G.R. No. 99050. September 02, 1992
PEOPLE OF THE PHILIPPINES, PLAINTIFF-APPELLEE, VS. CONWAY B. OMAWENG, ACCUSED-APPELLANT.
DAVIDE, JR., J.:
Accused Conway B. Omaweng was originally indicted for the
violation of Section 4, Article II of Republic Act No. 6425, otherwise known as
the Dangerous Drugs Act of 1972, as amended, in a criminal complaint filed with
the Municipal Trial Court of Bontoc, Mountain Province on 12 September 1988.[1]
Upon his failure to submit counter-affidavits despite the granting of an
extension of time to do so, the court declared that he had waived his right to
a preliminary investigation and, finding probable cause against the accused,
ordered the elevation of the case to the proper court.[2]
On 14 November 1988, the Office of the Provincial Fiscal of
Mountain Province filed an Information charging the accused with the violation of Section 4, Article II of the
Dangerous Drugs Act of 1972, as amended. The accusatory portion thereof reads:
“That on or about September 12, 1988, at Dantay, Bontoc,
Mountain Province, and within the jurisdiction of this Honorable Court, the
above-named accused, without being authorized by law, did then and there
willfully, unlawfully and feloniously dispatch in transit or transport in a
Ford Fiera, owned and driven by him, 10¼ kilos of processed marijuana in powder
form contained in 41 plastic bags of different sizes which were placed in a
travelling bag destained (sic) and intended for delivery, disposition and sale
in Sagada, Mountain Province, with full knowledge that said processed marijuana
is (sic) prohibited drug or from which (sic)
prohibited drug maybe manufactured.
CONTRARY TO LAW.”[3]
The case was docketed as Criminal Case
No. 713.
After his motion for reinvestigation was denied by the Provincial
Fiscal,[4]
the accused entered a plea of not guilty during his arraignment on 20 June
1989.
During the trial on the merits, the prosecution presented four
(4) witnesses. The accused did not
present any evidence other than portions of the Joint Clarificatory Sworn
Statement, dated 23 December 1988, of prosecution witnesses Joseph Layong and
David Fomocod.
On 21 March 1991, the trial court promulgated its Judgment[5]
convicting the accused of the crime of transporting prohibited drugs penalized
under Section 4, Article II of R.A. No. 6425, as amended. The dispositive portion of the decision
reads:
“WHEREFORE, judgment is hereby rendered imposing upon the
accused herein the penalty of life imprisonment and a fine of Twenty Five
Thousand Pesos.
Pursuant to Sec. 20, Art.
IV of the aforecited special law, the drugs subject of the crime are ordered
confiscated and forfeited in favor of the Government. Accordingly, it is further directed that such drugs so
confiscated and forfeited be destroyed without delay per existing rules and
regulations on the matter.
Costs against the accused.
SO ORDERED.”[6]
Hence, this appeal.
In the Appellant’s Brief, accused imputes upon the trial court
the commission of the following errors:
“I
x x x IN
CONVICTING THE ACCUSED DESPITE INSUFFICIENCY OF EVIDENCE TO PROVE HIS GUILT
BEYOND REASONABLE DOUBT.
II
x x x IN NOT
CONSIDERING THE JOINT CLARIFICATORY STATEMENT OF THE ARRESTING OFFICERS TO THE
EFFECT THAT THE ACCUSED IS NOT THE OWNER OF THE PROHIBITED DRUG SUBJECT OF THIS
CASE.
III
x x x IN NOT RULING THAT THE CONTRABAND SUBJECT OF THE INSTANT CASE
IS INADMISSIBLE IN EVIDENCE FOR HAVING BEEN OBTAINED IN VIOLATION OF THE
CONSTITUTIONAL RIGHT OF THE ACCUSED AGAINST UNREASONABLE SEARCH (sic) AND
SEIZURE.”[7]
The appeal is without merit. The decision appealed from must be upheld.
After a careful review and evaluation of the evidence, We find to
have been fully proven the following facts as summarized by the Solicitor
General in the Brief for the Appellee.[8]
“In the morning of September 12, 1988, Joseph Layong, a PC
constable with the Mt. Province PC Command
at Bontoc, Mt. Province proceeded with other PC soldiers to Barrio Dantay,
Bontoc and, per instruction of their officer, Capt. Eugene Martin, put up a
checkpoint at the junction of the roads, one going to Sagada and the
other to Bontoc (TSN, November 9, 1989, pp. 3-4). They stopped and checked all vehicles that went through the
checkpoint (TSN, April 5, 1990, p. 12).
At about 9:15 A.M., Layong
and his teammate, Constable David Osborne Famocod (sic), saw and flagged down a
cream-colored Ford Fiera bearing Plate No. ABT-634 coming from the Bontoc
Poblacion and headed towards Baguio (TSN, November 9, 1989, pp. 4-5, 8). The vehicle was driven by appellant and had
no passengers (TSN, November 9, 1989, pp. 4-5).
Layong and his companions
asked permission to inspect the vehicle and appellant acceded to the request
(TSN, November 9, 1989, pp. 4-5). When
they peered into the rear of the vehicle, they saw a travelling bag which was
partially covered by the rim of a spare tire under the passenger seat on the right
side of the vehicle (TSN, November 9,
1989, pp. 6, 10, 11).
Layong and his companions asked permission to see the contents of
the bag (TSN, November 9, 1989, p. 6). Appellant consented to the request but told them that it only contained
some clothes (TSN, November 9, 1989, p. 6). When Layong opened the bag, he found that it contained forty-one (41)
plastic packets of different sizes containing pulverized substances (TSN,
November 9, 1989, pp. 7, 9).
Layong gave a packet to his team leader, constable David Osborne
Fomocod, who, after sniffing the stuff concluded that it was marijuana (TSN,
November 9, 1989, p. 16).
The PC constables, together with appellant, boarded the latter’s
Ford Fiera and proceeded to the Bontoc poblacion to report the incident to the
PC Headquarters (TSN, November 9, 1989, pp. 7-8). The prohibited drugs were surrendered to the evidence custodian,
Sgt. Angel Pokling (TSN, November 9, 1989, pp. 7-8).
Major Carlos Figueroa, a PC Forensic Chemist at Camp Dangwa, La
Trinidad, Benguet, who has conducted more than 2500 professional examinations
of marijuana, shabu and cocaine samples, conducted two chemistry examinations
of the substance contained in the plastic packets taken from appellant and
found them to be positive for hashish or marijuana (TSN, October 24, 1990, pp.
3, 5-81).”[9]
Anent the first assigned error, the accused contends that the
prosecution failed to prove that he is the owner of the marijuana found inside
the travelling bag which he had in his vehicle, a Ford Fiera. Proof of ownership is immaterial. Accused was prosecuted for the dispatching
in transit or transporting of prohibited drugs pursuant to Section 4, Article
II of R.A. No. 6425, as amended. This
section does not require that for one to be liable for participating in any of
the proscribed transactions enumerated therein, he must be the owner of the
prohibited drug. It simply reads:
“SEC. 4. Sale,
Administration, Delivery, Distribution and Transportation of Prohibited Drugs. — The penalty of life imprisonment to death
and a fine ranging from twenty thousand to thirty thousand pesos shall be
imposed upon any person who, unless authorized by law, shall sell, administer,
deliver, give away to another, distribute, dispatch in transit or transport any
prohibited drug, or shall act as a broker in any of such transactions. If the victim of the offense is a minor or
should a prohibited drug involved in any offense under this Section be the
proximate cause of the death of a victim thereof, the maximum penalty herein provided
shall be imposed.”
This section penalizes the pusher, who need not be the
owner of the prohibited drug. The law
defines pusher as “any person who sells, administers, delivers, or
gives away to another, on any terms whatsoever, or distributes, dispatches in
transit or transports any dangerous drug or who acts as a broker in any of such
transactions, in violation of this Act.[10]
In People vs.
Alfonso,[11] where the accused was charged with the
unlawful transportation of marijuana under the aforesaid Section 4, this Court
ruled that ownership is not a basic issue.
The facts, as proven by the prosecution, establish beyond cavil
that the accused was caught in the act of transporting the prohibited drug or,
in other words, in flagrante delicto. That he knew fully well what he was doing is shown beyond moral
certainty by the following circumstances: (a) the prohibited drug was found in a travelling bag, (b) he is the
owner of the said bag, (c) he concealed the bag behind a spare tire, (d) he was
travelling alone, and (e) the Ford Fiera in which he loaded the bag was under
his absolute control; pursuant to Section 4, Rule 133 of the Rules of Court (on
circumstantial evidence), the combination of all these circumstances is such as
to produce a conviction beyond reasonable doubt. Such circumstances, unrebutted by strong and convincing evidence
by the accused, even gave rise to the presumption that he is the owner of the
prohibited drug.[12]
The second assigned error is devoid of
merit. The declaration in the joint
clarificatory sworn statement executed by the apprehending officers, that the
marijuana subject of the case was surreptitiously placed by an unknown person
in the bag of the accused, is not supported by evidence. Said sworn statement cannot be used as a
basis for exoneration because the very same officers who signed the same
reiterated on the witness stand their statements in their original affidavit
implicating the accused; both the criminal complaint before the Municipal Trial
Court of Bontoc and the information in this case were based on this original
affidavit. No probative value could be
assigned to it not only because it was procured by the defense under
questionable circumstances, but also because the affiants therein merely
expressed their personal opinion. The
trial court’s correct exposition on this point, to which nothing more may be
added, deserves to be quoted, thus:
“From the portions of the ‘Joint Clarificatory Sworn
Statement’ of prosecution witnesses Layong and Fomocod cited (Exhs.
“I” to “I-C”; p. 155, Record), the defense would want this
Court to draw the inference that the accused Conway Omaweng is innocent as
confirmed by no less than the
persons who apprehended the suspect in flagranti (sic). In other words, that the said accused is not
the owner of the contraband confiscated but someone else; that to (sic)
mysterious individual placed the prohibited articles inside the travelling bag
of the accused without the knowledge and consent of the latter; and that the
identity of this shadowy third person is known by the PC/INP
investigators. The isolated
declarations, albeit under oath are much too asinine to be true and do not
affect the credibilities of the witnesses — affiants and the truth of their
affirmations on the stand. As gleaned
from parts of the record of the reÂinvestigation of this case conducted by the
Provincial Fiscal (Exhs. “G” and “D”; pp. 158 and 161,
Record), it appears that Layong and Fomocod were prevailed upon to affix their
signatures to (sic) the document styled as ‘Joint Clarificatory Sworn
Statement’ by interested persons in a vain ploy to extricate the accused from
the morass he got himself into. Testifying in open court, the same witnesses maintained the tenor of
their original affidavit supporting the filing of the criminal complaint in the
lower court (Exh. “C”; p. 2, Record). No additional information was elicited from said witnesses during
their examination from which it can reasonably be deduced that a third person
instead of the accused is the culprit and that the suspect is being framed-up
for a crime he did not commit. Nonetheless, granting arguendo that the declarations of Layong
and Fomocod now the bone of contention, are on the level, the same are but mere
opinions and conclusions without bases. Any which way, to believe that any person in his right mind owning
several kilos of hot hashish worth tens of thousands of pesos would simply
stash it away in the travelling bag of someone he has no previous agreement
with is a mockery of common sense. And
to think further that the PC/INP agents know of such fact yet they kept the
vital information under ‘confidential Status’ (whatever that means in police
parlance) while an innocent person is being prosecuted and practically in the
shadow of the gallows for the offense would be stretching human credulity to
the snapping point. By and large, the
fact remains as the circumstances logically indicate that the accused Conway
Omaweng has knowledge of the existence of the contraband inside his vehicle and
he was caught red-handed transporting the hot stuff.”[13]
The third assignment of error hardly deserves any
consideration. Accused was not
subjected to any search which may be stigmatized as a violation of his
Constitutional right against unreasonable searches and seizures.[14]
If one had been made, this Court would be the first to condemn it “as the
protection of the citizen and the maintenance of his constitutional rights is
one of the highest duties and privileges of the Court.”[15]
He willingly gave prior consent to the search and voluntarily agreed to have it
conducted on his vehicle and travelling bag. Prosecution witness Joseph Layong testified thus:
“PROSECUTOR AYOCHOK:
Q When
you and David Fomocod saw the travelling bag, what did you do?
A When
we saw that travelling bag, we asked the driver if we could see the contents.
Q And
what did or what was the reply of the driver, if there was any?
A He
said ‘you can see the contents but those are only clothings (sic).’
Q When
he said that, what did you do?
A We
asked him if we could open and see it.
Q When
you said that, what did he tell you?
A He
said ‘you can see it.’
Q And
when he said ‘you can see and open it,’ what did you do?
A When
I went inside and opened the bag, I saw that it was not clothings (sic) that
was contained in the bag.
Q And
when you saw that it was not clothings (sic), what did you do?
A When I saw that the contents were not clothes, I took some of the contents and showed it to my companion Fomocod and when Fomocod
smelled it, he said it was marijuana.”[16]
This testimony was not dented on cross-examination or rebutted by
the accused for he chose not to testify on his own behalf.
Thus, the accused waived his right against unreasonable searches
and seizures. As this Court stated in People vs. Malasugui:[17]
“x x x When one
voluntarily submits to a search or consents to have it made of (sic) his person
or premises, he is precluded from later complaining thereof (Cooley,
Constitutional Limitations, 8th ed., vol. I, page 631.) The right to be secure
from unreasonable search may, like every right, be waived and such waiver may
be made either expressly or impliedly.”
Since in the course of the valid search forty-one (41) packages
of drugs were found, it behooved the officers to seize the same; no warrant was
necessary for such seizure. Besides,
when said packages were identified by the prosecution witnesses and later on
formally offered in evidence, the accused did not raise any objection
whatsoever. Thus, in the accused’s
Comments And/Or Objections To Offer of Evidence,[18] We merely find the
following:
“EXHIBIT COMMENTS
AND/OR OBJECTIONS
“A”
The bag was not
positively identified to be the same bag allegedly found inside the vehicle
driven by the accused. The arresting
officers failed to show any identifying marks; thus, said bag is an irrelevant evidence not
admissible in court;
“A-1”
to “A-40” Objected
to also as irrelevant as the 40 bags now being offered are not the same bags
alleged in the information which is 41 bags. The prosecution failed to proved (sic) beyond reasonable doubt that
Exhibit “A-1” to “A-40” are the same bags allegedly taken from inside Exhibit “A” because
what is supposed to be inside the bag are 41 bags and not 40 bags.”
x x x
WHEREFORE, the decision of Branch 36 of the Regional Trial
Court of Bontoc, Mountain Province of 21 March 1991 in Criminal Case No. 713
finding the accused CONWAY B. OMAWENG guilty beyond reasonable doubt of the
crime charged, is hereby AFFIRMED.
Costs against the accused.
SO ORDERED.
Gutierrez, Jr., (Chairman), Bidin, and Romero, JJ., concur.
Feliciano, J., on official
leave.
[1]
Original Records, 1.
[2]
Id., 28-29.
[3]
Original Records, 30.
[4]
Id., 163.
[5]
Id., 355-361.
[6]
Original Records, 361.
[7]
Rollo, 149.
[8]
Rollo, 183, et seq.
[9]
Brief for the Appellee, 4-6.
[10]
Section 2 (m), R.A. No. 6425, as amended.
[11]
186 SCRA 576 [1990].
[12]
Section 3 (j), Rule 131, Rules of Court.
[13]
Original Records, 359-360; Rollo, 116-117.
[14]
Section 2, Article III, 1987 Constitution.
[15]
Rodriguez vs. Villamiel, 65 Phil. 230 [1937].
[16]
TSN, 9 November 1989, 6-7.
[17]
63 Phil. 221, 226 [1936]. See also Vda.
de Garcia vs. Locsin, 65 Phil. 689 [1938]; People vs. Donato, 198
SCRA 130 [1991]; People vs. Rodrigueza, 205 SCRA 791 [1992].
[18]
Original Records, 344.