g.r. No. 136267 People vs. Cubcubin

8/12/2019 g.r. No. 136267 People vs. Cubcubin

1/14

Republic of the Philippines

SUPREME COURT

Manila

EN BANC

G.R. No. 136267 July 10, 2001

THE PEOPLE OF THE PHILIPPINES,plaintiff-appellee,

vs.FIDEL ARENICA CUCUIN, JR., accused-appellant.

MENDO!A, J.:

This case is here on automatic revie of the decision,!dated "ctober #, !$$%, of the Re&ional Trial Court, Branch %%,

Cavite Cit', findin& accused-appellant (idel Abrenica Cubcubin, )r. &uilt' of murder and sentencin& him to suffer the

penalt' of death.

The information a&ainst accused-appellant alle&ed*

That on or about Au&ust +, !$$, in the Cit' of Cavite, Republic of the Philippines and ithin the

urisdiction of this /onorable Court, the abovenamed accused, armed ith an unlicensed homemade 0palti12

3mith and 4esson caliber .5% revolver, ith no serial number, ith intent to 1ill, actin& ith treacher' and

evident premeditation and ta1in& advanta&e of the dar1ness of 6the7 ni&ht, did, then and there, illfull',

unlafull', and feloniousl', assault, attac1 and shoot ith the aforesaid unlicensed firearm a certain /ENR8

PEC/" P9AM"NTE, hittin& and inflictin& upon the latter &unshot ounds in the head hich caused the

latter:s instantaneous death.

C"NTRAR8 T" ;A4.+

Accused-appellant pleaded not &uilt' to the char&e, hereupon trial on the merits ensued.

Ei&ht itnesses ere presented b' the prosecution* police officers (lorentino M. Malinao, )r., Enrico A. Rosal,

Ra'mundo


2/14

on the door for about three minutes before it as opened b' a man ho ansered the description &iven b'


3/14

side.

I 3tomach contains liJuid and little rice and ith alcoholic 0beer2 smell.

I "ther internal or&ans are si&nificantl' normal.

3lu&s etracted*

!. D. cm. in d6iameter7 lead slu& ith one end is mar1edl' deformed. The len&th of the slu& is !.

cms.Note* "ne dia&onal incised line as mar1ed on the slu&.

+. A D. cm. in d6iameter7 lead slu& . . . roundl'ovall' deformed 6on7 one end. The len&th of the slu&

is !.% cm.

Note* To dia&onal incised lines 6ere7 mar1ed on the said slu&.


4/14

upside don and openin& the cabinets. /is son, )humar, stood beside him. Before leavin&, the policemen too1 from

the clothes stand a hite t-shirt belon&in& to his son 02 That laborator' eamination

conducted b' the forensic chemist, )uliet ?elacio-Mahilum, shoed that the bloodstains on the hite F/anesF t-shirt

ere human blood, t'pe F",F hich matched the blood t'pe of the victim> and 02 That per ballistic eamination of

NB9 ballistician, 9sabelo


5/14

&round that these items had been sei@ed as incident to a laful arrest. 9t ruled that since


6/14

9n another case,5the accused, in a case of robber' ith rape, ere arrested solel' on the basis of the identification

&iven b' one of the victims. This Court held the arrest to be ille&al for lac1 of personal 1noled&e of the arrestin&

officers. More recentl', inPosadas v. m!udsman,5# this Court, in declarin& the arrest ithout arrant of to

Gniversit' of the Philippines students to be ille&al, held*

There is no Juestion that this case does not fall under para&raphs 0a2 and 0c2. The arrestin& officers in this case

did not itness the crime bein& committed. Neither are the students fu&itives from ustice nor prisoners ho

had escaped from confinement. The Juestion is hether para&raph 0b2 applies because a crime had ust been

committed and the NB9 a&ents had personal 1noled&e of facts indicatin& that 6the students7 ere probabl'&uilt'.

. . . .

6T7he NB9 a&ents in the case at bar tried to arrest 6the students7 four da's after the commission of the crime.

The' had no personal 1noled&e of an' fact hich mi&ht indicate that the to students ere probabl' &uilt'

of the crime. 4hat the' had ere the supposed positive identification of to alle&ed e'eitnesses, hich is

insufficient to ustif' the arrest ithout a arrant b' the NB9.

9ndeed, at the time 6the victim7 as 1illed, these 6NB97 a&ents ere nohere near the scene of the crime.

4hen 6the NB9 a&ents7 attempted to arrest 6the students7, the latter ere not committin& a crime nor ere

the' doin& an'thin& that ould create the suspicion that the' ere doin& an'thin& ille&al. "n the contrar',

6the'7, under the supervision of the G.P. police, ere ta1in& part in a peace tal1 called to put an end to the

violence on the campus.

Nor can it be ar&ued that the arrestin& officers had probable cause to believe accused-appellant to be &uilt' of the

1illin& of the victim because the' found a bloodstained t-shirt, a .5% caliber revolver, and to spent .5% caliber shells

in his house. At the time accused-appellant as arrested, he as not doin& an'thin& overtl' criminal. The alle&ed

discover' of the &un came after his arrest. Moreover, as ill presentl' be eplained, the obects alle&edl' sei@ed from

accused-appellant ere ille&all' obtained ithout a search arrant.

Be that as it ma', accused-appellant cannot no Juestion the validit' of his arrest ithout a arrant. The records sho

that he pleaded not &uilt' to the char&e hen arrai&ned on November !!, !$$. 9t is true that on Au&ust +%, !$$, he

filed a petition for reinvesti&ation in hich he alle&ed that he had been ille&all' detained ithout the benefit of a

arrant of arrest. 9n its order, dated 3eptember $, !$$, the trial court &ranted his motion and ordered the Cit'

Prosecutor to conduct a preliminar' investi&ation and submit his findin&s ithin thirt' 05D2 da's thereof. 5"n

"ctober , !$$, Cit' Prosecutor A&apito 3. ;u moved for the resettin& of accused-appellant:s arrai&nment from

"ctober %, !$$ to the first ee1 of November, !$$ on the &round that the findin&s on the laborator' and ballisticseaminations had not 'et been received from the NB9.5Accused-appellant did not obect to the arrai&nment. The

Cit' Prosecutor:s reJuest as, therefore, &ranted and the arrai&nment as reset to November !!, !$$. 5%Nor did

accused-appellant move to Juash the information on the &round that his arrest as ille&al and, therefore, the trial court

had no urisdiction over his person. 9nstead, on November !!, !$$, at the scheduled arrai&nment, accused-appellant,

ith the assistance of counsel, pleaded not &uilt' to the char&e.5$"n the same da', the trial court issued an order

statin& that, as a result of accused-appellant:s arrai&nment, his motion for preliminar' investi&ation had become moot

and academic and, accordin&l', set the case for trial.DAccused-appellant thus aived the ri&ht to obect to the le&alit'

of his arrest.!

S&'o().Accused-appellant contends that neither he nor his son &ave permission to the arrestin& police officers to

search his house and, therefore, the F/anesF t-shirt, the to spent slu&s, and the .5% caliber revolver alle&edl' found in

his house are inadmissible in evidence. The prosecution, on the other hand, insists that accused-appellant consented to

the search of his house.

To be sure, the ri&ht a&ainst unreasonable searches and sei@ures is a personal ri&ht hich ma' be aived epressl' or

impliedl'. But a aiver b' implication cannot be presumed. There must be persuasive evidence of an actual intention

to relinJuish the ri&ht. A mere failure on the part of the accused to obect to a search cannot be construed as a aiver

of this privile&e. (or as )ustice ;aurel eplained in Pasion "da de #arcia v.$ocsin,+FAs the constitutional &uarant'

is not dependent upon an' affirmative act of the citi@en, the courts do not place the citi@en in the position of either

contestin& an officer:s authorit' b' force, or aivin& his constitutional ri&hts> but instead the' hold that a peaceful

submission to a search or sei@ure is not consent or an invitation thereto, but is merel' a demonstration or re&ard for the

supremac' of the la.F


7/14

Because a arrantless search is in dero&ation of a constitutional ri&ht, peace officers ho conduct it cannot invo1e

re&ularit' in the performance of official functions and shift to the accused the burden of provin& that the search as

unconsented. 9t is noteorth' that the testimonies of the to prosecution itnesses, 3P"! Malinao, )r. and P"5

Rosal, on the search sho laborious effort to emphasi@e that accused-appellant &ave them permission to search his

house. At ever' turn, even hen the' ere not bein& as1ed, the' said the search as made ith the consent of the

accused. As 3ha1espeare ould put it, Fthe lad' doth protest too much, methin1s.F 9ndeed, not onl' does accused-

appellant stoutl' den' that he ever consented to the search of his dellin& but the prosecution has not shon an' &ood

reason h' accused-appellant mi&ht have a&reed to the search.The prosecution sa's the search can be ustified as incidental to a valid arrest. Even assumin& the arrantless arrest to

be valid, the search cannot be considered an incident thereto. A valid arrest allos onl' the sei@ure of evidence or

dan&erous eapons either in the person of the one arrested or ithin the area of his immediate control. The rationale

for such search and sei@ure is to prevent the person arrested either from destro'in& evidence or from usin& the eapon

a&ainst his captor. 9t is clear that the arrantless search in this case cannot be ustified on this &round. (or neither the

t-shirt nor the &un as ithin the area of accused-appellant:s immediate control. 9n fact, accordin& to the prosecution,

the police found the &un onl' after &oin& bac1 to the house of accused-appellant.

Nor can the arrantless search in this case be ustified under the Fplain vieF doctrine. As this Court held inPeople v.

%usa*5

The Fplain vieF doctrine ma' not, hoever, be used to launch unbridled searches and indiscriminate sei@ures

nor to etend a &eneral eplorator' search made solel' to find evidence of defendant:s &uilt. The Fplain vieF

doctrine is usuall' applied here a police officer is not searchin& for evidence a&ainst the accused, but

nonetheless inadvertentl' comes across an incriminatin& obect. 6Coolid&e v. Ne /ampshire, D5 G.3. 5,

+$ ;.Ed. +d # 0!$!27 (urthermore, the G.3. 3upreme Court stated the folloin& limitations on the

application of the doctrine*

4hat the Fplain vieF cases have in common is that the police officer in each of them had a prior

ustification for an intrusion in the course of hich he came inadvertentl' across a piece of evidence

incriminatin& the accused. The doctrine serves to supplement the prior ustification hether it be a

arrant for another obect, hot pursuit, search incident to laful arrest, or some other le&itimate

reason for bein& present unconnected ith a search directed a&ainst the accused and permits the

arrantless sei@ure. "f course, the etension of the ori&inal ustification is le&itimate onl' here it is

immediatel' apparent to the police that the' have evidence before them> the Fplain vieF doctrine

ma' not be used to etend a &eneral eplorator' search from one obect to another until somethin&

incriminatin& at last emer&es. 6&d., +$ ;.Ed. +d #%5. See also Teas v. Bron, D G.3. 5D, # ;. Ed.+d #D+ 0!$%527

/ere, the search of accused-appellant:s house as ille&al and, conseJuentl', the thin&s obtained as a result of the

ille&al search, i.e., the hite F/anesF t-shirt, to spent shells, and the .5% caliber &un, are inadmissible in evidence

a&ainst him. 9t cannot be said that the .5% caliber &un as discovered throu&h inadvertence. After brin&in& accused-

appellant to the 3tin& Cafe here he as positivel' identified b' a aitress named


8/14

. . . .

4ere the' to&ether hen the' left 3tin& Cafe or the' left one after the otherO

A 4hen the' ere alread' brin&in& alon& ith them the to bottles of beer, the' tal1ed and afterards, 9

alread' left them and 9 served the other customers.


9/14

after the commission of the crime. This is the second t'pe of positive identification, hich, hen ta1en to&ether ith

other pieces of evidence constitutin& an unbro1en chain, leads to a fair and reasonable conclusion that the accused is

the author of the crime to the eclusion of all others.

This rule, hoever, cannot be applied in the present case because 0b2 the facts from hich the

inferences are derived are proven> and 0c2 the combination of all the circumstances is such as to produce a conviction

be'ond reasonable doubt.

9n the case at bar, there are serious doubts as to hether the crime as committed b' accused-appellant in vie of the

folloin&* 0!2 As alread' stated, 052 3P"! Malinao, )r. testified that the hite F/anesF t-shirt as Fbloodied,F but the evidence shos that it had

some bloodstains onl' on its loer portion 0Eh. /2, hile the photo&raph of the t-shirt 0Ehs. B-+, B-+-A, B-+-B2,

supposedl' ta1en at the time of the search, shos that it had no bloodstains and this discrepanc' as not eplained b'

3P"! Malinao, )r.> 02 The fact that the t-shirt as tested positive for t'pe F"F blood does not necessaril' mean that

the bloodstains came from the victim ho also had a t'pe F"F blood> 0#2 Accused-appellant as never &iven a

paraffin test to determine if he as positive for &unpoder nitrates> 0%2 The .5% caliber &un alle&edl' found in his

house as not eamined for the possible presence of accused-appellant:s fin&erprints> and 0$2 The alle&ation that the

&un as placed on top of a ater container in accused-appellant:s house is unbelievable as it is improbable thataccused-appellant could be so careless as to leave the fatal eapon there hen he could have hidden it or thron it

aa'.

Nor can e rest eas' on the prosecution:s claim as to here the to empt' shells and the t-shirt ere alle&edl' found.

3P"! Malinao, )r. testified that these ere placed beside the hite F/anesF t-shirt and fell hen he too1 the shirt. "n

direct eamination, 3P"! Malinao, )r. said*

PR"3ECGT"R ;G*

4hat else did 'ou tell Cubcubin at that timeO

A 4e as1ed him to allo us to &o inside the house and he let us &o inside the house, then after enterin&

the same, hile e ere in the sala near the 1itchen e sa the hite /anes t-shirt there, 3ir, that as near

the 1itchen. 4here eactl' as the hite t-shirt placed at that time hen 'ou sa the sameO

A Because after enterin& the house 'ou ill see the entire portion of that house and there is a table there

and that t-shirt as placed on the table.

4as that t-shirt visible from the front door of the houseO

A 8es, 3ir.

Can 'ou describe to us the t-shirt that 'ou saO

A Before 9 &ot the t-shirt, 9 even as1ed his permission for me to be able to &et the t-shirt, 3ir, and he even


10/14

&ave me the permission to &et the same, after &ettin& the t-shirt there ere even + empt' shells hich fell, and

9 sa the t-shirt as ith blood stains.

This hite t-shirt, can 'ou tell us the brand of the t-shirtO

A /anes, 3ir.

/o about the blood spot or blood stains, can 'ou tell us ho man', if 'ou can rememberO

A 4e ere in a hurr', 9 did not count the blood stains an'more but there ere blood stains on the t-shirt,3ir.

/o about these + empt' shells that fell hen 'ou lifted the t-shirt, can 'ou describe to us these +

empt' shellsO

A Empt' shells of .5% cal. bullets, 3ir.

4hat did 'ou do ith the empt' shellsO

A 9 &ot the t-shirt as ell as the + empt' shells and 9 shoed them to him, 3ir.#D

/oever, on cross-eamination, he said he found the empt' shells on top of a cabinet 0to'ador2 in the bedroom on the

second floor of the house. Thus, he testified*

ATT8. BA8BA8*

4here as this t-shirt a&ain hen 'ou first sa itO

A 9n the 1itchen area, 3ir.

4here in the 1itchen area, on the floor or on the allO

A 9t as immediatel' in front of the door because the house has no divider an'more, 3ir.

And that t-shirt as immediatel' near the door, on the floorO

A 8es, 3ir.

4hat did 'ou do after that, hen 'ou sa the t-shirt thereO

A 9 as1ed his permission so that 9 could ta1e a loo1 at the t-shirt, 3ir.

And 'ou said, 'ou loo1ed at itOA 8es, 3ir.

4hen 'ou said, 'ou loo1ed at it, ho did 'ou loo1 at itO

A 9 spread it out in front of him, 3ir.

And hen 'ou spread it out in front of him, did 'ou as1 him hose t-shirt is itO

A 9 as1ed him if that t-shirt belon&s to him, 3ir.

4hat did he sa'O

A Accordin& to him, the t-shirt does not belon& to him, 3ir.

8ou also testified that 'ou found to empt' shellsO

A 8es, 3ir.

4here did 'ou find these to empt' shellsO

A (rom the bedroom upstairs, 3ir.

Bedroom upstairsO

A 8es, 3ir.

8ou mean, it is a to-store' houseO

A 8es, 3ir, there is a bedroom upstairs.


11/14

8ou found it hen 'ou ent upO

A 9 first as1ed his permission to loo1 around inside the house, 3ir, because 9 as as1in& him also about

the hereabouts of the firearm he had.

And he alloed 'ouO

A /e alloed me, sir.

And hen 'ou ent upstairs, 'ou found the to empt' shellsOA 8es, 3ir, the' ere placed on their to'ador on a place here there is a curtain.

9n 'our previous testimon' and this is found on pa&e ! of the T3N, 'ou stated that 'ou &ot the t-shirt

and hen 'ou lifted the t-shirt, to empt' shells fell offO

A After findin& the to empt' shells for a .5% caliber, 3ir, 9 placed them to&ether ith the t-shirt.

4hat 'ou are tellin& us no is that 'ou ent upstairs, 'ou found to empt' shells and 'ou put them

to&ether ith the t-shirt, that is hat 'ou are tellin& us noO

A After findin& and ta1in& a loo1 at the t-shirt, 9 put it on the ori&inal place here it as, 3ir, and after

findin& the to empt' shells, it so happened that the investi&ator as behind me so after that, 9 shoed to him

the t-shirt as ell as the empt' shells.#!

. . . .

Also in 'our previous testimon', 'ou &ot the t-shirt and 'ou as1ed the permission to &et the t-shirt, after

&ettin& the t-shirt, there ere + empt' shells hich fell. The Juestion is, do 'ou remember that this happenedO

A These to empt' shells hich 9 recovered upstairs, sir, 9 placed them on top of the t-shirt.

8ou said, hen 'ou &ot the t-shirt, somethin& fell, in 'our direct testimon'O

A 4hile (idel Cubcubin as ust beside me, 3ir, 9 &ot the t-shirt, 9 spread it out and nothin& fell 'et at that

time, then 9 as1ed him about the firearm that he used.

. . . .


12/14

here 'ou found itO

A 9 placed it there the a' 9 sa it before, the a' it as previousl' placed there, 3ir, because 9 as

plannin& to brin& the t-shirt.#+

Thus, cau&ht in his on contradiction, 3P"! Malinao, )r. prevaricated but in the process committed more

contradictions. /e said he found the empt' shells on top of the to'ador on the second floor of the house, brou&ht them

donstairs, and then placed them on the t-shirt. 4hen he &ot the t-shirt, the empt' shells fell on the floor. But ho

could he have &otten the shells from the second floor if, accordin& to him, he found them b' accident hen the' fellfrom the t-shirt hich he found immediatel' after enterin& accused-appellant:s house and before &oin& up to the

second store'O 9t is also noteorth' that hereas at first 3P"! Malinao, )r. said he found the t-shirt placed on the

table near the 1itchen, he later said he found it on the floor.

4/ERE("RE, the decision of the Re&ional Trial Court, Branch %%, Cavite Cit', findin& accused-appellant (idel

Abrenica Cubcubin, )r. &uilt' of the crime of murder, is RE=ER3E< and accused-appellant is hereb' ACG9TTE T3N, pp. #-, )an. 5D, !$$%.

+Records, p. $5.

+#&d.,p. $> T3N, pp. %-!, )an. 5D, !$$%.

+T3N, pp. #-#, )une +5, !$$%.

+&d.,pp. 5$-, #-.

+%T3N, pp. -5#, )une $, !$$%.

+$T3N, pp. 5-+D, )une +5, !$$%.

5DRollo, p. !5$.

5!&d.,p. !!.

5+People v. Mahusa', +%+ 3CRA %D 0!$$2> See also Posadas v. "mbudsman, ?.R. No. !5!$+, 3eptember

+$, +DDD> Cadua v. Court of Appeals, 5!+ 3CRA D5 0!$$$2> People v.


14/14

#!T3N, pp. -%D, )an. +5, !$$% 0emphasis added2.

#+&d.,pp. %-$D 0emphasis added2.

The ;aphil Proect - Arellano ;a (oundatio

g.r. No. 136267 People vs. Cubcubin

Documents

Transcript of g.r. No. 136267 People vs. Cubcubin