpl.) Pfc. Mina further testified that after the
boy received the marked money as payment for the marijuana, the boy handed the
marked money to appellant. All these
thus indicate too vividly appellant’s participation in the sale.

“Appellant,
however, contends as incredible his having
sold marijuana in the presence of policemen who he well knew and recognized,
more particularly (Cpl.) Mina and Sgt. Garcia who used to visit him at his
place and with (sic) whom he used to run errands for, and Pat. Velasquez who
used to be his classmate at the University of Pangasinan (tsn., December 17,
1990, pp. 3?4).

“The contention is futile.

“The fact that
appellant and the policemen were close acquaintances does not render it
incredible for appellant to have sold old marijuana in their presence. Precisely, it is because of friendship that
appellant entertained the wrong notion that the policemen, would not arrest him
despite his nefarious activity of selling marijuana. Besides, it only renders all the more credible that indeed
appellant when arrested was committing a crime because otherwise, the policemen
who are his friends would not have implicated him with so serious an offense as
drug pushing which is punishable by life imprisonment.

“In any event, the
issue boils down to (the) question on the (sic) credibility of witnesses. The trial court gave credence to the
testimonies of (Cpl.) Mina and Pat. Velasquez. Surely, this finding of the trial court should be sustained, consistent
with the principle of long use that on matters of credibility, the finding of
the trial court must be given the highest degree of respect (People v. Tintore,
111 SCRA 714; People vs. Bautista, 92 SCRA 465, 472). Besides, being police officers, (Cpl.) Mina and Pat. Velasquez
enjoy in their favor the presumption of regularity in the performance of their
duties (Rule 131, Section (5)(m), Revised Rules of Court).”

An additional observation weakens further the allegation of the
accused-appellant that inasmuch as it was
not him who sold and delivered the marijuana leaves to the asset of the police,
he should not be held liable for violation of Section 4, Republic Act No. 6425,
as amended.

Section 2 of said law defines the term “sell” as the
act of giving a dangerous drug, whether for money or any other material
consideration; and the term “deliver” as a person’s act of knowingly
passing a dangerous drug to another personally or otherwise, and
by any means, with or without consideration. It is thus impertinent that it was another
person who gave the marijuana leaves to the asset of the police. What is material is that the giving of the
marijuana leaves was pursuant to the instruction of the accused-appellant, as
Cpl. Mina, Jr. testified to categorically.

We, therefore, find that the guilt of the accused?appellant
for violation of Section 4, Republic Act No. 6425, as amended, has been proven beyond reasonable doubt. However, the imposition by the trial court
of subsidiary imprisonment in case of his failure to pay the fine, is
erroneous. Article 39(3) of the Revised
Penal Code is explicit that when the principal penalty imposed is higher than prision correccional,
no subsidiary imprisonment shall be imposed upon the culprit (People v. Andiza,
G.R. No. 71986-87, August 19, 1988, 164 SCRA 642; People v. Bati, G.R. No.
87429, August 27, 1990, 189 SCRA 97; People v. Domingo, et al., G.R. No. 82375,
April 18, 1990, 184 SCRA 409).

ACCORDINGLY, the decision appealed from is hereby AFFIRMED
subject to the modification that the imposition by the trial court of
subsidiary imprisonment is deleted.

SO ORDERED.

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