MEYERS v. UNITED STATES 171 F .2d 800 (1948) MEYERS v. UNITED STATES. No. 9797.

United States Court of Appeals District of Columbia Circuit. Argued June 14, 1948. Decided November 8, 1948. Writ of Certiorari Denied February 14, 1949. Mr. Robert T. Bushnell, of Boston, Mass., with whom Messrs. Russell Hardy and Smith W. Brookhart, both of Washington, D. C., were on the brief, for appellant. Mr. George Morris Fay, U. S. Atty., of Washington, D. C., with whom Mr. Edward Molenof, Sp. Asst. to the Atty. Gen., and Messrs. John W. Fihelly, Sidney S. Sachs and Ross O'Donoghue, Asst. U. S. Attys., all of Washington, D. C., were on the brief, for appellee. Before WILBUR K. MILLER, PRETTYMAN and PROCTOR, Circuit Judges. WILBUR K. MILLER, Circuit Judge. Bleriot H. Lamarre and the appellant, Bennett E. Meyers, were jointly indicted for violating the District of Columbia statute1 which denounces perjury and subornation thereof. Three counts of the indictment charged Lamarre with as many separate perjuries in his testimony before a subcommittee of a committee of the United States Senate constituted to investigate the national defense program, and three more counts accused Meyers of suborning the perjuries of his codefendant. Lamarre pleaded guilty to all three charges when he was arraigned on December 19, 1947, a few days after the return of the indictment. Meyers entered a plea of not guilty and was tried before a jury in the District Court of the United States for the District of Columbia. At the conclusion of the government's evidence, he moved for a judgment of acquittal, which the court denied. Meyers did not take the stand or introduce any evidence.

Having been found guilty under each of the three counts against him, he appeals. Meyers was an officer in the United States Army. In 1939, while stationed at Wright Field, near Dayton, Ohio, he organized under the laws of Ohio a corporation called Aviation Electric Corporation, and paid into its treasury the sum of $500 to cover its authorized capital consisting of 250 shares of common stock having a par value of $2 each. At his direction, a certificate for 224 shares was issued to Miss June Ballaou, an employee at Wright Field, and the remaining shares were divided between one David Johnson and one Robert L. Pine. The newly organized company engaged in manufacturing parts and accessories for airplanes, and soon had on hand orders from the Signal Corps of the United States Army aggregating about $20,000. The appellant had become acquainted with Lamarre and his wife as early as 1936 or 1937 and apparently was fond of them. Late in 1939, he went to see Lamarre in California, where the latter was employed by an airplane company, and suggested that he come to Dayton to become associated with Aviation Electric in an executive capacity. The invitation was accepted and in January, 1940, Lamarre was made secretary-treasurer of the corporation and the Ballaou certificate for 224 shares was transferred to him without valuable consideration. A few months thereafter he became president of the company. From its modest beginning in 1939 the operations of Aviation Electric Corporation expanded substantially and rapidly. It obtained contracts to furnish parts to large corporations engaged in producing aircraft for the United States Army. Meyers advanced considerable sums for working capital and took therefor the company's promissory notes which were secured by the pledge and delivery to him of certificates, endorsed in blank, evidencing all its capital stock. The appellant was transferred to Washington in 1941 and the next year became Deputy Chief of Procurement of Aircraft and Aircraft Parts for the Army Air Force. Meanwhile, Aviation Electric was operating successfully and profitably so that by the end of 1942 all Meyers' loans had been repaid. Large profits were earned as long as the war continued, but the termination of actual hostilities so reduced the demand for its products that the corporation was dissolved in September, 1946. Desiring to ascertain whether there had been instances of waste, fraud, corruption, mismanagement, excessive profits or inefficiency in the nation's war effort, entailing as it did the hurried expenditure of billions of dollars for national defense, the United States Senate created the investigating committee to which reference has been made. In the course of an inquiry into government contracts with a large airplane supplier, the appellant testified before that committee. It developed during the hearing that Aviation Electric Corporation had been a sub-contractor on government work and that Lamarre had been its president from 1940 until its dissolution in 1946. In order to ascertain what connection, if any, the appellant had had with Aviation Electric, the subcommittee subpoenaed Lamarre, who testified on Saturday, October 4, and Monday, October 6, in 1947. That testimony

[ 171 F.2d 803 ] brought about the indictment which was the genesis of the case now before us. Three of the indictment's counts charged that Lamarre: (1) knowingly and willfully testified falsely that Meyers "was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio," during the years 1940 to 1947, inclusive; (2) knowingly and willfully testified falsely that a Cadillac automobile purchased in Washington by Meyers, and paid for by Aviation Electric Corporation, was purchased for the corporation and for its use; (3) knowingly and willfully testified falsely that the sum of $10,000, paid by means of Aviation Electric's checks, for decorating and furnishing Meyers' Washington apartment "was a gift from himself, Bleriot H. Lamarre." Although the appellant was convicted on three counts, each of which charged him with suborning one of Lamarre's perjuries, he received only one sentence.2 That being true, the judgment must be affirmed if appellant was properly convicted on any one of the three counts against him.3 We shall consider, nevertheless, appellant's assignments of error with respect to all the counts. 1. As to Meyers' financial interest in or connection with Aviation Electric Corporation. On this subject, the first count of the indictment includes the following: "* * * In the course of his [Lamarre's] testimony it became material whether Bennett E. Meyers was financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, or 1947; and being questioned in that regard, Bleriot H. Lamarre on October 4 and October 6, 1947, and in the District of Columbia wilfully and contrary to his said oath testified falsely that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years or any of them, whereas in truth, as Bleriot H. Lamarre knew, Bennet E. Meyers was financially interested in and connected with the said Aviation Electric Corporation during each and all the years 1940, 1941, 1942, 1943, 1944, 1945, 1946 and 1947." Appellant's counsel earnestly assert and ably argue that Lamarre did not testify before the subcommittee that Meyers was not financially interested in or connected with Aviation Electric; but that, quite to the contrary, Lamarre told the subcommittee Meyers actually owned the business. If that contention be well founded, it is a complete defense to the charge that Meyers suborned the perjury alleged in the first count. It is elementary that one cannot be convicted of suborning a perjury which was not in fact committed; that is to say, there can be no subornation of perjury if there was no perjury. It is equally true that one cannot be convicted of suborning perjury if the alleged perjurious statement actually was not made by the alleged perjuror. [ 171 F.2d 804

] No matter how unorthodox, unpatriotic, reprehensible or criminal the evidence may tend to show Meyers' conduct to have been, his conviction under the first count cannot stand if Lamarre did not in fact testify as the count charged that he did. So, at the threshold of our consideration of the first count, we must decide whether Lamarre in fact told the subcommittee Meyers was not financially interested in or connected with Aviation Electric. If it be found that he did so testify, then it will be pertinent to see whether the statement was true or false; and, if false, whether Meyers suborned it. Whether Lamarre represented to the subcommittee that Meyers was not financially interested in or connected with the company is to be determined by finding the meaning or significance which is fairly attributable to all Lamarre's testimony before the subcommittee. A stenographically reported record of that testimony was put in evidence and is before us. Appellant's insistence that Lamarre did not say what the first count charged him with saying, but said exactly the opposite, is based on the fact that Lamarre was asked this question, "So you understood all of the time that for all practical purposes, he [Meyers] owned the business?"; and that Lamarre answered by saying, "That is right," and then continued with other statements to that effect. This bit of testimony, taken from its context and read without reference to or consideration of the remainder of Lamarre's evidence, supports appellant's contention that, regardless of the truth or falsity of the statement which the first count attributed to Lamarre, he simply did not say what he is alleged to have said, but definitely stated exactly the contrary. So, if Lamarre's answer to the quoted question were all he said on the subject, we should have no difficulty in accepting appellant's argument, and in holding that Lamarre did not commit the first perjury charged against him and that, therefore, Meyers was wrongly convicted of suborning it. We turn first to the subcommittee counsel's examination of Lamarre, in the course of which he made the statement upon which appellant now relies as a defense to the first count, in order to see whether the context4 of the statement limits the absolute [ 171 F.2d 805 ] meaning which it appears to have when standing alone. The setting in which the statement appears shows that in making it Lamarre was referring to the occasion in 1940 when a large part of the stock had just been transferred to him and endorsed back to Meyers to serve as collateral. It is, however, perfectly clear from the evidence as a whole that Lamarre did not intend to be understood as meaning that from 1940 until 1947 Meyers was for all practical purposes the owner of the business. For example, when Lamarre was asked, "It [the stock] belonged to Meyers all the time?", he answered, "No, sir, it did not." He was then asked, "Well, then, when did it

become yours, actually yours?" and he replied, "When the notes were paid off." He added, "It had always been mine as a matter of fact." Even if this were not so, and if it be conceded arguendo that Lamarre unqualifiedly stated with respect to the entire period involved that Meyers had no financial interest in or connection with the corporation, it would remain true that he also later testified to the subcommittee that Meyers had no interest at any time after Lamarre's association with the company began except as a creditor, and that he ceased to have even that interest after 1942.5 The criminal nature of perjury is not removed, the Supreme Court has said, by the fact that the perjurer later in the proceeding states the truth; that is to say, recantation following perjury does not destroy its criminality. United States v. Norris, 1937, 300 U.S. 564, 573, 57 S.Ct. 535, 81 L.Ed. 808. We see no reason why the principle should not apply with even greater force when perjury follows truthful testimony and so is the last and unrecanted choice of its author. In the present case, even if the true statement (that Meyers was for all intents and purposes the owner of the business) be given the full implication and effect which appellant finds in it, and so be regarded as applying to all the years involved, it was followed by falsehood when Lamarre emphatically and repeatedly swore Meyers had no sort of interest in the company after 1942. His last choice was perjury. From the quotations shown in the margin as note 3, it will be observed that, just before making the statement which appellant says absolves him, Lamarre stated, "I would not say" it was Meyers' stock. And shortly after having made the statement upon which appellant relies, Lamarre insisted that the endorsed certificates were held for Meyers only so long as the company owed him money, that he considered the stock as income to himself, that it did not belong to Meyers all the time but actually became his [Lamarre's] when the notes were paid.6 Although he had given no consideration to Meyers or to any other person [ 171 F.2d 806 ] for the shares transferred to him at Meyers' instance, he told the senators, "It had always been mine as a matter of fact" and that he felt under no obligation to pay Meyers for it. A reading of all Lamarre's testimony on the subject shows convincingly and beyond any doubt that he was trying to get the subcommittee to believe Meyers had no actual or beneficial stock ownership in the company, and that he bore to it merely the relation of creditor, a relation which ended in 1942. This is true despite the fact that he said he understood Meyers owned the company for all practical purposes. That statement may not be isolated and thereby given a meaning wholly different from the clear significance of the testimony considered as a whole. Appellant himself states the law to be that a charge of perjury "may not be sustained by the [ 171 F.2d 807 ]

device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows." He cites Fotie v. United States, 8 Cir., 137 F.2d 831, and other cases to the same effect. The principle is sound, but has no application here. It is the appellant who seeks to sustain his defense "by the device of lifting a statement of the accused out of its immediate context and thus giving it a meaning wholly different than that which its context clearly shows." Since a charge of perjury may not be sustained in that manner, it follows corollarially that a defense to a charge of perjury may not be established in that fashion. From the evidence as a whole we have no difficulty in concluding that Lamarre told, and intended to tell, the subcommittee that Meyers held no stock in the company, either actually or beneficially, after the shares were issued to Lamarre in 1940; that Meyers had no interest of any kind after that except he was a creditor and held the capital stock as collateral; and that after 1942 Meyers had no sort of interest in or connection with the company. Having so determined, it is next necessary to ascertain whether that statement was false and known to be false to Lamarre when he testified, so as to stamp it as perjury. Not only did Lamarre plead guilty to the charge of perjury made against him because of his representation to the subcommittee that Meyers was not interested in or connected with the corporation; he also testified fully and freely at Meyers' trial that he had knowingly and willfully falsified in that respect before the subcommittee, and that in fact Meyers was at all times the real owner of the company. Lamarre testified further at the trial that, during the years involved, his own salary as secretary and treasurer, and later as president, was fixed at sums varying from $20,000 to $30,000 per annum and that it was so shown on the books of the corporation. Company checks were regularly drawn to Lamarre's order in payment of his ostensible salary but in fact he was allowed to keep as his own only a modest compensation. By far the larger part of the salary credited to Lamarre on the books of the corporation was remitted by him to Meyers, usually in the form of cashiers' checks. A similar arrangement was followed with respect to the salary of T. E. Readnower, Lamarre's brother-in-law, whose apparent salary was $18,600, of which some $15,000 went to Meyers. By this device and other subterfuges, such as the purchase of an automobile and the furnishing of an apartment, Meyers received more than $150,000 from the company during the years involved, in addition to the repayment to him of the sums which he advanced from time to time for working capital. The checks by which Aviation Electric paid the purported salaries, and the cashiers' checks by which the money was transmitted to Meyers, were in evidence and in our view constitute sufficient corroboration of Lamarre's testimony that he testified falsely before the subcommittee. Meyers' subornation of this perjury was proved by the evidence of Lamarre that on the day before his first appearance before the subcommittee the appellant instructed him to swear "Meyers had no financial interest or any other interest other than the money that he had

loaned to the corporation and which had been repaid to him by the middle of 1942." It thus appears that, contrary to appellant's contention, the evidence showed Lamarre actually made the statements and representations to the subcommittee which the first count charged; that his testimony was false and was given knowingly and willfully; and that Meyers suborned the perjury. 2. As to the count which charged Lamarre with perjury concerning the purchase of the Cadillac automobile. As to this count7 the indictment charged the following: "* * * In the course of his [Lamarre's] testimony on these dates it became material whether a Cadillac automobile which he testified Bennett E. Meyers had purchased with funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio, on or about January 1, 1942, had been purchased for [ 171 F.2d 808 ] the personal use of Bennett E. Meyers or for the use of the said Corporation. The fact was, as Bleriot H. Lamarre then knew, that that automobile had been purchased for the personal use of Bennett E. Meyers. Bleriot H. Lamarre nevertheless wilfully and contrary to his said oath testified falsely before the subcommittee on the dates and at the place aforesaid that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation." With respect to this charge the appellant makes in his brief the following categorical comment: "The transcript disclosed that Lamarre had given no testimony whatsoever that the car had, or had not, `been purchased for the personal use of Bennett E. Meyers or for the use of the said Corporation.' There is not a word in this transcript of any testimony by Lamarre, false or true, that the car referred to had been purchased for the personal use of appellant or for the use of the Corporation." A factual issue is thus raised which is to be resolved by resorting to the record. Lamarre swore to the subcommittee that at the end of 1941 he asked General Meyers to buy an automobile for him and that Meyers did buy in Washington the Cadillac sedan; that it remained in Washington for several weeks because when he came for it the weather was bad and he was forced to return to Dayton on a train. He also testified substantially as follows: he left the car with Meyers until he later was able to transport it to Dayton, where it was used as the company car8 by him and Curnutt, Meyers' fatherin-law, who also was an Aviation Electric employee. Aviation Electric paid for the automobile and carried it on its books as an asset until 1944 or 1945, when Curnutt bought it from the company at its then book value of $1,400. The sale was made because the company had no further use for the car. It is, therefore, plain that Lamarre told the subcommittee substantially what the second count of the indictment charged. At the trial Lamarre testified that his statements to the subcommittee were false and that in truth Meyers telephoned him from Washington and instructed him to send a company check for approximately $3,000 as he wanted to purchase a Cadillac; that the check was sent and the automobile was purchased but that the company never had possession of it.

There was ample corroboration of Lamarre's testimony that the automobile was bought for and used by Meyers. The manager of the garage at Hotel 2400, where Meyers' apartment was located, testified that early in 1942 the appellant stored in the hotel garage a new 1942 blue Cadillac which he kept there until he left on August 27, 1944. The car was kept as "live storage," meaning that it was cleaned nightly and used almost daily by Meyers or his wife. The storage was charged to Meyers and the garage manager never saw anyone drive the car other than Meyers and his wife. Calvin Mettee, who was a corporal in the army, testified he was assigned to the appellant as a chauffeur in the spring of 1942. He told of the new blue 1942 Cadillac being in the hotel garage and that it was his duty [ 171 F.2d 809 ] to see that the car was clean, brushed out and ready to go at all times. During the year 1942 it was never out of the garage for longer than a week. It bore District of Columbia license tags during 1942, 1943 and 1944. When Meyers married again in 1943, the witness was instructed to explain to Mrs. Meyers how to drive the blue Cadillac. Mrs. Meyers personally used the car in 1943 and at times the witness would drive her on shopping tours or to social functions. It was stored in the hotel garage thoughout the year 1943 and until the summer of 1944 when Meyers was transferred to Wright Field. Mettee was transferred there also. At Meyers' direction he flew in an army airplane from Dayton to Washington in order to drive the blue Cadillac to Dayton where he delivered it to Meyers' quarters. At appellant's order, he arranged for the transfer of the title of the automobile from Curnutt to Meyers or his wife. The car was constantly in appellant's possession while at Wright Field. When Meyers retired from active service in 1945, he directed Mettee to drive the 1942 Cadillac from Dayton to his residence at Bayville, Long Island, which was done. In the latter part of October, 1947, after Mettee had been released from the army, he went from his home in Rochester, Pennsylvania, to Huntington, New York, to see Meyers, at the latter's request. At Meyers' suggestion he registered at the hotel under an assumed name. Meyers told him that he was being investigated and that Lamarre was trying to blackmail him. He asked Mettee to testify, if he were questioned, that he had obtained from Lamarre authority to drive the blue Cadillac on the occasions when he did drive it, and to say that during the winter of 1942 and 1943 Lamarre drove the car from Dayton to Washington but due to heavy weather he could not return and was forced to leave the car in Washington, and that the witness did not know how the car was taken to Dayton. Meyers told him that if his testimony concerning the automobile turned out to be of any value he would give him $2,000. Proof of subornation was furnished when, with respect to a conversation between Meyers and Lamarre in a hotel lobby on October 3, 1947, Lamarre was asked, "Was there any discussion about a Cadillac automobile?", to which he answered: "I was to say that the Cadillac automobile was purchased for the company by Meyers on my instructions

and that I had gone to Washington a few weeks after the car was delivered and I had driven it back to Dayton, and that on several occasions I had driven the car to Washington, but because of bad weather I had gone back on the train and it remained here in Washington for some time and then later on when I came in again I would pick the car up and drive it home." He was then asked, "Was that the truth?", to which he replied, "No, it was not." Our conclusion is that the second count was sustained. Lamarre testified to the subcommittee in the manner charged; his testimony was admitted by him, and otherwise proved, to be false; and evidence was introduced that Meyers suborned the perjury. 3. As to furnishing and decorating the apartment. On this subject the pertinent portion of the indictment is as follows: "* * * In the course of his [Lamarre's] testimony on these dates it became material whether the cost of redecorating the apartment of Bennett E. Meyers at 2400 Sixteenth Street, N. W., Washington, D. C., in the year 1941, in the approximate amount of $10,000 had been paid for out of the funds of the Aviation Electric Corporation of Dayton and Vandalia, Ohio. Knowing the facts to be that it had, Bleriot H. Lamarre wilfully and contrary to his oath falsely testified before the subcommittee on the dates and at the place aforesaid that the aforesaid redecoration and cost of redecoration of the said apartment of Bennett E. Meyers was a gift from himself, Bleriot H. Lamarre." During his appearance before the subcommittee on the morning of Saturday, October 4, 1947, Lamarre said he had never made Meyers a present of a value of more than $100 and that all gifts from him and his wife, such as those made at Christmas, amounted to no more than $400. After lunching with Meyers and one of the latter's attorneys, he volunteered at the beginning [ 171 F.2d 810 ] of the afternoon session this statement: "There is one thing I would like to say before we proceed. That is, you laid a great deal of stress this morning on what you called gifts to General Meyers. I would like to amplify my statements on that, because at the time I did not consider it a gift, but it was after General Meyers had come to Washington, he had an apartment decorated, and I paid for the decoration of that apartment, and the furnishings."9 He said to the subcommittee that the cost of furnishing the apartment was paid by Aviation Electric checks, which was true; but he sought to transform the transaction from a company expenditure into a personal gift from him by belatedly charging it to his own salary account, after originally charging it to expense. It was indeed true, therefore, as he told the senators, that the checks, although drawn by the company, were charged against his personal salary. At the trial of Meyers, Lamarre admitted the expenditure was by the company and not by him. His confession was corroborated because the essential falsity of his testimony before the subcommittee is shown in this:

although bookkeeping entries were made to charge $10,000 to his salary account, that account itself was false, and fraudulently set up. His actual and comparatively meagre salary could not cover the decorating cost. [ 171 F.2d 811 ] There was no real difference in result to the company between the device of setting up a fictitious salary and remitting most of it to Meyers in cashiers' checks, and the device of charging to a fictitious salary account company checks drawn for Meyers' personal benefit. The latter was simply another method of secretly channeling Aviation Electric's money to Meyers. The company's books and cancelled checks furnish corroboration of Lamarre's testimony that he had sworn falsely with respect to furnishing the apartment. Moreover, Miss Davis, the decorator, told the jury she dealt with Meyers only, although Lamarre told the subcommittee he informed her of his desire to present the appellant with the cost of the decoration. Miss Davis said Meyers told her "that he would give me checks on a little company that he owned or had an interest in I don't remember just the words, but they satisfied me enough so that I was willing to take the check." She added that he gave her the name of the company as "the Aviation Electric Corporation of Dayton or Vandalia." Appellant asserts Lamarre's characterization of the payment as a gift was made under the prodding of the subcommittee; a partially true but wholly immaterial assertion.10 He originally and voluntarily described the transaction so that in law and in the fair meaning of language it amounted to a gift even though he disliked the word. Lamarre was reluctant to use the word "gift" only because he thought of a gift "as some item you give a man," and his position before the subcommittee was that the $10,000 was a payment of a moral obligation, a return due because of Meyers' favors to him. Moreover, as has been pointed out, Lamarre entered a plea of guilty with respect to this charge. As he had done with respect to the first two counts, Lamarre testified that he committed this perjury at Meyers' suggestion and solicitation. From what has been said, we find the third count to have been established. Lamarre gave before the subcommittee the testimony charged as perjury; its falsity was proved by him and by corroborative evidence; and there was proof that Meyers suborned it. In addition to his reasons for reversal which have been discussed and disposed of in the foregoing portion of this opinion, appellant argues his conviction should be set aside because the subcommittee before which Lamarre gave his perjured testimony was not lawfully constituted as such, and therefore was not "a competent tribunal" spoken of by the perjury statute. He discerns a variance between the indictment's allegation that the Senate committee "on April 19, 1947, created a subcommittee" and the proof from the committee chairman and counsel that a subcommittee was created in mid-April by the chairman, who announced to the full committee the names of the senators whom he had appointed as members of it. Appellant says the subcommitte was invalid because it was not created by

a resolution of the full committee. The argument lacks substance because the evidence shows it is the unvarying practice of the Senate to follow the method of creating and appointing sub-committees which was employed in this instance. After consideration of all appellant's points with respect to the subcommittee sitting on October 4, we conclude that it was legally constituted. The argument that a quorum was not present on October 4, 1947, because only one of the three senators then present had been among the five originally appointed in April, obviously confuses the creation of the subcommittee with the appointment of its personnel. On October 6, 1947, however, only two senators were present at the hearing. Since they were a minority of the subcommittee, they could not legally function except to adjourn. For that reason, the testimony of Lamarre given on that day cannot be considered as perjury nor can appellant be convicted of suborning it. [ 171 F.2d 812 ] But practically all Lamarre's testimony was given on October 4, when a quorum was present. The proceedings of that day contain the perjurious statements described in all three counts, and his examination on October 6 was largely repetitious. A further ground for reversal is the court's alleged error in denying appellant's motion before trial to dismiss the indictment. It is asserted that the section of the District of Columbia Code, under which the indictment was laid, "has nothing whatever to do with any perjury or subornation of perjury committed in connection with an inquiry by a committee of the House of Representatives or Senate of the United States." In other words, appellant says only the federal perjury statute, 18 U.S.C.A. 231, 232 [1948 Criminal Code, 18 U.S.C.A. 1621, 1622], was applicable. To accept the argument would be to overrule our decisions in O'Brien v. United States, 1938, 69 App.D.C. 135, 99 F.2d 368, and Behrle v. United States, 1938, 69 App. D.C. 304, 100 F.2d 714, which we are not prepared to do. Appellant's assignment of error concerning the court's conduct, his criticism of the court's charge to the jury, and his complaint concerning government counsel's argument to the jury, do not impress us as requiring discussion; but we deem it proper to refer, as briefly as possible, to the proposition advanced in the first division of the dissenting opinion which is filed herewith. At the opening of the dissent it is said, "The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error." The reference is to the fact the William P. Rogers, chief counsel to the senatorial committee, who had examined Lamarre before the subcommittee and consequently had heard all the testimony given by him before that body, was permitted to testify as to what Lamarre had sworn to the subcommittee. Later in the trial the government introduced in evidence a stenographic transcript of Lamarre's testimony at the senatorial hearing.

In his brief here the appellant characterizes this as a "bizarre procedure" but does not assign as error the reception of Rogers' testimony. The dissenting opinion, however, asserts it was reversible error to allow Rogers to testify at all as to what Lamarre had said to the subcommittee, on the theory that the transcript itself was the best evidence of Lamarre's testimony before the subcommittee. That theory is, in our view, based upon a misconception of the best evidence rule. As applied generally in federal courts, the rule is limited to cases where the contents of a writing are to be proved.11 Here there was no attempt to prove the contents of a writing; the issue was what Lamarre had said, not what the transcript contained. The transcript made from shorthand notes of his testimony was, to be sure, evidence of what he had said, but it was not the only admissible evidence concerning it. Rogers' testimony was equally competent, and was admissible whether given before or after the transcript was received in evidence. Statements alleged to be perjurious may be proved by any person who heard them, as well as by a reporter who recorded them in shorthand. A somewhat similar situation was presented in Herzig v. Swift & Co., 146 F.2d 444, decided by the United States Court of Appeals for the Second Circuit in 1945. In that case the trial court had excluded oral testimony concerning the earnings of a partnership on the ground that the books of account were the best evidence. After pointing out the real nature and scope of the best evidence rule,12 the court said, 146 F. [ 171 F.2d 813 ] 2d at page 446: "* * * Here there was no attempt to prove the contents of a writing; the issue was the earnings of a partnership, which for convenience were recorded in books of account after the relevant facts occurred. Generally, this differentiation has been adopted by the courts. On the precise question of admitting oral testimony to prove matters that are contained in books of account, the courts have divided, some holding the oral testimony admissible, others excluding it. The federal courts have generally adopted the rationale limiting the `best evidence rule' to cases where the contents of the writing are to be proved. We hold, therefore, that the district judge erred in excluding the oral testimony as to the earnings of the partnership." A contention identical with that made in the dissenting opinion here was rejected by the United States Court of Appeals for the Second Circuit in 1912 in Brzezinski v. United States, 198 F. 65, 66. In that opinion the court said: "The first fact for the government to prove was the giving of the testimony charged in the indictment. It called the stenographer who took the notes of the proceedings before the grand jury. He testified that he took down the questions and answers that were put to Brzezinski on that day; that he made a transcription in typewriting from the notes, made this transcription himself, did not dictate it. * * * An assistant United States attorney who was present in the grand jury room also testified to the substance of what Brzezinski said on that occasion. It is contended that the court erred in admitting this testimony on the ground that it was `not the

best evidence.' This is a frivolous objection. Any one who has heard an oral statement made and remembers it may testify to what was said. * * *" The Court of Appeals for the Third Circuit held, in Re Ko-Ed Tavern, 1942, 129 F.2d 806, 810, the best evidence rule does not have the application which the dissent here seeks to give it: "As to Light's half ownership of the bankrupt corporation, William Kochansky, president of the company, testified at the hearing before the referee that he and Light each owned fifty per cent of the capital stock of the corporation but that no stock certificates had ever been issued to either of them. The appellant objected to this testimony on the ground that the books of the bankrupt corporation were the best evidence of the matter under inquiry and that the parol evidence offered was inadmissible because the nonproduction of the books had not been satisfactorily explained. It is quite apparent that the appellant misconceives the scope of the `best evidence' rule. That rule is applicable when the purpose of proffered evidence is to establish the terms of a writing. See 4 Wigmore on Evidence, 3rd Ed., 1178. In this case there was no attempt to prove by parol either book entries or the terms of written instruments. * * *" To the same effect is Boitano v. United States, 1925, 7 F.2d 324, 325, in which the Ninth Circuit said: "* * * it was equally competent to prove that testimony [of the plaintiff in error] by a witness who was present at the trial and heard the testimony given, regardless of whether the testimony was reported or whether it was not. 22 C.J. 344." As we have pointed out, there was no issue as to the contents of the transcript, and the government was not attempting to prove what it contained; the issue was what Lamarre actually had said. Rogers was not asked what the transcript contained but what Lamarre's testimony had been. After remarking, "* * * there is a line of cases which holds that a stenographic transcript is not the best evidence of what was said. There is also a legal cliche that the best evidence rule applies only to documentary evidence", the dissenting opinion asserts that the rule is outmoded and that "the courts ought to establish a new and correct rule." We regard the principle set forth in the cases which we have cited as being, not a legal cliche, but an established and sound doctrine which we are not prepared to renounce. With the best evidence rule shown to be inapplicable, it is clearly seen that it was neither "preposterously unfair", as the appellant asserts, nor unfair at all, to permit the transcript of Lamarre's evidence to be introduced after Rogers had testified. [ 171 F.2d 814 ] Since both methods of proving the perjury were permissible, the prosecution could present its proof in any order it chose. There is no substance in the criticism, voiced by the appellant and in the dissent, of the fact that Rogers testified early in the unduly protracted trial and the transcript was introduced near its close. Appellant's counsel had a copy of the transcript from the second day of the trial, and had full

opportunity to study it and to cross-examine Rogers in the light of that study. The mistaken notion that, had the transcript been first put in evidence, Rogers' testimony would have been incompetent is, of course, based on the erroneous idea that the best evidence rule had application. It is quite clear that Meyers was in no way prejudiced by the order in which the evidence against him was introduced, nor does it appear that his position before the jury would have been more favorable had the transcript been offered on an earlier day of the trial. The matters discussed in the second division of the dissenting opinion have been covered adequately, we think, in the earlier portion of this opinion. Since we perceive no prejudicial error in appellant's trial, the judgment entered pursuant to the jury's verdict will not be disturbed. Affirmed. PRETTYMAN, Circuit judge (dissenting). I am of strong opinion that the judgment in this case should be reversed. I think so for two reasons. I. The testimony given by Lamarre before the Senate Committee was presented to the jury upon the trial in so unfair and prejudicial a fashion as to constitute reversible error. Lamarre testified before the Committee in executive session, only Senators, Mr. William P. Rogers, who was counsel to the Committee, the clerk, the reporter, and the witness being present. An official stenographic record was made of the proceedings. The testimony continued for two days, and the transcript is 315 typewritten pages. When Meyers was indicted, he moved for a copy of the transcript. The United States Attorney opposed, on the ground that the executive proceedings of a Senate Committee are confidential. The court denied Meyers' motion. When the trial began, the principal witness called by the Government was Mr. Rogers. He was asked by the United States Attorney, "Now, will you tell the Court and the jury in substance what the testimony was that the defendant Lamarre gave before the Committee concerning the Cadillac automobile?" Two counts of the indictment related to this automobile. The court at once called counsel to the bench and said to the prosecutor: "Of course, technically, you have the right to proceed the way you are doing. * * * I do not think that is hearsay under the hearsay rule, but it seems to me * * * that, after all, when you have a prosecution based on perjury, and you have a transcript of particular testimony on which the indictment is based, that you ought to lay a foundation for it or ought to put the transcript in evidence, instead of proving what the testimony was by someone who happens to be present, who has to depend on his memory as to what was said." Counsel for the defense, objecting, insisted that the procedure was "preposterously unfair". The trial judge said that it seemed to him that the transcript ought to be made available to defense counsel. That was then done, but the prosecutor insisted upon proceeding as he had planned with the witness. Mr. Rogers then testified: "I will try to give the substance of the testimony. * * * I am sure your Honor appreciates that I do not remember

exactly the substance of the testimony. The substance of testimony was this, * * *." And then he gave "in substance" the testimony in respect to the Cadillac car. The same process was followed in respect to the matters covered by the other counts of the indictment, i. e., the redecoration of Meyers' apartment and Meyers' interest in the Aviation Electric Corporation. Defense counsel reserved part of his cross-examination until he could read the transcript. [ 171 F.2d 815 ] The notable characteristics of this testimony of Rogers are important. In each instance, the "substance" was a short summation, about half a printed page in length. The witness did not purport to be absolute in his reproduction but merely recited his unrefreshed recollection, and his recollection on each of the three matters bears a striking resemblance to the succinct summations of the indictment. It is obvious that what the witness gave as "substance" was an essence of his own distillation and not an attempt to reproduce the whole of Lamarre's testimony. There are differences between Rogers' recollection and the transcript which are vital in the case. The foregoing was on Wednesday, February 25th, the second day of the trial. On Tuesday, March 9th, which was two weeks later and the eleventh day of the trial, the Government, as it was about to close its case, offered the whole transcript of Lamarre's testimony in evidence as an exhibit, and it was received without objection. The prosecutor and one of his assistants then read to the jury such portions of the transcript as they deemed material. Defense counsel then read the portions which they deemed material. Upon the reserved cross-examination of Rogers, the following occurred: "Q. Is it not a fact that nowhere in his testimony did the defendant Lamarre on October 4th or 6th, 1947, testify that Bennett E. Meyers was not financially interested in or connected with the Aviation Electric Corporation? A. I don't think he ever used those words. "Q. Is it not a fact that all of his testimony, taken as a whole, negatives such an interpretation? "Mr. Fay: I think that is purely a question of law. "The Court: Objection sustained, I do not think that is proper crossexamination." Defense counsel inquired of Rogers if it were not a fact that "the substance of Lamarre's testimony with reference to the Cadillac car" was so-and-so. The court interrupted and said that counsel was asking the witness "to construe" Lamarre's testimony and that since the jury had heard the testimony read it would have to determine what its meaning was. Counsel for the defense agreed with that proposition and moved to strike all of Rogers' direct testimony as to what Lamarre's testimony had been. The court denied the motion, saying that Rogers had not, on direct, been "interpreting" Lamarre but had stated "the substance", which the court said "is an entirely different thing". Rogers then answered as to his

"recollection", commenting, "I stated at the outset it is just my recollection." He repeated that comment in effect several times. Finally counsel asked a specific question as to Lamarre's use of the word "gift" (which we note was the key word in Count Five), and the prosecutor objected on the ground that "the record [i. e., the transcript] speaks for itself". The court sustained the objection. A similar question was then asked, objected to, and the objection sustained. Thereupon counsel dropped that line of examination. To my mind, the foregoing procedure was, as defense counsel characterized it, "preposterously unfair". It lacked the minimum elements of fair play essential to our concept of a fair trial. I reach my conclusion upon both practical and theoretical considerations. The problem has both aspects. The practical elements are these: The transcript showed exactly what Lamarre told the Committee, word for word. But the words and expressions charged to him by the indictment do not appear in the transcript. Whether he testified as alleged, whether he said what is alleged to be the truth, or whether he said what is alleged to be false, were matters of inference, or conclusion, or summation, or "substance", to be gathered from his answers to many questions. Mr. Rogers was the counsel who interrogated Lamarre before the Committee. The Committee was the actual complainant in the perjury charge. Rogers was its representative. Thus, the sum of the practical aspect of the matter is that the prosecutor put to the jury at the opening of his case, out of the mouth of the complainant, under oath and on the stand, the complainant's interpretation of the alleged perjured testimony, translating it into approximately what the indictment attributed to the alleged perjurer. [ 171 F.2d 816 ] I need not elaborate the tremendous advantage thus gained by the Government, an advantage later magnified by what occurred on attempted cross-examination. The difference between the presentation of elemental facts and the piecing of them together so as to reach a conclusion is basic.1 One is evidence and the other argument. The principle runs through much of the law of evidence. I doubt that anyone would say that the prosecutor could first have put into evidence the transcript of Lamarre's testimony and thereafter have produced Rogers to give to the jury from the witness box his own summation of it. He would have been met with a ruling that "the transcript speaks for itself". Indeed, exactly that developed. The prosecutor first produced the oral summation, and it was admitted. Then he produced the transcript. Then, when defense counsel attempted to cross-examine as to "the substance", he was blocked because of the presence of the transcript. Can a prosecutor do by so simple and obvious a maneuver that which the law otherwise forbids as unfair? Can he thus transform into sworn evidence from the box that which is otherwise only argument from the rail? I do not think so. In the presence of the unimpeached transcript, even though it was

temporarily on counsel table and not yet in the clerk's hands, summation and interpretation was argument and not evidence. Nor was the prejudice cured by the availability of the transcript to defense counsel for cross-examination. If that were so in this case, the same doctrine would admit in evidence any opinion, or description, or summation of elemental facts otherwise provable in precise accuracy. The impression given by a succinct summation by a live witness on the stand cannot be corrected or offset by the later reading of a long, cold record. It is my view that for this exceedingly practical reason the reception of Rogers' summation in evidence was not permissible. From the theoretical viewpoint, I realize that there is a line of authority that (absent or incompetent the original witness) a bystander who hears testimony or other conversation may testify as to what was said, even though there be a stenographic report.2 And there is a line of cases which holds that a stenographic transcript is not the best evidence of what was said.3 There is also a legal cliche that the best evidence rule applies only to documentary evidence.4 The trial judge in this case was confronted with that authority, and a trial court is probably not the place to inaugurate a new line of authority. But I do not know why an appellate court should perpetuate a rule clearly outmoded by scientific development. I know that courts are reluctant to do so.5 I recognize the view that such matters should be left to Congress. But rules of evidence were originally judge-made and are an essential part of the judicial function. I know of no reason why the judicial branch of Government should abdicate to the legislative branch so important a part of its responsibility. I am of opinion, and quite ready to hold, that the rules of evidence reflected by the cases to which I have just referred are outmoded and at variance with known fact, and that the courts ought to establish a new and correct rule. The rationale of the so-called "best evidence rule" requires that a party having available evidence which is relatively certain may not submit evidence which is far less certain. The law is concerned with the true fact, and with that alone; its procedures are directed to that [ 171 F.2d 817 ] objective, and to that alone. It should permit no procedure the sole use of which is to obscure and confuse that which is otherwise plain and certain. We need not venture into full discussion of all the principles involved.6 As between two observers of an event, the law will not accept the evidence of one and exclude that of the other, because the law cannot say which is more accurate. But as between a document itself and a description of it, the law accepts the former and excludes the latter, because the former is certain and the latter is subject to many frailties. So as between the recollection of the parties to a contract evidenced by a writing and the writing itself, the law rejects the former and accepts the latter. To be sure, the writing may be attacked for forgery, alteration or some such circumstance. But absent such impeachment, the writing is immutable evidence from the date of the event, whereas human recollection is subject to many infirmities and human recitation is subject to the vices of prejudice

and interest. Presented with that choice, the law accepts the certain and rejects the uncertain. The repeated statement in cases and elsewhere that the best evidence rule applies only to documents is a description of practice and not a pronouncement of principle. The principle is that as between human recollections the law makes no conclusive choice; it makes a conclusive choice only as between evidence which is certain and that which is uncertain. It may be remarked at this point that the transcript in the case at bar is a document, not challenged for inaccuracy or alteration. It possesses every characteristic which the most literal devotee of established rules of evidence could ascribe to written evidence of a contract as justification for preference of such writing over the recollection of the parties. In my view, the court iterates an error when it says that the best evidence rule is limited to cases where the contents of a writing are to be proved. The purpose of offering in evidence a "written contract" is not to prove the contents of the writing. The writing is not the contract; it is merely evidence of the contract. The contract itself is the agreement between the parties. Statutes such as the statute of frauds do not provide that a contract be in writing; they provide that the contract be evidenced by a writing, or that a written memorandum of it be made. The writing is offered as evidence of an agreement, not for the purpose of proving its own contents. A deed to real estate is different, being actually the instrument of conveyance, although there is authority that it too is merely evidence of the agreement between the parties. The doctrine that stenographic notes are not the best evidence of testimony was established when stenography was not an accurate science. The basis for the decisions is succinctly stated in the 1892 case quoted as leading by Professor Wigmore: "Stenographers are no more infallible than any other human beings, and while as a rule they may be accurate, intelligent, and honest, they are not always so; and therefore it will not do to lay down as a rule that the stenographer's notes when translated by him are the best evidence of what a witness has said, in such a sense as to exclude the testimony of an intelligent bystander who has heard and paid particular attention to the testimony of the witness."7 But we have before us no such situation. Stenographic reporting has become highly developed, and official stenographic reports are relied upon in many of the most important affairs of life. Even as early as 1909, a court referred to "Experience having demonstrated the impartiality and almost absolute accuracy of the notes of court stenographers" as the reason for legislation making admissible as evidence a court stenographer's report.8 In the present instance, at least, no one has disputed the correctness of the transcript. From the theoretical point of view, the case poses this question: Given both (1) an accurate stenographic transcription of a [ 171 F.2d 818 ] witness' testimony during a two-day hearing and (2) the recollection of one of the complainants as to the substance of that testimony, is the latter

admissible as evidence in a trial of the witness for perjury? I think not. To say that it is, is to apply a meaningless formula and ignore crystal-clear actualities. The transcript is, as a matter of simple, indisputable fact, the best evidence. The principle and not the rote of the law ought to be applied. I do not suggest that a stenographer's report is unimpeachable; that question is not here. I find some support for my view in the authorities. As early as 1878 the Supreme Court, in ruling upon the problem, seemed to qualify the traditional view. It said that "Where a stenographer has not been employed, it can rarely happen that anyone can testify to more than the substance of what was testified * * *." (Italics supplied.)9 And Volume 2, Section 693, of Wharton's Criminal Evidence, after discussing the cases, has this to say: "However, since it is a primary rule of evidence that the best evidence must be produced, it would seem that since practically all testimony is now taken by stenographers, a transcript of the stenographer's notes would be the best evidence, and that oral evidence would not be admissible when such transcript could be obtained." And there is authority to the effect that even where a witness is permitted to give the substance of prior testimony of another, he must reproduce as accurately as he can the whole of that testimony and cannot give merely his own summation.10 II. The proof did not establish that Lamarre told the Senate Committee what the indictment, in the first count, says he did, and it established that he told the Committee what the third and fifth counts say is the truth. What Lamarre told the Committee was, of course, the first factual question in the prosecution, and thus in the defense, of Meyers. The indictment charged that Lamarre made three specific false statements to the Senate Committee. I take it as elementary that an indictment must allege the commission of an act and not mere rascality; that the offensive act must be alleged with precision, clarity and certainty; that upon the trial the Government must prove the commission of the act alleged, and that no other misdeed, however proved, will support conviction; and that an accused need defend against no proof except that of the act alleged. The issue now before us cannot be resolved correctly, or indeed even understood, unless we first note with attentive care exactly what this indictment says Lamarre told the Senate Committee. The first count of the indictment charged that Lamarre testified falsely that "Meyers was not financially interested in or connected with the Aviation Electric Corporation of Dayton and Vandalia, Ohio, during those years [i. e., 1940, 1941, 1942, 1943, 1944, 1945, 1946 or 1947] or any of them". That is a very specific, precise charge. Also it is quite clear and easily understood. It relates to financial interest or connection of any sort on the part of Meyers in or with the corporation. It relates to any one of the years 1940-47. Conviction required the Government to prove the allegation as made. Conversely, Meyers was called upon to defend against the allegation made, and none other. First, we note that Lamarre never made the direct assertion in the language the indictment recites. No one claims that he did. As we have

already noted, Mr. Rogers testified, "I don't think he ever used those words." And when asked, in reference to finances, "So that Lamarre did not say, in summary, as you understood it, that Meyers had no connection with the company?" Mr. Rogers replied, "I never said he said that." Second, we note that Lamarre repeatedly testified to the precise contrary of what the indictment charged he said. Financial interest in or connection with a corporation is of two principal sorts, owner and creditor. Lamarre testified that Meyers had both. He told the Committee that Meyers put up all the money for the stock upon the incorporation. He identified the original book [ 171 F.2d 819 ] entry which showed Meyers as the sole original stockholder. He said that the named incorporators were "dummies". He said that when the stock was transferred on the records to him (Lamarre), he endorsed it in blank and left it at the company office where Meyers had access to it. He also testified that Meyers put up any money which the corporation needed and that Meyers was the sole creditor of the corporation. He even testified flatly, as follows: Q. "That [the stock transfer to Lamarre] was just a bookkeeping transaction, and you held the stock and then you endorsed them over to Meyers and he took the certificates, is that correct? "Mr. Lamarre: Yes. "[Q.] So you understood all of the time that for all practical purposes he owned the business, did you not? "Mr. Lamarre: That is right. "[Q.] He put all of the money in and he owned all of the stock? "Mr. Lamarre: That is right." And again the record shows: Q. "In other words, without any payment on your part, and he [Meyers] made the arrangement that you were to endorse them in blank and he would take possession of them, is that correct? "Mr. Lamarre: Yes." And again Lamarre testified: "Of course, as I said, the company actually had no money; it was borrowed from General Meyers." He testified that at the end of 1941 the corporation owed Meyers $30,000, and he identified a list which showed that Meyers advanced $58,310 to the corporation, of which amount $20,000 was advanced in 1942. The very first questions by defense counsel upon the crossexamination of the witness Rogers at the trial developed the nub of the matter: "Q. Mr. Rogers, did I understand you to say that Lamarre testified that he or General Meyers, for all practical purposes, owned the stock, owned the company: Aviation Electric? A. Well, he said both ways. He said he was the owner of the stock

"Q. Yes? A. but he said, when we pressed him with questions, in view of the fact that Meyers had put up all the money and had given the stock in the company, for all practical purposes Meyers was the owner. "Q. So that actually, as the testimony was left, he didn't deny that Meyers was, in that sense at least, interested in the company? A. No. "Q. And in that sense at least financially interested in the company? A. That is right. "Q. And he did not deny or state falsely in that sense that Meyers was connected with the company? A. No." It is impractical to quote in this opinion the whole of the testimony upon the point. But to my mind the record of what Lamarre told the Senate Committee conclusively shows that he made perfectly clear to the Committee, by repeated and unequivocal statements, that Meyers was the originator and first sole stockholder of the corporation; that when the stock was transferred on the record to him (Lamarre), he was merely a record holder, having paid nothing for the stock and having endorsed the certificate in blank and left it physically available to Meyers; that Meyers was the sole financial backer of the company, and that during the years 1940-42 Meyers was a creditor of the corporation in large amounts, his loans evidenced by notes and secured by pledge of all the stock. Throughout his testimony there was no intimation that the corporation had any financial support of any sort except that of Meyers. Lamarre made many statements and representations which the record may indicate were false and which he later repudiated. But he did not, as best I can read the record, even suggest that Meyers had no financial interest in or connection with the corporation in any of the years 1940-47. And that is what the indictment says he told the Committee, and that is what the Government had to prove in order to sustain conviction. I do not agree with the court that appellant's contention in this connection is based upon one question and answer. As I understand it, the contention is based upon the [ 171 F.2d 820 ] whole of Lamarre's testimony before the Committee, upon many questions and answers. Certainly my conclusion is. Neither do I agree with the court's view that if Meyers' interest in the corporation during any of the years named be established, the conviction must be sustained. Lamarre is alleged by the indictment to have told the Committee that Meyers had no interest in the corporation during the years 1940, 1941, 1942, 1943, 1944, 1945, 1946, 1947, or any of them. The Government had to prove that Lamarre made that statement. If Lamarre told the Committee that Meyers had an interest during three of the eight years named, he did not say what the indictment says he said. Upon such proof, conviction under the indictment as drawn could not stand. We cannot rewrite the indictment so as to allege that Lamarre said something else. It is perfectly true that if Lamarre made the statement ascribed to him by the indictment, and if it were proved that Meyers had an interest in any one of those years, Lamarre's perjury would be established. Therein lies the

confusion. It seems to me that the court is thinking about the proof necessary to establish the falsity of the statement recited in the indictment, whereas the question under consideration at this point is the proof necessary to establish that Lamarre made the alleged statement. This particular question is not "Was the alleged statement false?" The question is "Did Lamarre make the alleged statement?" It seems plain to me that if, as the court finds, Lamarre asserted and never denied Meyers' interest in some of the years 1940-47, he did not state that Meyers had no interest in any of those years. The Government has simply failed to prove one of the essentials of its case under the indictment as drawn. In the third place, in respect to this count, everybody agrees that Lamarre made it clear to the Committee that Meyers was a creditor of the corporation in large amounts during the years 1940, 1941 and 1942; that, in fact, he supplied all the money the corporation needed when it was in need. Upon the trial below, the insistence of the witness Rogers was that Lamarre told the Committee that Meyers was not financially interested "except as a creditor". The same exception runs through every claim in the Government's brief before us. The opinion of the court recites that "Meyers advanced considerable sums for working capital and took therefor the company's promissory notes which were secured by the pledge and delivery to him of the certificates evidencing all its capital stock" and that "by the end of 1942 all Meyers' loans had been repaid." The court finds and recites that Lamarre insisted that the stock "did not belong to Meyers all the time but actually became his [Lamarre's] when the notes were paid." The notes were paid at the end of 1942. So the court's view of Lamarre's testimony is that Meyers owned the stock in 1940, 1941 and 1942. The court says that Lamarre tried to persuade the Committee that Meyers bore to the corporation "merely the relation of creditor"; and the court concludes from the evidence as a whole that Meyers had no interest "except that he was a creditor and held the capital stock as collateral". The unspoken major premise to the Government's contention and the court's position is that a creditor upon a promissory note of a corporation and pledgee of all its capital stock has no financial interest in or connection with the corporation. I cannot agree with that proposition. Of course, the term "interest in" has many meanings, some of them narrow and technical. But we are not construing a statute, and, moreover, the whole expression before us is "interested in or connected with". We are examining an allegation in an indictment which purports to recite what a witness said on the stand in a congressional hearing. The indictment recites that his testimony was that a certain person had no financial interest in or connection with a corporation. The witness actually said that the person was a substantial and secured creditor of the corporation. The witness may have been guilty of perjury, but he clearly was not guilty of the perjury charged by the indictment. The second charge against Meyers (Count Three of the indictment) related to a Cadillac automobile. The charge was premised upon allegations in the indictment that "The fact was, as Bleriot H. Lamarre then knew, that that automobile had been [ 171 F.2d 821

] purchased for the personal use of Bennett E. Meyers. Bleriot H. Lamarre nevertheless wilfully and contrary to his said oath testified falsely * * * that that Cadillac automobile had been purchased for the Aviation Electric Corporation and for the use of the Aviation Electric Corporation." Thus, the indictment recites, first, what the truth was and, second, what Lamarre told the Committee. Again we must note with care exactly what the indictment charged. The critical question posed by its allegations was: For whose use was the car purchased? According to the indictment, it was perjury to say that the purchase was "for the use" of the corporation because in truth it was "for the personal use" of Meyers. The testimony of Lamarre relating to the automobile is comparatively short. It came near the end of the second day of his testimony. He made no direct statement to the Committee as to whose use the car was purchased for. His meaning in that respect is a matter of inference. What he said was that the company had one car, a Cadillac, purchased from the Capitol Cadillac Company in Washington, where Meyers lived (the corporation was in Dayton and Vandalia, Ohio); that Meyers picked out the car, bought it and took delivery on it; that Meyers had access to it; that Meyers had the keys to it; that the car remained in Washington; that Meyers kept it in his garage; that the car was bought and titled in the company name; that he (Lamarre) was the only officer in the company who had access to the car; that Meyers made arrangements to get the insurance; that the car was insured in Washington; that the car cost $3,000 and was sold to Meyers' father-in-law for $1,400; that it was sold because "We had no further use for it"; that they "had not had too much use for it." None of these elemental facts has been disputed; as to them Lamarre testified truthfully before the Committee. The contention of the Government and the holding of the court is that this factual testimony is so positive to the effect that the car was purchased "for the use of the Aviation Electric Corporation" as to make it perjury, since the fact was that the purchase was "for the personal use" of Meyers. I have some difficulty in drawing a clear line between purchases of cars for the use of a corporation and purchases of cars by a corporation for the personal use of an officer, or sole stockholder, or sole creditor. Frequently, it seems to me, the use of the officer, stockholder or creditor is, in many senses, a use of the corporation. At any rate, it is frequently so considered in business circles. Be that as it may, I cannot find in Lamarre's testimony a distinction between company use and Meyers' personal use so clear and sharp as to constitute one a perjury when the other is the fact. Lamarre certainly told the Committee that Meyers selected the car, arranged for its purchase, bought it in Washington, kept it in his garage in Washington (the company being located in Ohio), had the keys, and arranged for the insurance. To my mind, it is a logical and fairly obvious conclusion from that testimony that the car was purchased for Meyers' use. It seems to me that what the indictment recites as the truth is as fair an inference as any other from Lamarre's actual testimony.

The Government and the court put much stress upon Lamarre's reference to the car as the "Company car" and to his having driven it once from Ohio to Washington. But those scraps of testimony are not, to my mind, an affirmation that the car was purchased for the use of the company and not of Meyers. I can find in Lamarre's testimony no clear inference that the car was purchased for the use of the corporation in critical contradistinction to a purchase for the use of Meyers. Unless his testimony was clear in that difference, conviction upon this indictment, as drawn, cannot be sustained. One is perjury, the other truth, the indictment says. Unless he said one and not the other, prosecution for this perjury fails. The problem posed by this phase of the case is not that presented when a witness swears both truthfully and falsely in the same testimony. That witness may be guilty of perjury in that part of his testimony which is false, even though on other matters he testifies truthfully, and even though he recants that which is false. In the case at bar, Lamarre testified to a number of simple facts about the car, all of [ 171 F.2d 822 ] which facts are admittedly true. The question is: Did he thereby convey a false impression? If what he actually said fits what the indictment says was the truth of the transaction, he is not guilty of perjury. In other words, in my view, if either of two impressions, one true and the other false, can be gathered from a true recitation of elemental facts, conviction for perjury fails. The third count of the indictment charged that Lamarre, knowing that "the cost of redecorating the apartment of Bennett E. Meyers * * * had been paid for out of the funds of the Aviation Electric Corporation", testified falsely before the Senate Committee that the cost of the redecoration "was a gift from himself, Bleriot H. Lamarre." Again we must note with care what the indictment says. It makes the difference between "paid for out of the funds of" the corporation and "a gift from himself" the difference between truth and perjury. I have some doubt as to the validity of the count because of its vagueness; the payment might be correctly described by both the expressions used. But my dissent does not arise from that view. Lamarre clearly, emphatically and in complete detail testified before the Committee that the cost of redecorating Meyers' apartment was paid for out of the funds of the corporation. No one disputes that literal fact. He said that the bills were paid by corporation checks, drawn on corporation bank accounts, and first charged as sales expenses on the corporate books. He identified the corporate checks. In all these respects he testified to what was the literal, actual truth, and no one has since alleged otherwise. So far there is, and can be, no dispute but that he testified to what the indictment says was the truth. The difficulty arises because it is alleged that Lamarre falsely characterized the transaction as a gift from himself to Meyers.

Lamarre told the Committee that the cost of redecorating Meyers' apartment ($10,000), having first been charged on the corporate books as a business expense, was later removed from that account and entered as a charge against his own salary account. His statements in these respects were true; that was exactly what was done. The real issue of truth or falsity revolves about the salary account itself. The Government says that the account was spurious, that Meyers was the owner of the corporation, that Lamarre never had any such salary, and that the account was merely a device for siphoning profits to Meyers. But the indictment does not raise that issue. We cannot rewrite the indictment to charge that whereas the truth was that Meyers owned the corporation and all its profits, including what was charged as Lamarre's salary, Lamarre falsely represented that the salary credited to him was his own and that charges against it were gifts by him. Much is made of the word "gift". The facts as shown by the record are quite simple. When Lamarre appeared before the Committee, he was interrogated at length throughout the morning concerning his and the corporation's relationship with Meyers, during the course of which much discussion was had of "gifts" from Lamarre to Meyers and from Meyers to Lamarre. The decorating of the apartment was not mentioned. After the luncheon recess, Lamarre said: "There is one thing I would like to say before we proceed. That is, you laid a great deal of stress this morning on what you called gifts to General Meyers. I would like to amplify my statements on that, because at the time I did not consider it a gift, but it was after General Meyers had come to Washington, he had an apartment decorated, and I paid for the decoration of that apartment, and the furnishings." Throughout that afternoon and the next morning, Lamarre was questioned at great length and in great detail concerning this transaction. He identified the checks and explained at great length the book entries, and repeatedly reasserted his claim that he caused this payment because of what Meyers had done for him. Until almost the close of this interrogation, the expression "gift" was not used. Then the following occurred: "Mr. Rogers: What do you consider this $10,000 now, and I am not talking about Saturday morning or Saturday afternoon; I am speaking now about now; what do you consider this $10,000 was? [ 171 F.2d 823 ] "Mr. Lamarre: As I said, it was pretty much, I considered it a moral obligation on my part to do something for General Meyers because of the things he had done for me. "Mr. Rogers: Look, you are a college graduate and president of the corporation. You understand what I mean. Was this $10,000 a repayment for a loan to General Meyers? "Mr. Lamarre: No, it was not. "Mr. Rogers: Was it part of any business deal at all? "Mr. Lamarre: No. "Mr. Rogers: And it had no consideration. "Mr. Lamarre: No.

"Mr. Rogers: No legal consideration, so it must have been a gift, is that right? "Mr. Lamarre: It could have been considered a gift. "Mr. Rogers: I do not know what it could be; what was it? "Mr. Lamarre: I told you how I felt about it. "Senator Cain: Let me ask one question. What could it possibly be considered if it was not an outright gift for you said you wanted to do something for General Meyers. "Mr. Lamarre: That is right. In a legal sense, it undoubtedly would be a gift. "Senator Cain: In what other sense would it be anything other than a gift or a present or a gratuity to a friend? "Mr. Lamarre: In my own personal feelings about it, it was that it was, I was sort of obliged to do that for him, or I wanted to do it for him because of the things that he had done for me. "Senator Cain: But the transaction in itself has absolutely nothing to do with your corporation business? "Mr. Lamarre: That is correct. "Senator Cain: It happens to have been paid from the corporation? "Mr. Lamarre: That is correct. "Senator Cain: But that was never your thought or intention; it was your personal obligation by personal wish to a personal friend? "Mr. Lamarre: That is correct." Upon this record Lamarre's use of the expression "gift" plays little part in the question of perjury. Lamarre did not urge that expression upon the Committee. He testified to the constituent factual elements of the transaction. "Gift" was merely an inference, or characterization, which his interlocutors attempted, with limited success, to put into his mouth. It is my view that upon examination of the official stenographic transcript of what Lamarre said to the Senate Committee, the trial court should have directed a verdict of acquittal upon this indictment. The basic issue presented by the defense was whether Lamarre said what the indictment alleged that he said. The issue was not what Lamarre said generally or in other respects. In each of the three instances, the stenographic transcript showed that he told the Committee what the indictment alleged to be the true fact; not only by a separate chance phrase but by the whole purport of his testimony. That he perjured himself in other respects is irrelevant in this prosecution. I dissent from the decision of the court, because it seems to me to be a departure from the basic principle that conviction can be had only upon proof of the acts alleged in the indictment.

VELASCO, JR., J.: This is an appeal from the Decision dated July 19, 2007 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 00476 which affirmed the April 23, 2004 Decision in Criminal Case No. 00-181929 of the Regional Trial Court (RTC), Branch 53 in Manila. The RTC found accused-appellant Monalyn Cervantes guilty beyond reasonable doubt of violation of Section 15, Article III of Republic Act No. (RA) 6425 or the Dangerous Drugs Act of 1972, as amended. The records show the following facts: In an Information dated April 7, 2000, accused-appellant and three others were charged with violation of Sec. 15, Art. III of RA 6425 (selling or distributing a regulated drug), allegedly committed as follows: That, on or about April 5, 2000, in the City of Manila, Philippines, and within the jurisdiction of this Honorable Court, accused ISIDRO ARGUSON y ARENDELA, @ Tisoy, MONALYN [CERVANTES] y SOLAR @ Mona, WILSON DEL MONTE @ Wilson and RICHARD REQUIZ @ Richard, conspiring, confederating and mutually helping one another, acting in common accord, did then and there, willfully, unlawfully and feloniously, for the amount of FIVE HUNDRED THOUSAND (P500,000.00) PESOS, Philippine Currency, sell, deliver and give away to a poseur-buyer, FOUR HUNDRED SEVENTY THREE POINT SEVENTY SIX (473.76) GRAMS OF METHAMPHETAMINE [HYDROCHLORIDE], commonly known as shabu, a regulated drug, without authority of law or the corresponding license therefor. CONTRARY TO LAW.1 Accused-appellant and her co-accused pleaded not guilty to the charge. In the ensuing trial, the prosecution presented in evidence the oral testimonies of William Todavia, PO3 Reynaldo Ramos of the Philippine National Police Regional Office IV (PNP R-IV), and P/Sr. Inspector Lorna Tria, a forensic chemical officer of the same regional office. The Peoples version of the incident, as summarized by the CA in the decision now on appeal, is as follows: On April 5, 2000, the Regional Special Operations Group IV (RSOG-IV), based at Camp Vicente Lim in Calamba, Laguna, received a tip from a deep penetration agent (DPA) about a group of drug traffickers led by Isidro Arguson operating in Cavite. Acting on this bit of information, a team led by SPO2 Geronimo Pastrana, PO3 Ramos, and PO2 Emerson Balosbalos arranged a buy-bust operation to be conducted at Argusons rest house in Barangay Lambingan, Tanza, Cavite.2 Upon arriving at the rest house, PO3 Ramos and PO2 Balosbalos, acting as poseur-buyers, were introduced by the DPA to Arguson as the buyers of PhP 500,000 worth of shabu, simultaneously showing him a bundle of money. Since Arguson did not have enough supply of shabu in the premises, he instructed the would-be-buyers

G.R. No. 181494 March 17, 2009 PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, vs. MONALYN CERVANTES y SOLAR, Accused-Appellant.

to follow him to Pasay City. For the purpose, he hired a vehicle owned by Todavia. At about three oclock in the afternoon of that day, in front of the McDonalds branch in P. Ocampo St., Pasay City,3 Arguson instructed the would-be-buyers to wait for someone who will come out from the nearby Estrella St. Very much later, accused-appellant emerged from Estrella St. and approached PO3 Ramos to check if he still had the money. After being shown the money bundle, accused-appellant left, only to return a few minutes later this time with Arguson, Wilson Del Monte, who was holding a black plastic bag, and Richard Requiz. Arguson then took from Del Monte the bag, later found to contain 473.76 grams of shabu packed in six small self-sealing transparent bags, and handed it to PO2 Balosbalos, who in turn gave him the bundle of boodle money. Finally, PO3 Ramos gave the prearranged signal to indicate the consummation of the drug deal and introduced himself as policeman. Accused-appellant and her scampering companions were later arrested and brought to and booked at Camp Vicente Lim. The black plastic bag containing the six small self-sealing bags of white crystalline substance was likewise taken to Camp Vicente Lim where PO3 Ramos prepared the booking sheets and arrest reports and the request for a qualitative analysis of the seized items. Regional Crime Laboratory Office IV Chief Inspector (C/I) Mary Jean Geronimo then conducted the standard physical and chemical examinations on the specimen referred to her. On April 6, 2000, C/I Geronimo prepared and completed Chemistry Report No. D-115800 on the crystalline substance. Per her report, the substance tested positive for methamphetamine hydrochloride or shabu. Apart from the witnesses affidavits and other documents, the prosecution, in the hearing of March 4, 2002, offered in evidence the following exhibits,4 inclusive of its sub markings, which, as may be expected, were objected to by the defense: (a) Exhibit "B" Chemistry Report No. D-115800 prepared by C/I Geronimo; (b) Exhibit "C" Memorandum of RSOG-IV dated April 5, 2000 to the Chief, Laboratory Service, requesting for qualitative analysis of the contents of the six transparent plastic bags; (c) Exhibits "D" and "D-1" to "D-6" Black plastic bag with markings; and six (6) self-sealing transparent bags allegedly containing the confiscated shabu; and (d) Exhibit "F" Receipt of property seized signed by PO2 Balosbalos and by Todavia and PO3 Ramos as witnesses. The CA decision likewise summarized the defenses account of what purportedly transpired, to wit: Accused-appellant testified that after she did laundry works at her house in Estrella Street near F.B. Harrison on April 4, 2000, her youngest child asked her to go to [McDonalds], Vito Cruz branch, to buy ice cream. When they arrived thereat at about 4:30 in the afternoon, there was a commotion going on in front of the restaurant. She then saw a woman who alighted from a nearby van and pointed her out to her companions, one of whom

[was] an old man boarded her inside the van causing her to lose hold of her child. Thereafter, two (2) younger male persons, whom she later came to know as DEL MONTE and REQUIZ, were also boarded into the same van. They were taken to a cemetery where another vehicle came and took them to Camp Vicente Lim, where she allegedly met ARGUSON for the first time. On the other hand, accused DEL MONTE testified that he was a parking boy around Vito Cruz and that on the day in question, while he was watching a vehicle near [McDonalds], Vito Cruz branch, a commotion happened near his post. As he moved backward from where he stood, he was suddenly approached by a policeman who arrested him and boarded him inside a vehicle together with CERVANTES and REQUIZ, whom he did not know prior to that incident. For his part, accused REQUIZ testified that on the date and time in question, he was riding a borrowed bicycle on his way to the Cultural Center, passing by F.B. Harrison St., when he bumped a parked van, wherefrom a man alighted and cursed him, saying "pulis ako wag kang aalis dyan[!] " The man left and when he returned, accused CERVANTES was with him. Thereafter, he was boarded into the van together with the other accused.5 While not stated in the CA decision, Del Monte testified, like accusedappellant, that he was taken to a cemetery somewhere in Cavite where the arresting officers lingered for an hour before bringing him to Camp Vicente Lim.6These testimonies remained uncontroverted. Arguson died during the course of the trial resulting in the dismissal of the case against him.7 On April 23, 2004, the RTC rendered judgment acquitting Del Monte and Requiz but finding accused-appellant guilty as charged and meting upon her the penalty of reclusion perpetua. The fallo of the RTC Decision reads: WHEREFORE, in view of the foregoing, judgment is hereby rendered: 1. Finding accused MONALYN CERVANTES Y SOLAR GUILTY beyond reasonable doubt of violation of Sec. 15, Article III, of Republic Act No. 6425 as amended, and is sentenced to Reclusion Perpetua and to pay a fine in the amount of Php500,000.00; and 2. Finding the prosecutions evidence insufficient to prove the guilt of accused WILSON DEL MONTE and RICHARD REQUIZ beyond reasonable doubt, and who are hereby ACQUITTED. SO ORDERED.8 On May 18, 2004, accused-appellant filed a Notice of Appeal, pursuant to which the RTC forwarded the records of the case to this Court. Conformably with People v. Mateo,9 the Court directed the transfer of the case to the CA where it was docketed as CA-G.R. CR-H.C. No. 00476. Before the appellate court, accused-appellant urged her acquittal on the ground of "insufficiency of evidence," particularly stating that the "forensic chemist who actually conducted the laboratory examination on the specimens

allegedly recovered from the accused was not presented in court x x x [and] hence, there was no clear identification of the contents of the confiscated sachets."10 By its Decision11 dated July 19, 2007, the CA, finding the elements necessary for the prosecution of illegal sale of drugs12 to have sufficiently been satisfied and the identification of accused-appellant having been established, affirmed her conviction. The CA rejected accused-appellants lament about one Inspector Tria testifying on the chemistry report she did not prepare. As the appellate court stressed, C/I Geronimos forensic report "carries the presumption of regularity in the performance of official functions [and] the entries thereon x x x are prima facie evidence of the facts therein stated." The CA added the observation that absent any evidence overturning the presumption of regularity in the performance of official functions, the probative value and admissibility of the forensic report prepared by C/I Geronimo, who had resigned from the service, must be upheld even if she did not personally testify in court. On August 17, 2007, accused-appellant filed a Notice of Appeal of the CA affirmatory decision. On March 24, 2008, this Court required the parties to submit supplemental briefs if they so desired. The parties manifested their willingness to submit the case on the basis of the records already submitted, thus veritably reiterating their principal arguments raised in the CA, which on the part of accused-appellant would be: THE [CA] GRAVELY ERRED IN FINDING THE ACCUSED-APPELLANT GUILTY OF THE OFFENSE CHARGED DESPITE THE INSUFFICIENCY OF EVIDENCE FOR THE PROSECUTION. For its part, the People, thru the Office of the Solicitor General, counters that the prosecution has established that the buy-bust transaction took place, has identified accused-appellant and her complicity in Argusons illegal trade, and has presented the corpus delicti, as evidence. The Courts Ruling After a circumspect study, the Court resolves to acquit accused-appellant, considering certain circumstances engendering reasonable doubt as to her guilt. We start off with the most basic, the testimony of the prosecutions principal witness, PO3 Ramos, who identified accused-appellant and described her role in the conspiracy to sell shabu. In the witness box, PO3 testified that, after being told by Arguson to wait for someone who will come out from the street whence Arguson would enter, accused-appellant emerged from said street, checked on the purchase money, asked the operatives to wait, and later re-appeared. What happened next is captured by the following answers of PO3 Ramos to the prosecutors questions:

Q: What did you see when Cervantes already returned? A: When Monalyn return the one holding the plastic bag was Wilson, sir. Q: Wilson? A: Yes, sir, together with Richard, Wilson, Arguson, they were four (4). Atty. Cruz: Your honor, may we move to strike that out x x x. Fiscal Formoso: Thats part of the answer x x x now, when all these accused here return with Monalyn Cervantes, what happen[ed]? A: Arguson took the plastic bag from Wilson, sir and handed it to Balosbalos, Balosbalos gave Arguson the boodle money while I flash the signal x x x then we apprehended them.13 As may be noted, PO3 Ramos categorically stated that Del Monte was among the four who emerged with Arguson from a street. Without hesitation, PO3 Ramos pointed to Del Monte as the one holding the plastic bag allegedly containing the prohibited substance until Arguson took it from him and handed it over to PO2 Balosbalos. There is no suggestion that accused-appellant, while at the crime scene, ever handled the merchandise or its container. Yet, the trial court acquitted Requiz and Del Monte, but convicted accused-appellant, stating: "Clearly, accused Monalyn Cervantes complicity with accused Isidro Arguson in the sale of shabu has been established by the testimony of PO3 Ramos."14 But two paragraphs later, the RTC went on to write: x x x While PO3 Ramos testified that the bag was initially held by accused Del Monte and then taken from him by accused Arguson, there is no other evidence which can support the charge of conspiracy with Arguson and Cervantes x x x. The court does not find the evidence sufficient to pass the test of moral certainty to find accused Del Monte liable as charged. Even if PO3 Ramos saw him to have held the bag for Arguson, it could have been possible that he was merely asked by Cervantes or Arguson to carry the bag.15 Before us then is a situation where two personsaccused-appellant, a laundry woman; and Del Monte, a car park boy, in the company of the ostensible pusher, Arguson, during the actual buy bustare being indicted, on the basis alone of the testimony of a witness, with confederating with each and several others to sell shabu. The overt acts performed by accused-appellant, as indicia of conspiracy, consisted of allegedly verifying whether the poseur-buyer still had the purchase money, disappearing from the scene and then coming back with the principal player. On the other hand, Del Monte came accompanying Arguson carrying the drug-containing plastic bag no less. As between the two acts performed, carrying the bag would relatively have the more serious implication being in itself a punishable act of possession of regulated drugs. Both offered the defenses of denial and instigation, each testifying that they just happened to be near or passing by McDonalds at about 4:30 in the afternoon of April 4, 2000 when they were apprehended. But the trial court, in its observation that "it could have been possible that [Del Monte] was merely asked by x x x

Arguson to carry the bag," extended to Del Monte the "benefit of the doubt," a benevolence denied to accused-appellant without so much of an acceptable explanation. Any reasonable mind might ask: Why the contrasting treatment? Why consider PO3 Ramos as a highly credible eyewitness as against accused-appellant, but an unreliable one as against Del Monte, when both accused are complete strangers to the policeman? To paraphrase an unyielding rule, if the inculpatory testimony is capable of two or more explanations, one consistent with the innocence of the accused persons and the other consistent with their guilt, then the evidence does not fulfill the test of moral certainty and is not sufficient to support a conviction.16 But even if we were to cast aside the foregoing equipoise rule, a reversal of the appealed decision is indicated on another but more compelling ground. We refer to the postulate that the prosecution, having failed to positively and convincingly prove the identity of the seized regulated substance, is deemed to have also failed to prove beyond reasonable doubt accusedappellants guilt. We shall explain. In every prosecution for illegal sale of dangerous drug, what is crucial is the identity of the buyer and seller, the object and its consideration, the delivery of the thing sold, and the payment for it. Implicit in these cases is first and foremost the identity and existence, coupled with the presentation to the court of the traded prohibited substance, this object evidence being an integral part of the corpus17 delicti18 of the crime of possession or selling of regulated/prohibited drug.19 There can be no such crime when nagging doubts persist on whether the specimen submitted for examination and presented in court was what was recovered from, or sold by, the accused.20Essential, therefore, in appropriate cases is that the identity of the prohibited drug be established with moral certainty. This means that on top of the key elements of possession or sale, the fact that the substance illegally possessed and sold in the first place is the same substance offered in court as exhibit must likewise be established with the same degree of certitude as that needed to sustain a guilty verdict. And as we stressed in Malillin v. People, the "chain of custody requirement performs this function in that it ensures that unnecessary doubts concerning the identity of the evidence are removed."21 So it is that in a slew of cases the Court has considered the prosecutions failure to adequately prove that the specimen submitted for laboratory examination was the same one supposedly seized from the offending seller or possessor as ground for acquittal.22 Sec. 1(b) of the Dangerous Drugs Board Regulation No. 1, Series of 2002, or the "Guidelines on the Custody and Disposition of Seized Dangerous Drugs, Controlled Precursors and Essential Chemicals, and Laboratory Equipment," defines "chain of custody," thusly: "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals x x x from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and

custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody [was] made in the course of safekeeping and use in court as evidence, and the final disposition.23 As a mode of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. In context, this would ideally include testimony about every link in the chain, from the seizure of the prohibited drug up to the time it is offered into evidence, in such a way that everyone who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness possession, the condition in which it was received, and the condition in which it was delivered to the next link in the chain.24 The need for the punctilious observance of the chain-of-custody process in drug-related cases is explained in Malillinin the following wise: While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain,an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibits level of susceptibility to fungibility, alteration or tamperingwithout regard to whether the same is advertent or otherwise notdictates the level of strictness in the application of the chain of custody rule. xxxx A unique characteristic of narcotic substances is that they are not readily identifiable as in fact they are subject to scientific analysis to determine their composition and nature. The Court cannot reluctantly close its eyes to the likelihood, or at least the possibility, that at any of the links in the chain of custody over the same there could have been tampering, alteration or substitution of substances from other casesby accident or otherwisein which similar evidence was seized or in which similar evidence was submitted for laboratory testing. Hence, in authenticating the same, a standard more stringent than that applied to cases involving objects which are readily identifiable must be applied, a more exacting standard that entails a chain of custody of the item with sufficient completeness if only to render it improbable that the original item has either been exchanged with another or been contaminated or tampered with.25 (Emphasis added.) As the Court distinctly notes in this case, of the individuals who came into direct contact with or had physical custody of the seized regulated items, only PO3 Ramos testified for the specific purpose of identifying the evidence. In the witness box, however, he did not indicate how he and his companions, right after the buy bust, handled the seized plastic bag and its contents. He did not name the duty desk officer at Camp Vicente Lim to

whom he specifically turned over the confiscated bag and sachets at least for recording. What is on record is Exhibit "C," which, as earlier described, is a memorandum26 PO3 Ramos prepared27 dated April 5, 2000 from the RSOG-IV Director to the Chief, PNP R-IV Crime Laboratory Service, submitting for qualitative analysis the white crystalline substance confiscated by the buy-bust group. Needless to stress, the unnamed person who delivered the suspected shabu and the recipient of it at the laboratory were no-show in court to testify on the circumstances under which they handled the specimen or whether other persons had access to the specimen before actual testing. And C/I Geronimo, the analyzing forensic chemist, was not also presented. Then, too, no one testified on how the specimen was cared after following the chemical analysis. As the Court observed aptly in People v. Ong, "[T]hese questions should be answered satisfactorily to determine whether the integrity of the evidence was compromised in any way. Otherwise, the prosecution cannot maintain that it was able to prove the guilt of appellants beyond reasonable doubt."28 It cannot be overemphasized that Inspector Tria was really not part of the custodial chain. And she did not as she could not, even if she wanted to, testify on whether or not the specimen turned over for analysis and eventually offered in court as exhibit was the same substance received from Arguson. Given the foregoing perspective, it is fairly evident that the police operatives trifled with the procedures in the custody of seized prohibited drugs in a buy-bust operation, as embodied in Sec. 21(1), Art. II of RA 9165, i.e., the apprehending officer/team having initial custody and control of the drug shall: immediately after seizure and confiscation, physically inventory and photograph the [drug] in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof.29 In this case, no physical inventory was made and no photograph taken nor markings made on the seized articles at the crime scene. PO3 Ramos admitted as much, thus: Q. Now, you were able to arrest all the accused here, after their arrest, what did you do? A. After informing their rights and the reason why we arrest them we brought them immediately to our office in Canlubang. xxxx Q. Now, what about this Shabu, who was in possession of this Shabu x x x when you left the place and proceeded to Canlubang? A. PO2 Balosbalos, sir. xxxx

Q. Now, when you reach your office, what did you do there? A. I made the booking sheet and I requested for their medical/physical examination x x x.30 Just as clear is the fact that the exacting chain of custody rule was not observed. Withal, there is no reasonable assurance that no tampering or substitution occurred between the time the police seized the black bag in P. Ocampo St. in Manila until its contents were tested in the laboratory of the PNP R-IV headquarters in Canlubang, Laguna. In net effect, a heavy cloud of doubt hangs over the integrity and necessarily the evidentiary value of the seized items. The prosecution cannot, thus, rightfully assert that the six sachets seized from Arguson were the very same objects tested by C/I Geronimo and offered in court in proving the corpus delicti. Adding a negative dimension to the prosecutions case is the nonpresentation of C/I Geronimo and the presentation in her stead of Inspector Tria to testify on the chemical report C/I Geronimo prepared. While Inspector Tria can plausibly testify on the fact that C/I Geronimo prepared the chemical report in the regular course of her duties, she, Inspector Tria, was incompetent to state that the specimen her former colleague analyzed was in fact shabu and was the same specimen delivered to the laboratory for chemical analysis. To be sure, the Court, notably in People v. Bandang, has held that the nonpresentation of the forensic chemist in illegal drug cases is an insufficient cause for acquittal. In it, the accused persons were convicted of illegal sale of shabu even if the forensic chemist who prepared the corresponding laboratory report was not presented. Thus, we wrote: x x x In People vs. Uy, we ruled that a forensic chemist is a public officer and as such, his report carries the presumption of regularity in the performance of his function and duties. Corollarily, under Section 44 of Rule 130, x x x entries in official records made in the performance of official duty are prima facie evidence of the facts therein stated. Omeros reports that the seven sachets of white crystalline substance were "positive for methylamphetamine hydrochloride" or shabu are, therefore, conclusive in the absence of evidence proving the contrary, as in this case.1avvphi1.zw+ Second, it must be stressed that Atty. Enriquez raises his objection to the Initial Laboratory Report and Chemistry Report No. D-1585-00 only now. He should have objected to their admissibility at the time they were being offered. Otherwise, the objection shall be considered waived and such evidence will form part of the records of the case as competent and admissible evidence. The familiar rule in this jurisdiction is that the admissibility of certain documents x x x cannot be raised for the first time on appeal.31 (Emphasis added.) It should be pointed out, however, that the Bandang ruling was cast against a different backdrop where: (1) the seized crystalline substance was the same item examined and tested positive for shabu and presented in court, implying that the identity and integrity of prohibited drug was safeguarded

throughout, a circumstance not obtaining in this case; (2) there was a compelling reason for not presenting the examining forensic chemist, i.e., the parties stipulated that the confiscated seven plastic bags have been identified and examined and that the chemist stated in his report that the substance is positive for shabu. In this case, C/I Geronimos resignation from the service is not, standing alone, a justifying factor for the prosecution to dispense with her testimony; and (3) accused Bandang, et al. did not raise any objection to the chemical report during trial, unlike here where accused-appellant objected to Inspector Trias competency to testify on the Geronimo chemical report. At any rate, Inspector Trias testimony on, and the presentation of, the chemistry report in question only established, at best, the existence, due execution, and authenticity of the results of the chemistry analysis.32 It does not prove compliance with the requisite chain of custody over the confiscated substance from the time of seizure of the evidence. In this regard, the Court in effect stated in Malillin that unless the state can show by records or testimony that the integrity of the evidence has not been compromised by accounting for the continuous whereabouts of the object evidence at least between the time it came into the possession of the police officers until it was tested in the laboratory,33 then the prosecution cannot maintain that it was able to prove the guilt of the accused beyond reasonable doubt. So it was that in People v. Kimura the Court said that in establishing the corpus delicti, proof beyond reasonable doubt demands that "unwavering exactitude"34 be observed, a demand which may be addressed by hewing to the chain-of-custody rule. Evidently, the prosecution has not proved that the substance seized in front of the McDonalds was the same substance adduced in evidence as an indispensable element of corpus delicti of the crime, which failure produces a serious doubt as to accused-appellants guilt.35 Both the trial and appellate courts made much of the presumption of regularity in the performance of official functions both with respect to the acts of PO3 Ramos and other PNP personnel at Camp Vicente Lim. To a point, the reliance on the presumptive regularity is tenable. This presumption is, however, disputable and may be overturned by affirmative evidence of irregularity or failure to perform a duty;36 any taint of irregularity vitiates the performance and negates the presumption. And as earlier discussed, the buy bust team committed serious lapses in the handling of the prohibited item from the very start of its operation, the error of which the PNP R-IV command later compounded. The Court need not belabor this matter anew. Lest it be overlooked, the presumption of regularity in the performance of official duty always yields to the presumption of innocence and does not constitute proof beyond reasonable doubt.37 We held in one case: The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellants conviction because, "[f]irst, the presumption is precisely just thata mere presumption. Once challenged by evidence, as in this case, x x x [it] cannot be regarded as

binding truth. Second, the presumption of regularity in the performance of official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt."38 For failure then of the prosecution to establish the guilt of accusedappellant beyond reasonable doubt, she must perforce be exonerated from criminal liability. The facts and the law of the case call for this kind of disposition. But a final consideration. The Court is cognizant of the campaign of the police and other drug enforcement agencies against the growing drug menace in the country. Unfortunately, their best efforts, particularly successful honest-to-goodness buy-bust operations, sometimes still end up in the acquittal of illegal drug manufacturers, distributors, pushers and/or lesser players, even when nabbed in flagrante, simply because drug enforcement operatives tend to compromise the integrity and evidentiary worth of the seized illegal items. This aberration is oftentimes in turn attributable to the unfamiliarity of police operatives of extant rules and procedures governing the custody, control, and handling of seized drugs. This is, thus, an opportune time to remind all concerned about these rules and procedures and the guiding jurisprudence. And to put things in the proper perspective, non-compliance with the legal prescriptions of the Dangerous Drugs Act, as amended, is, as we made abundantly clear in People v. Sanchez, not necessarily fatal to the prosecution of drugrelated cases; that police procedures may still have some lapses. These lapses, however, must be recognized, addressed, and explained in terms of their justifiable grounds, and the integrity and evidentiary value of the evidence seized must be shown to have been preserved by the apprehending officer or team. To be forewarned is to be forearmed. WHEREFORE, the CA Decision dated July 19, 2007 in CA-G.R. CR-H.C. No. 00476, affirming that of the RTC, Branch 53 in Manila which found her guilty of violating Sec. 15, Art. III of RA 6425 and imposed upon her the penalty of reclusion perpetua and a fine of PhP 500,000, is hereby REVERSED and SET ASIDE. Accused-appellant Monalyn Cervantes y Solar is ACQUITTED on the ground of reasonable doubt and is accordingly immediately RELEASED from custody unless she is being lawfully held for some lawful cause. The Director of the Bureau of Corrections is directed to implement this Decision and to report to this Court the action taken hereon within five (5) days from receipt of this Decision. SO ORDERED.

SECOND DIVISION G.R. No. 175832 October 15, 2008

PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. SALVADOR SANCHEZ y ESPIRITU, accused-appellant. DECISION BRION, J.: This case confronts us once more with the buy-bust of a prohibited drug and the procedural difficulties this type of operation poses for the police as well as for the prosecution. On appeal is the September 11, 2006 Decision1 of the Court of Appeals (CA) in CA-G.R. CR-H.C. No. 01095. The CA affirmed the April 14, 2005 Decision2 of the Regional Trial Court (RTC), Branch 103, Quezon City, that found the accused-appellant Salvador Sanchez y Espiritu (appellant) guilty beyond reasonable doubt of violation of Section 5, Article II of Republic Act (R.A.) No. 9165 (the Comprehensive Dangerous Drugs Act of 2002), meriting him the penalty of life imprisonment. ANTECEDENT FACTS The prosecution charged the appellant before the RTC with violation of Section 5, Article II of R.A. No. 9165 under an Information that states: xxx

That on or about the 6th day of April 2003 in Quezon City, Philippines, the said accused, not being authorized by law to sell, dispense, deliver, transport or distribute any dangerous drug, did, then and there, willfully and unlawfully sell, dispense, deliver, transport, distribute or act as broker in the said transaction, zero point zero two (0.02) grams of white crystalline substance containing methylamphetamine hydrochloride, a dangerous drug. CONTRARY TO LAW.3

On cross examination, PO Sevilla reiterated his testimony adding that whenever he is tasked as a poseur buyer he always gives as reason that he wanted to be thinner and drug pushers never questioned him about that. PO Sevilla, who was wearing a crew cut in court said that when he bought shabu from the accused his hair style was different. It was his first time to entrap at that place as a poseur buyer. Their marked Anfra van was parked along Quirino Highway, Quezon City from where he and the informant walked to Lualhati Street for about 10 minutes as the target scene was about 100 meters away. He reiterated that their Pre-op Report

The appellant pleaded not guilty to the charge. The prosecution presented its lone witness - SPO2 Levi Sevilla (SPO2 Sevilla) - in the trial on the merits that followed. The appellant and his witness, Nida Detera (Nida), took the stand for the defense. The RTC summarized the material points of the testimony of SPO2 Sevilla as follows: x x x while he was on Station 3 duty at Talipapa, Novaliches, Quezon City on April 6, 2003 a confidential informant arrived at around 4:30 noon and reported that there is a person who has been selling shabu. An entrapment team was formed consisting of himself as poseur buyer, SPO1 Brigido An, PO3 Virgilio Bernardo, PO2 Manny Paulilis and PO1 Cecil Collado. A preoperational report was submitted of the undertaking. At 5:00 p.m., the team was dispatched to the target area at the far end Lualhati Street, Manotok Subd., Baesa, Quezon City. PO Sevilla put his initial "LS" on the money given to him to be used at the entrapment.5 At the place, which is a squatter's colony located at the edge or side of Lualhati St., PO Sevilla and his informant walked towards the place pointed by the informant and met the drug pusher. The informant introduced PO Sevilla to the pusher. The informant and the pusher talked for a while. Thereafter, PO Sevilla talked to the latter. He told him that he badly needs shabu para pumayat. x x x PO Sevilla then gave the pusher P100.00 (the marked money) and in return the pusher gave him a plastic sachet of shabu.6 After receiving the plastic sachet, PO Sevilla scratched his head as a prearranged signal to his colleagues who were deployed nearby. Said other policemen rushed to the crime scene while PO Sevilla grabbed the right hand of the accused and introduced himself as a cop. The accused was frisked and PO Sevilla recovered the P100.00 marked money bill (Exh. G) in the right side pants pocket of the accused who was later brought to Station 3. PO Sevilla identified the transparent plastic sachet on which he placed his initial "LS" and the initial "SS" of the accused (Exh. E).7

was sent to PDEA and given a control number.8 [Italics and footnotes referring to the pertinent parts of the records supplied] The RTC dispensed with the testimony of Forensic Chemist John Paul Puentespina after the parties stipulated that "the items allegedly confiscated from the accused were submitted to the crime laboratory for examination and the findings were put into writing."9 In the hearing of December 4, 2003, the prosecution offered the following as exhibits: Exhibit "A" - the request for laboratory examination of the specimen confiscated from the appellant; Exhibit "B" - the Initial Laboratory Report prepared by Forensic Chemist Paul Jerome Puentespina; Exhibit "C" - the Confirmatory or Final Chemistry Report No. D-366-03 prepared by Forensic Chemist Paul Jerome Puentespina; Exhibit "D" - sworn Certification to show that the Chemistry Report was subscribed and sworn to before an Administering Officer; Exhibits "E", "E-1" and "E-2" - the specimen taken from the appellant; the initials of Forensic Chemist Puentespina; and the initials of the police officer who arrested the accused and who received the specimen in exchange for the buy bust money, respectively; Exhibit "F" - the brown envelope where the seized evidence was placed after it was examined by Forensic Chemist Puentespina; Exhibits "G" and "G-1" - the buy bust money and the initials written therein of the poseur buyer, respectively;

Exhibits "H" and "H-1" - the Joint Affidavit of the entrapment team and the signature therein by SPO2 Sevilla, respectively. The defense objected to Exhibits "E," "E-1," "E-2," "G" and "H," contending that the appellant "had nothing to do with the specimen presented before the court," and that the confiscated specimen resulted from an illegal arrest. On Exhibit "G," the defense argued that no evidence of powder was ever presented by the prosecution witness. The defense likewise objected to the presentation of Exhibit "H" on the ground that its contents were selfserving. The appellant gave a different version of the events in his testimony of January 30, 2005. He narrated that at around 5:25 in the afternoon of April 6, 2003, he was in his house putting his children to sleep when three (3) police officers suddenly barged into his house, searched the premises, frisked him, and forced him to come with them.10 He recognized one of the policemen as "Sir Levi," a former colleague of his uncle, Sonny Catiis, at the police station. The police officers then handcuffed him and asked him to get into a police vehicle. He begged them and shouted, "Sir you already frisked me in the house and you did not find anything, you might just plant evidence in my pocket, please do not do so." The police brought him to Police Station 3, Talipapa, Quezon City, and placed him in a detention cell without an investigation being conducted.11 While inside his cell, the police showed him a plastic sachet and said that it was the shabu taken from him. SPO2 Sevilla asked him to call his uncle, but he refused to do so; he feared that his uncle would think that the confiscated shabu was really taken from him.12 Nida testified that she was at the kitchen of the appellant's house doing the laundry between 2:00-3:00 in the afternoon of April 6, 2003, when she heard loud knocks on the door. The appellant, who was in bed, stood up and opened the door.13 A person entered, pushed the appellant backwards, and handcuffed him. This person then ordered the appellant to sit down so he (the appellant) could be asked questions. A total of four persons, all male, entered the house. Afterwards, the appellant and she were frisked; a lighter was taken from her, but nothing was seized from the appellant.14 The RTC primarily considered the reputation of SPO2 Sevilla in giving weight to his testimony, and held that "PO Sevilla has been a frequent witness in drugs cases and he has already established his credibility before this court." Its decision of April 14, 2005 found the appellant guilty beyond reasonable doubt of violation of Section 5, Article II of R.A. No. 9165. It imposed on him the penalty of life imprisonment and ordered him to pay a fine ofP50,000.00.

The appellant appealed to the CA, with the appeal docketed as CA-G.R. CRH.C. No. 01095. In its decision of September 11, 2006, the CA affirmed the RTC decision. In his brief15 on appeal, the appellant contends that the court a quo gravely erred in finding him guilty beyond reasonable doubt for violation of R.A. No. 9165. He maintains that the courts order of conviction was merely based on the good reputation SPO2 Sevilla has established with the court based on the many drug cases he had handled. The trial court, too, wrongly interpreted the appellants appearance and demeanor because "his head was bowed and his eyes were dreamy and sad."16 The defense harps, too, on the prosecutions failure to prove that the sachets allegedly recovered from the appellant were the ones submitted to the forensic chemist for examination, as well as its failure to follow the proper chain of custody in handling the seized evidence. It was only the arresting officer who testified that he confiscated the sachet from the accused. The police officer who conducted the subsequent investigation and to whom the confiscated sachet was allegedly turned over was not identified nor presented as witness. Hence the identity of the evidence presented against the appellant is doubtful.17 The prosecution counters with the argument that the trial courts findings on the credibility of SPO2 Sevilla and the lack of it with respect to the appellant and his witness Nida, should be given great weight and respect, as the trial court had the chance and the prerogative to hear and appreciate these matters at the trial. SPO2 Sevilla described in a clear and unwavering manner how the police team planned for and conducted the buy-bust operation, and how he marked the plastic sachet of shabu he bought from appellant immediately after the latters arrest. Even the statement regarding the credibility of SPO2 Sevilla, a frequent witness before the trial court in drug cases, does not mean that the trial court was biased. If at all, it only meant that the trial court had known SPO2 Sevilla and had often observed his demeanor as a witness. The prosecution further argues that the evidence for the defense is incredible and doubtful judging from the testimonies of the appellant and his witness Nida. While the appellant testified that his alleged unlawful arrest transpired at 5:25 p.m. of April 6, 2003, his witness Nida testified with certainty that she witnessed the arrest take place on the same date between 2:00 p.m. and 3:00 p.m. as she saw the time on the wall clock. Moreover, the appellant himself admitted that he had no knowledge of any adverse reason or ill motive that would induce the arresting police officers to falsely implicate him. To the prosecution, this lack of ill motive supports the view that SPO2 Sevilla testified to the truth and his acts should enjoy the presumption of regularity.

As to the corpus delicti, the prosecution stresses that it fully proved that the item recovered from the appellant is positive for shabu. The request for laboratory examination of the specimen confiscated from the appellant; the initial laboratory report showing that the item bought and/or seized from appellant is positive for shabu; and the final chemistry report were all formally offered in evidence, without any objection from the appellant. The defense, in fact, agreed to stipulate on the contents and the veracity of the forensic examinations made relative to the item recovered from the appellant. The corpus delicti having been proven and even admitted by the appellant, there was nothing more for the prosecution to establish; it had proven beyond reasonable doubt all the elements of the illegal sale of dangerous drugs, specifically - (a) the identity of the buyer and seller, the object and the consideration; and (b) the delivery of the things sold and the payment therefor. THE COURT'S RULING After due consideration, we resolve to acquit the appellant for the prosecutions failure to prove his guilt beyond reasonable doubt. Non-observance of the requirements of Section 21, paragraph 1 of Article II of Republic Act No. 9165 In considering a criminal case, it is critical to start with the laws own starting perspective on the status of the accused in all criminal prosecutions, he is presumed innocent of the charge laid unless the contrary is proven beyond reasonable doubt.18 Thus, while the charge was laid after a preliminary finding that a probable cause existed showing that a crime had been committed and the accused was probably guilty thereof, the criminal trial itself starts with the substantive presumption of the innocence on the part of the accused, rebuttable only by proof of his guilt beyond reasonable doubt. The burden of such proof rests with the prosecution which must rely on the strength of its case rather than on the weakness of the case for the defense. Proof beyond reasonable doubt, or that quantum of proof sufficient to produce a moral certainty that would convince and satisfy the conscience of those who act in judgment, is indispensable to overcome the constitutional presumption of innocence.19 To prove the legitimacy of the police buy-bust operation, the prosecution presented the following: (a) a pre-operation report bearing Unit Control Number 0504-03-07 signed by the desk officer, police chief and team leader of the station drug enforcement unit, which indicated the type, time and general area of operation, the type of vehicles and firearms to be used, and the respective names of the team leader, poseur-buyer and members of the buy-bust team; (b) a photocopy of the marked money; and (c) the joint

affidavit of the entrapment team signed by the poseur-buyer, SPO2 Sevilla, and PO1 Collado. The operation yielded a plastic sachet containing shabu allegedly confiscated from the appellant. A buy-bust operation is a form of entrapment employed by peace officers to apprehend prohibited drug law violators in the act of committing a drugrelated offense.20 Because of the built-in danger for abuse that a buy-bust operation carries, it is governed by specific procedures on the seizure and custody of drugs, separately from the general law procedures geared to ensure that the rights of people under criminal investigation21 and of the accused facing a criminal charge22 are safeguarded. We expressed this concern in People v. Tan,23 when we recognized that "by the very nature of anti-narcotic operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in the pockets or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, the courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses." The required procedure on the seizure and custody of drugs is embodied in Section 21, paragraph 1, Article II of R.A. No. 9165, which states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis ours] This is implemented by Section 21(a), Article II of the Implementing Rules and Regulations of R.A. No. 9165, which reads: (a) The apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: x x x Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied]

The records of the present case are bereft of evidence showing that the buy-bust team followed the outlined procedure despite its mandatory terms, as indicated by the use of "shall" in its directives. The deficiency is patent from the following exchanges at the trial: FISCAL GIBSON ARAULA: Q: Now after you received that shabu or transparent plastic sachet containing shabu and gave the P100.00 bill to the accused, what happened next? SPO2 LEVI SEVILLA: A: After I received [sic] I scratched my head. Q: What is the purpose? A: Pre-arrange[d] signal. Q: After that what happened? A: They swooped down in the scene. Q: What happened after that? A: I grab [sic] his right hand. Q: When you grabbed his right hand what did you tell him? A: I introduced myself as Police Officer. Q: Then after that what happened next? A: I grabbed the accused and informed him of his constitutional right. Q: After informing of his constitutional right what happened Mr. Witness? A: We brought him to our station. Q: How about the transparent plastic sachet, where is it? A: It is in my possession.

Q: How about the buy-bust money in the amount of P100.00? A: I recovered it from the right pants pocket. Q: Now you said that you brought the accused to the Police Station, what happened to the Police Station? A: We turn [sic] him over to the Desk Officer. Q: What did you turn over? A: The accused and the evidences, the plastic shabu sir. Q: Before you turn over that plastic sachet Mr. Witness, what did you put there? A: I put my initial and initial of the accused. Q: If that transparent plastic sachet is shown to you, can you identify that Mr. Witness? A: Yes, sir. Q: Showing to you this plastic sachet Mr. Witness, what can you say to that transparent plastic sachet? A: This was the one I purchased from the accused because I have here my initial and the initial of the accused, sir. x x x x24 [Emphasis ours] Other than the markings that SPO2 Sevilla alleged, it is clear that no physical inventory and no photograph of the seized items were taken in the presence of the accused or his counsel, a representative from the media and the Department of Justice (DOJ), and an elective official. Based on the above testimony, SPO2 Sevilla - the prosecutions lone witness - also did not mark the plastic sachet of shabu immediately upon seizure; it was only marked upon arrival at the police station. Thus, other than the stipulation regarding the handling and results of the specimen at the forensic laboratory, SPO2 Sevillas testimony and the evidence he identified constitute the totality of the evidence for the prosecution on the handling of the allegedly seized items.

We recognize that the strict compliance with the requirements of Section 21 of R.A. No. 9165 may not always be possible under field conditions; the police operates under varied conditions, many of them far from ideal, and cannot at all times attend to all the niceties of the procedures in the handling of confiscated evidence. The participation of a representative from the DOJ, the media or an elected official alone can be problematic. For this reason, the last sentence of the implementing rules provides that "noncompliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." Thus, noncompliance with the strict directive of Section 21 of R.A. No. 9165 is not necessarily fatal to the prosecutions case; police procedures in the handling of confiscated evidence may still have some lapses, as in the present case. These lapses, however, must be recognized and explained in terms of their justifiable grounds and the integrity and evidentiary value of the evidence seized must be shown to have been preserved. In the present case, the prosecution apparently did not want to accept that the police had committed lapses in the handling of the seized materials and thus did not bother to present any explanation to justify the nonobservance of the prescribed procedures. It likewise failed to prove that the integrity and evidentiary value of the items adduced were not tainted as the discussions below will show. The non-observance by the police of the required procedure cannot therefore be excused. The "chain of custody" over the confiscated items was not proven Under Section 5, Article II25 of R.A. No. 9165, the elements necessary in every prosecution for the illegal sale of shabu are: (1) the identity of the buyer and the seller, the object and the consideration; and (2) the delivery of the thing sold and the payment therefor. Implicit in all these is the need for proof that the transaction or sale actually took place, coupled with the presentation in court of evidence of corpus delicti - the body of the crime whose core is the confiscated illicit drug.26 Proof beyond reasonable doubt demands that unwavering exactitude be observed in establishing the corpus delicti: every fact necessary to constitute the crime must be established.27 The chain of custody requirement performs this function in buy-bust operations as it ensures that doubts concerning the identity of the evidence are removed.28 In a long line of cases, we have considered it fatal for the prosecution to fail to prove that the specimen submitted for laboratory examination was the same one allegedly seized from the accused.29

Blacks Law Dictionary explains chain of custody in this wise: In evidence, the one who offers real evidence, such as narcotics in a trial of drug case, must account for the custody of the evidence from the moment in which it reaches his custody until the moment in which it is offered in evidence, and such evidence goes to the weight not to admissibility of evidence.Com. V. White, 353 Mass. 409, 232 N.E.2d 335. Likewise, Section 1(b) of Dangerous Drugs Board Regulation No. 1, Series of 200230 which implements R.A. No. 9165 defines "chain of custody" as follows: "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and use in court as evidence, and the final disposition. Although this regulation took effect on October 18, 2002 (or after the commission of the crime charged), it is nonetheless useful in illustrating how the process of preserving the integrity of the chain of custody of the seized drugs is ensured and maintained. That the police failed to approximate these safeguards and the prosecution failed to prove the identity of the specimen allegedly seized and the specimen submitted as evidence during the trial is evident from SPO2 Sevilla himself who testified as follows: FISCAL GIBSON ARAULA: Q: After informing [the accused] of his constitutional right what happened Mr. Witness? SPO2 LEVI SEVILLA A: We brought him to our station. Q: How about the transparent plastic sachet, where is it? A: It is in my possession. Q: How about the buy-bust money in the amount of P100.00?

A: I recovered it from the right pants pocket. Q: Now you said that you brought the accused to the Police Station, what happened to the Police Station? A: We turn him over to the Desk Officer. Q: What did you turn over? A: The accused and the evidences, the plastic shabu sir. Q: Before you turn over that plastic sachet Mr. Witness, what did you put there? A: I put my initial and initial of the accused. xxxx Q: By the way Mr. Witness after you turned over to the investigator the plastic sachet, did you happen to know where the investigator brought the plastic sachet? A: I gave that plastic sachet first to the table of the Desk Officer and the Desk Officer gave it to the investigator. FISCAL GIBSON ARAULA: That would be all for the witness. x x x x31 Significantly, this was the only testimony in the case that touched on the chain of custody of the seized evidence. It failed to disclose the identities of the desk officer and the investigator to whom the custody of the drugs was given, and how the latter handled these materials. No reference was ever made to the person who submitted the seized specimen to the PNP Crime Laboratory for examination. Likewise, no one testified on how the specimen was handled after the chemical analysis by the forensic chemist. While we are aware that the RTC's Order of August 6, 2003 dispensed with the testimony of the forensic chemist because of the stipulations of the parties, we view the stipulation to be confined to the handling of the specimen at the forensic laboratory and to the analytical results obtained. The stipulation does not cover the manner the specimen was handled before it came to the possession of the forensic chemist and after it left his possession. To be sure, personnel within the police hierarchy (as SPO2

Sevillas testimony casually mentions) must have handled the drugs but evidence of how this was done, i.e., how it was managed, stored, preserved, labeled and recorded from the time of its seizure, to its receipt by the forensic laboratory, up until it was presented in court and subsequently destroyed is absent from the evidence adduced during the trial. To repeat an earlier observation, even the time and place of the initial marking of the alleged evidence are not at all certain as the testimony on this point varies. The recent case of Lopez v. People32 is particularly instructive on how we expect the chain of custody or "movement" of the seized evidence to be maintained and why this must be shown by evidence: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witness' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not really identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise not dictates the level of strictness in the application of the chain of custody rule. [Emphasis ours] That the prosecution offered in evidence the request for laboratory examination (Exh. "A"), the initial laboratory report (Exh. "B"), and final Chemistry Report No. D-366-03 (Exh. "C"), to which the defense did not object, has no bearing on the question of whether the specimen submitted for chemical analysis and subsequently presented in court was the same as that seized from the appellant. All that these exhibits proved were the existence andauthenticity of the request for laboratory examination and the results of this examination, not the required chain of custody from the time of seizure of the evidence. Evidently, the prosecution has not

proven beyond reasonable doubt the indispensable element of corpus delicti of the crime. In People v. Orteza,33 the Court had the occasion to discuss the implications of the failure to comply with Section 21, paragraph 1, to wit: In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in antinarcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. [Emphasis supplied] We reached the same conclusion in People v. Nazareno34 and People v. Santos,35 where we again stressed the importance of complying with the prescribed procedure. Physical inventory and photograph requirement under Section 21 vis-a-vis "marking" of seized evidence While the first sentence of Section 21(a) of the Implementing Rules and Regulations of R.A. No. 9165 states that "the apprehending officer/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same," the second sentence makes a distinction between warrantless seizures and seizures by virtue of a warrant, thus: (a) x x x Provided, that the physical inventory and photograph shall be conducted at the place where the search warrant is served; or at the nearest police station or at the nearest office of the apprehending officer/team, whichever is practicable, in case of warrantless seizures; Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the

evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied] Thus, the venues of the physical inventory and photography of the seized items differ and depend on whether the seizure was made by virtue of a search warrant or through a warrantless seizure such as a buy-bust operation. In seizures covered by search warrants, the physical inventory and photograph must be conducted in the place where the search warrant was served. On the other hand, in case of warrantless seizures such as a buy- bust operation, the physical inventory and photograph shall be conducted at the nearest police station or office of the apprehending officer/team, whichever is practicable; however, nothing prevents the apprehending officer/team from immediately conducting the physical inventory and photography of the items at the place where they were seized, as it is more in keeping with the laws intent of preserving their integrity and evidentiary value. What Section 21 of R.A. No. 9165 and its implementing rule do not expressly specify is the matter of "marking" of the seized items in warrantless seizures to ensure that the evidence seized upon apprehension is the same evidence subjected to inventory and photography when these activities are undertaken at the police station rather than at the place of arrest. Consistency with the "chain of custody" rule requires that the "marking" of the seized items to truly ensure that they are the same items that enter the chain and are eventually the ones offered in evidence should be done (1) in the presence of the apprehended violator (2) immediately upon confiscation. This step initiates the process of protecting innocent persons from dubious and concocted searches, and of protecting as well the apprehending officers from harassment suits based on planting of evidence under Section 2936 and on allegations of robbery or theft.37 For greater specificity, "marking" means the placing by the apprehending officer or the poseur-buyer of his/her initials and signature on the item/s seized. If the physical inventory and photograph are made at the nearest police station or office as allowed by the rules,38 the inventory and photography of the seized items must be made in accordance with Sec. 2 of Board Resolution No. 1, Series of 2002,39 but in every case, the apprehended violator or counsel must be present. Again, this is in keeping with the desired level of integrity that the handling process requires. Thereafter, the seized items shall be placed in an envelope or an evidence bag unless the type and quantity of the seized items require a different type of handling and/or container. The evidence bag or container shall accordingly be signed by the handling officer and turned over to the next officer in the chain of custody.

Conclusion The evidentiary gap in identifying the specimen that the forensic laboratory analyzed brings us back to where we started in analyzing the case to the presumption of innocence that the Constitution accords the appellant. To reiterate, starting from this point, the prosecution must proceed to establish the guilt of the accused by proof beyond reasonable doubt. To do this, the prosecution presented its lone witness, SPO2 Sevilla, whom the lower court believed because the witness had testified before the court before. Thus, rather than look at the merits of his testimony, the lower court simply considered his person and past performance, and decided on this basis that he was a credible witness. This, by itself, is a major error a violation of due process on the part of the lower court that the appellate court apparently did not fully appreciate. A court must always decide on the basis of the evidence presented, not on the basis of any other extraneous consideration not before the court. The court apparently banked also on the presumption of regularity in the performance that a police officer like SPO2 Sevilla enjoys in the absence of any taint of irregularity and of ill motive that would induce him to falsify his testimony. Admittedly, the defense did not adduce any evidence showing that SPO2 Sevilla had any motive to falsify. The regularity of the performance of his duties, however, leaves much to be desired given the lapses in his handling of the allegedly confiscated drugs as heretofore shown. An effect of this lapse, as we held in Lopez v. People,40 is to negate the presumption that official duties have been regularly performed by the police officers. Any taint of irregularity affects the whole performance and should make the presumption unavailable. There can be no ifs and buts regarding this consequence considering the effect of the evidentiary presumption of regularity on the constitutional presumption of innocence. People v. Santos41 instructively tells us that the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt.42 In People v. Caete,43 we also said: While the Court is mindful that the law enforcers enjoy the presumption of regularity in the performance of their duties, this presumption cannot prevail over the constitutional right of the accused to be presumed innocent and it cannot, by itself constitute proof of guilt beyond reasonable doubt. The presumption of regularity in the performance of official duty cannot be used as basis for affirming accused-appellants conviction because "First, the presumption is precisely just that a mere presumption. Once challenged by evidence, as in this case, xxx [it] cannot be regarded as binding truth. Second, the presumption of regularity in the performance of

official functions cannot preponderate over the presumption of innocence that prevails if not overthrown by proof beyond reasonable doubt." The presumption also cannot prevail over positive averments concerning violations of the constitutional rights of the accused. In short, the presumption of regularity in the performance of official duty cannot by itself overcome the presumption of innocence nor constitute proof beyond reasonable doubt. Without the presumption of regularity, the evidentiary gap in identifying the seized evidence from its turnover by the poseur-buyer, its handling and custody, until its turnover to the forensic laboratory for analysis, stands out in bold relief. This gap renders the case for the prosecution less than complete in terms of proving the guilt of the accused beyond reasonable doubt. From the perspective of the defense, we cannot help but note that the evidence for the defense is far from strong; the appellant merely denied that a buy-bust operation took place and claimed that the evidence against him was a planted evidence. In this jurisdiction, the defense of denial or frame-up, like alibi, has been viewed with disfavor for it can easily be concocted and is a common defense ploy in most prosecutions for violation of the Dangerous Drugs Act.44 Likewise, the testimony of the other defense witness, Nida, fails to fully corroborate the appellant's testimony due to inconsistencies in their respective statements. These weaknesses, however, do not add any strength nor can they help the prosecutions cause. If the prosecution cannot establish, in the first place, the appellants guilt beyond reasonable doubt, the need for the defense to adduce evidence in its behalf in fact never arises. Thus, however weak the defense evidence might be, the prosecutions whole case still falls. To hark back to the well-entrenched dictum in criminal and constitution law: the evidence for the prosecution must stand or fall on its own weight and cannot be allowed to draw strength from the weakness of the defense. Thus, we return to the conclusion that we should acquit the accused for failure of the prosecution due the gapinduced weaknesses of its case to prove the appellants guilt beyond reasonable doubt. WHEREFORE, in light of all the foregoing, the September 11, 2006 Decision of the Court of Appeals in CA-G.R. CR-H.C. No. 01095 affirming the judgment of conviction of the Regional Trial Court, Branch 103, Quezon City is hereby REVERSED and SET ASIDE. Appellant Salvador Sanchez y Espiritu is ACQUITTED on reasonable doubt and is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause. The Director of the Bureau of Corrections is DIRECTED to IMPLEMENT this Decision and to report to this Court the action taken hereon within five (5) days from receipt.

SO ORDERED.

SECOND DIVISION G.R. No. 173804 December 10, 2008

ELPIDIO BONDAD, JR., Y BURAC, appellant, vs. PEOPLE OF THE PHILIPPINES, appellee. DECISION CARPIO MORALES, J.: Elpidio Bondad, Jr., y Burac (appellant) was charged before the Regional Trial Court (RTC) of Marikina City1 for violation of Section 5, paragraph 2(3), Article II of Republic Act No. 9165 (R.A. No. 9165) or the Comprehensive Dangerous Drugs Act of 2002, allegedly committed as follows:2 That on or about the 29th day of January 2004, in the City of Marikina, Philippines and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law, did then and there willfully, unlawfully, feloniously and knowingly sell to poseur buyer 0.02 gram of Methamphetamine

Hydrochloride (shabu) contained in one (1) heat-sealed transparent plastic sachet, a dangerous drug, in violation of the above-cited law.3 (Underscoring supplied) He was likewise charged for violation of Section 11, par. 2(3), Article II also of R.A. No. 9165, allegedly committed as follows: That on or about the 29th day of January 2004, in the City of Marikina, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, without being authorized by law to possess or otherwise use any dangerous drugs, did then and there willfully, unlawfully and feloniously have in his possession direct custody and control 0.04 gram of white crystalline substance contained in two (2) heat-sealed plastic sachets which gave positive result to the test for Methamphetamine Hydrochloride (shabu), which is a dangerous drug, in violation of the above-cited law.4 (Underscoring supplied) The cases were lodged at Branch 272 of the RTC of Marikina. From the evidence for the prosecution, particularly the testimony of its principal witness PO2 Edwin Dano and its documentary evidence, the following version is culled: At around 7:05 p.m. of January 29, 2004, while PO2 Ferdinand Brubio, PO1 Christopher Anos, and PO1 Roberto Muega were at the Station Anti Illegal Drug Special Operations Task Force (SAIDSOTF), Office of the Marikina City Police Station, PO2 Nelson Arribay arrived together with a confidential informant. The confidential informant reported, among other things, about the rampant sale of shabu in a billiard hall along Bonifacio Avenue, Barangka, Marikina City and named a certain alias "Jun" as the vendor. The Chief of the SAIDSOTF, P/Sr. Insp. Ramchrisen Haveria, Jr., at once formed a buy-bust team composed of, among others, PO2 Ramiel Soriano and PO2 Dano who was designated as the poseur-buyer. PO2 Dano was given a one hundred peso bill bearing Serial No. Q487945 to be used as buy-bust money. It was agreed that PO2 Danos removal of his cap would signal that the buy-bust was consummated. The conduct of a buy-bust operation was recorded in the police blotter and was coordinated with the Philippine Drug Enforcement Agency (PDEA) which gave it control number NOC-012904-28. The buy-bust team, together with the confidential informant, proceeded to 3 Cs billiard hall at the corner of M. Cruz St. and Bonifacio Avenue in Barangka, Marikina City. On entering the hall, the confidential informant

pointed to appellant who was then holding a cue stick beside the billiard table as the alias "Jun." The confidential informant approached appellant and talked to him. Within minutes, appellant approached PO2 Dano and asked him if he wanted to buy shabu, to which PO2 Dano answered "piso lang." Appellant at once took out a "Vicks" container from his right front pocket5 which, when opened, yielded heat-sealed plastic sachets containing substances suspected to be shabu. From the container, appellant drew out one sachet in exchange for which PO2 Dano gave the marked one hundred peso bill. At that instant, PO2 Dano removed his cap. As the back-up police officers were closing-in, PO2 Dano grabbed appellants arm, identified himself, and apprised appellant of his constitutional rights. Upon PO2 Danos order, appellant returned the buybust money, handed the "Vicks" container, and gave his name as Elpidio Burac Bondad, Jr. Still at the place of arrest, PO2 Dano placed the markings "EBB-ED BUYBUST 01/29/04" on the substance-filled sachet sold to him, and "EBBED, POS 1 and 2, 01/29/04" on the sachets that remained inside the "Vicks" container. The buy-bust team thereupon brought appellant and the seized items to the Marikina City Police Station where a memorandum dated January 29, 20046 was prepared by P/Sr. Insp. Chief Haveria, Jr., addressed to the Chief of the Eastern Police District Crime Laboratory Office, requesting for the conduct of laboratory examination on the seized items to determine the presence of dangerous drugs and their weight. PO2 Dano also requested that appellant be subjected to a drug test.7 The following day or on January 30, 2004, at 3:00 P.M., upon receipt of three sachets, a laboratory examination was conducted thereon by Police Senior Inspector Annalee R. Forro, Forensic Chemical Officer of the Eastern Police District Crime Laboratory Office, who, in Physical Science Report No. D-0094-04E8, recorded, among other things, the specimen submitted, her findings and conclusion as follows: SPECIMEN SUBMITTED: Three (3) heat-sealed transparent plastic sachets with markings marked as A through C respectively, each containing white crystalline substance with following recorded net weights and markings: A = 0.02 gram "EBB-ED BUYBUST 01/29/04" B = 0.02 gram "EBB-ED POSS 1 01/29/04"

C = 0.02 gram "EBB-ED POSS 2 01/29/04" x-x-x x-x-x x-x-x F I N D I N G S: x x x Qualitative examination conducted on the above-stated specimen gave POSITIVE result to the tests for Methamphetamine Hydrochloride, a dangerous drug. x-x-x x-x-x x-x-x C O N C L U S I O N: Specimens A through C contain Methamphetamine Hydrochloride, a dangerous drug. 9 (Italics and emphasis in the original) Denying the charges against him, appellant, a former police officer, claimed that he was framed up and gave the following version: On January 29, 2004, while he was playing inside 3 Cs billiard hall, PO2 Brubio, whom he knew was a policeman, entered the billiard hall. After greeting PO2 Brubio in Bicolano, he continued playing but PO2 Brubio suddenly handcuffed him and asked him "Sumama ka muna." Another person who was at his back pushed him out of the billiard hall in the course of which he felt PO2 Brubio reaching his (appellants) right front pocket,10 drawing him to restrain the hand of PO2 Brubio, telling him "pera ko yan!" Aware that his son was inside the billiard hall, appellant summoned and handed him his wallet containing P2,000. PO2 Brubio, however, took the wallet from his son, telling him "Huwag ka makialam dito." He was then made to board a car and taken to the Office of the SAIDSOTF at the police station. Appellants defense was corroborated by his son Christian Jeffrey C. Bondad, and Roberto U. Mata who was a "spotter" (referee) at the billiard hall at the time appellant was arrested. Finding for the prosecution, the trial court convicted appellant in both charges, disposing as follows:

WHEREFORE, foregoing premises considered, the Court finds the accused ELPIDIO BONDAD, JR. y BURAC guilty beyond reasonable doubt of the crime of Violation of Sec. 11 par. 2(3), Art. II of R.A. 9165 and is sentenced to suffer the penalty of imprisonment for a period of TWELVE (12) YEARS and ONE (1) DAY and to pay the fine of THREE HUNDRED THOUSAND PESOS (PhP300,000.00) as provided for in Sec. 11 par. 2(3), Art. II of RA 9165. The accused is likewise found guilty of the crime of Violation of Sec. 5 Art. II of RA 9165 and is sentenced to suffer the penalty of LIFE IMPRISONMENT and fine of FIVE HUNDRED THOUSAND PESOS (PhP500,00.00) pursuant to Sec. 5, Art. II of RA 9165 the methamphetamine hydrochloride (shabu) is ordered confiscated in favor of the government for proper destruction by the proper agency. SO ORDERED.11 (Underscoring supplied) By Decision of February 8, 2006,12 the Court of Appeals affirmed the trial courts decision with modification, disposing as follows: WHEREFORE, in the light of the foregoing, the appeal is DISMISSED for lack of merit. The assailed decision is AFFIRMED with the MODIFICATION that the accused-appellant is sentenced to suffer an indeterminate penalty of imprisonment of twelve (12) years and one (1) day, as minimum, to thirteen (13) years, as maximum and to pay a fine of Three Hundred Thousand Pesos (P300,000.00). SO ORDERED.13 (Underscoring supplied) Specifically with respect to the charge of possession of shabu, the appellate court held: The evidence for the prosecution fully proved beyond reasonable doubt the elements necessary to successfully prosecute a case for illegal possession of a prohibited drug, namely, (a) the accused is in possession of an item or an object identified to be a prohibited or a regulated drug, (b) such possession is not authorized by law and (c) the accused freely and consciously possessed said drug. Under Section 11, Par. 2 [3] of R.A. 9165, the mere act of possessing any dangerous drug consummates the crime. There is no doubt that the charge of illegal possession of shabu was proven beyond reasonable doubt since the accused-appellant knowingly possessed plastic sachets with white crystalline granules, without legal authority at the time he was caught during the buy-bust operation. The white crystalline granules found in his possession, upon laboratory examination, were positively identified

asmethamphetamine hydrochloride or shabu, a dangerous drug.14 (Italics in the original, underscoring supplied) Hence, the present Petition for Review on Certiorari, appellant faulting the appellate court: I. . . . IN CONVICTING [HIM] OF THE CRIME[S] CHARGED ON THE BASIS OF THE LONE TESTIMONY OF THE POSEUR BUYER AS AGAINST THE CORROBORATED STATEMENTS OF THE ACCUSED AND HIS WITNESSES; II. . . . IN ADMITTING THE EVIDENCE OF THE PROSECUTION DESPITE CLEAR VIOLATION OF SECTION 21 (1) OF R.A. 9165; III. . . . IN COMPLETELY DISREGARDING THE CLEAR EVIDENCE ON THE EXISTENCE OF IRREGULARITY IN THE PERFORMANCE OF OFFICIAL FUNCTIONS BY POLICE OFFICER/S IN THE CONDUCT OF THE BUY BUST OPERATIONS.15 (Emphasis and underscoring supplied) As the resolution of the second assignment of error is determinative of whether there is still necessity of segueing to the first and third assignments of error, it shall early on be passed upon. Appellant claims that there was failure to follow the requirements of Sec. 21 of R.A. No. 9165, hence, it compromised the integrity and evidentiary value of the allegedly seized items. Sec. 21 of R.A. No 9165 provides: Section 21. Custody and Disposition of Confiscated, Seized, and/or Surrendered Dangerous Drugs, Plant Sources of Dangerous Drugs, Controlled Precursors and Essential Chemicals, Instruments/Paraphernalia and/or Laboratory Equipment. The PDEA shall take charge and have custody of all dangerous drugs, plant sources or dangerous drugs, controlled precursors and essential chemicals, as well as instruments/paraphernalia and/or laboratory equipment so confiscated, seized and or surrendered, for proper disposition in the following manner: (1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the persons/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a

representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof; x x x (Emphasis and underscoring supplied) Appellant claims that no physical inventory and photographing of the drugs took place. A reading of the testimony of the poseur-buyer, PO2 Dano indeed confirms appellants claim, viz: Atty. Puentebella: When you brought him to the police, it was there that the items taken from him were inventoried, is it not? Witness: We did not make inventory because we simply brought the evidence confiscated. xxxx Atty. Puentebella: You also did not take photographs of the items taken from the accused? Witness: Yes, sir. Atty. Puentebella: And you know for a fact that under the new drugs law, this is a requirement for the apprehending team to do, is it not? Pros. Gapuzan: Counsel is asking for a conclusion of law. I will object. Court: Witness may answer the question.

Witness: Yes, sir. xxxx Atty. Puentebella: So it is very clear now Mr. Witness that at the time you apprehended the accused, you did not make an inventory in the presence of the accused nor you did not [sic] make a photograph of the items seized in the presence of the accused, an elective official, a representative from the Department of Justice, or the media, thats very clear? Witness: Yes, sir. Atty. Puentebella: Since you did not make any inventory, it follows that you did not require them to sign your inventory as required by law? Witness:

accused.17(Citation omitted, emphasis, italics and underscoring supplied) The Courts pronouncement in Pringas is based on the provision of Section 21(a) of the Implementing Rules and Regulations18 of R.A. No. 9165, viz: x x x Provided, further, that non-compliance with these requirements under justifiable grounds, as long as the integrity and evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items; (Emphasis and underscoring supplied) In the present case, by PO2 Danos claim, he immediately marked the seized items which were brought to the Crime Laboratory for examination. By his admission, however, he did not conduct an inventory of the items seized. Worse, no photograph of the items was taken. There was thus failure to faithfully follow the requirements of the law. Parenthetically, unlike in Pringas, the defense in the present case questioned early on, during the cross examination of PO2 Dano, the failure of the apprehending officers to comply with the inventory and photographing requirements of Section 21 of R.A. No. 916519, despite PO2 Danos awareness of such requirements. And the defense raised it again during the offer of evidence by the prosecution, thus: Atty. Puentebella: xxxx

Yes, sir.

16

(Emphasis and underscoring supplied) Exhibits "B" which is the brown envelope, "B-1", "B-2" and "B-3" are objected to for being product of irregular functions of police and therefore fruit of poisonous thinking [sic] and they are not admissible and they were not photographed in the presence of the accused as provided for by Sec. 21, par.1, R.A. 9165;20(emphasis supplied) IN FINE, as the failure to comply with the aforesaid requirements of the law compromised the identity of the items seized, which is the corpus delicti of each of the crimes charged against appellant,21 his acquittal is in order. This leaves it unnecessary to still dwell on the first and third assignments of error.

Clearly then, the apprehending police officers failed to comply with the above-quoted provision of Section 21 of R.A. No. 9165. People v. Pringas holds, however: Non-compliance by the apprehending/buy-bust team with Section 21 is not fatal as long as there isjustifiable ground therefor, and as long as the integrity and the evidentiary value of the confiscated/seized items, are properly preserved by the apprehending officer/team. Its non-compliance will not render an accused's arrest illegal or the items seized/confiscated from him inadmissible. What is of utmost importance is the preservation of the integrity and the evidentiary value of the seized items, as the same would be utilized in the determination of the guilt or innocence of the

WHEREFORE, the Petition is GRANTED. The assailed decision is REVERSED and SET ASIDE and appellant, Elpidio Bondad Jr., y Burac, is ACQUITED of the crimes charged. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City who is directed to cause the immediate release of appellant unless he is being lawfully held for another cause, and to inform this Court of action taken within ten (10) days from notice hereof. SO ORDERED.

EN BANC G.R. No. 150224 May 19, 2004

PEOPLE OF THE PHILIPPINES, appellee, vs. JOEL YATAR alias "KAWIT", appellant.

DECISION PER CURIAM: On automatic review is a Decision of the Regional Trial Court of Bulanao, Tabuk, Kalinga, Branch 25, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide, and ordering him to pay the heirs of the victim, Kathylyn D. Uba, civil indemnity in the amount of P75,000.00, moral damages in the amount of P200,000.00, exemplary damages in the amount of P50,000.00, actual damages in the amount of P186,410.00, or total damages amounting to P511,410.00, and costs of litigation.1 Appellant was charged with Rape with Homicide under the following Information: That on or about the afternoon of June 30, 1998 at Liwan West, Rizal, Kalinga, and within the jurisdiction of this Honorable Court, the accused, in order to have carnal knowledge of a certain KATHYLYN D. UBA, did then and there wilfully, unlawfully, and feloniously, and with use of a bladed weapon stab the latter inflicting upon her fatal injuries resulting in the death of the victim, and on the occasion or by reason thereof, accused, wilfully, unlawfully and feloniously, and by means of force and violence had carnal knowledge of said Kathlyn D. Uba against her will. CONTRARY TO LAW.2 The facts are: On June 30, 1998, at 8:30 a.m., Judilyn Pas-a and her first cousin, seventeen year old Kathylyn Uba, were on the ground floor of the house of their grandmother, Isabel Dawang, in Liwan West, Rizal, Kalinga. They were talking about the letter sent by their aunt, Luz Yatar, to her husband, appellant Joel Yatar, through Kathylyns friend, Cecil Casingan. Kathylyn handed the letter to appellant earlier that morning.3 At 9:00 a.m. of the same day, Judilyn and her husband, together with Isabel Dawang, left for their farm in Nagbitayan some two kilometers away. Before Judilyn and her husband departed, Kathylyn told Judilyn that she intended to go to Tuguegarao, but in the event she would not be able to leave, she would just stay home and wash her clothes or go to the house of their aunt, Anita Wania. Kathylyn was left alone in the house.4

Later, at 10:00 a.m., Anita Wania and fifteen year old Beverly Deneng stopped by the house of Isabel. They saw appellant at the back of the house. They went inside the house through the back door of the kitchen to have a drink of water. Anita asked appellant what he was doing there, and he replied that he was getting lumber to bring to the house of his mother.5 At 12:30 p.m., while Judilyn was on her way home from Nagbitayan, she saw appellant descend the ladder from the second floor of the house of Isabel Dawang and run towards the back of the house.6 She later noticed appellant, who was wearing a white shirt with collar and black pants, pacing back and forth at the back of the house. She did not find this unusual as appellant and his wife used to live in the house of Isabel Dawang.7 At 1:30 p.m., Judilyn again saw appellant when he called her near her house. This time, he was wearing a black shirt without collar and blue pants. Appellant told her that he would not be getting the lumber he had stacked, and that Isabel could use it. She noticed that appellants eyes were "reddish and sharp." Appellant asked her where her husband was as he had something important to tell him. Judilyns husband then arrived and appellant immediately left and went towards the back of the house of Isabel.8 In the evening of the same day, Isabel Dawang arrived home and found that the lights in her house were off. She called out for her granddaughter, Kathylyn Uba. The door to the ground floor was open. She noticed that the water container she asked Kathylyn to fill up earlier that day was still empty. She went up the ladder to the second floor of the house to see if Kathylyn was upstairs. She found that the door was tied with a rope, so she went down to get a knife. While she groped in the dark, she felt a lifeless body that was cold and rigid.9 Isabel moved her hand throughout the entire body. She found out that it was the naked body of her granddaughter, Kathylyn. She called for help. Judilyn and her husband arrived. Isabel was given a flashlight by Judilyn. She focused the beam and saw Kathylyn sprawled on the floor naked, with her intestines protruding out of her stomach. Meanwhile, neighbors had arrived to offer assistance. A daughter of Isabel, Cion, called the police.10 At 9:00 that evening, SP04 Melchor Faniswa received a report that a dead woman was found in Isabel Dawangs house. Together with fellow police officers, Faniswa went to the house and found the naked body of Kathylyn Uba with multiple stab wounds. The people in the vicinity informed the police officers that appellant was seen going down the ladder of the house of Isabel Dawang at approximately 12:30 p.m.

The police discovered the victims panties, brassiere, denim pants, bag and sandals beside her naked cadaver at the scene of the crime, and they found a dirty white shirt splattered with blood within 50 meters from the house of Isabel. When questioned by the police authorities, appellant denied any knowledge of Kathylynss death,11 however, he was placed under police custody. On July 3, 1998, appellant asked the police officers if he could relieve himself. Police Officer Cesar Abagan accompanied him to the toilet around seven to ten meters away from the police station. They suddenly heard someone shout in the Ilocano dialect, "Nagtaray!" (Hes running away!). Police Officer Orlando Manuel exited through the gate of the Police Station and saw appellant running away. Appellant was approximately 70 meters away from the station when Police Officer Abagan recaptured him.12 He was charged with Rape with Homicide. When he was arraigned on July 21, 1998, appellant pleaded "not guilty." After trial, appellant was convicted of the crime of Rape with Homicide, defined and penalized under Article 266-A of the Revised Penal Code, as amended by R.A. 8353, otherwise known as the Anti-Rape Law of 1997, and was accordingly, sentenced to Death. Hence, this automatic review pursuant to Article 47 of the Revised Penal Code, as amended. In his Brief, appellant assigns the following errors: I THE TRIAL COURT GRAVELY ERRED IN GIVING MUCH WEIGHT TO THE EVIDENCE PRESENTED BY THE PROSECUTION NOTWITHSTANDING THEIR DOUBTFULNESS. II THE TRIAL COURT SERIOUSLY ERRED IN NOT ACQUITTING THE ACCUSED-APPELLANT OF THE SERIOUS CRIME CHARGED DUE TO REASONABLE DOUBT. Appellants contentions are unmeritorious. The issue regarding the credibility of the prosecution witnesses should be resolved against appellant. This Court will not interfere with the judgment of the trial court in determining the credibility of witnesses unless there appears in the record some fact or circumstance of weight and influence which has been overlooked or the significance of which has been misinterpreted.13 Well-entrenched is the rule that the findings of the trial

court on credibility of witnesses are entitled to great weight on appeal unless cogent reasons are presented necessitating a reexamination if not the disturbance of the same; the reason being that the former is in a better and unique position of hearing first hand the witnesses and observing their deportment, conduct and attitude.14 Absent any showing that the trial judge overlooked, misunderstood, or misapplied some facts or circumstances of weight which would affect the result of the case, the trial judges assessment of credibility deserves the appellate courts highest respect.15 Where there is nothing to show that the witnesses for the prosecution were actuated by improper motive, their testimonies are entitled to full faith and credit.16 The weight of the prosecutions evidence must be appreciated in light of the well-settled rule which provides that an accused can be convicted even if no eyewitness is available, as long as sufficient circumstantial evidence is presented by the prosecution to prove beyond doubt that the accused committed the crime.17 Reference to the records will show that a total of eleven (11) wounds, six (6) stab and five (5) incised, were found on the victims abdomen and back, causing a portion of her small intestines to spill out of her body.18 Rigor mortisof the vicitms body was complete when Dr. Bartolo examined the victim at 9:00 a.m. on July 1, 1998. According to him, the time of death may be approximated from between nine (9) to twelve (12) hours prior to the completion ofrigor mortis.19 In other words, the estimated time of death was sometime between 9:00 a.m. to 12:00 p.m. on June 30, 1998. This was within the timeframe within which the lone presence of appellant lurking in the house of Isabel Dawang was testified to by witnesses. It should also be noted that, although the Postmortem Report by the attending physician, Dr. Pej Evan C. Bartolo, indicates that no hymenal lacerations, contusions or hematoma were noted on the victim,20 Dr. Bartolo discovered the presence of semen in the vaginal canal of the victim. During his testimony, Dr. Bartolo stated that the introduction of semen into the vaginal canal could only be done through sexual intercourse with the victim.21 In addition, it is apparent from the pictures submitted by the prosecution that the sexual violation of the victim was manifested by a bruise and some swelling in her right forearm indicating resistance to the appellants assault on her virtue.22 Significantly, subsequent testing showed that the Deoxyribonucleic acid (DNA) of the sperm specimen from the vagina of the victim was identical the semen to be that of appellants gene type. DNA is a molecule that encodes the genetic information in all living organisms.23 A persons DNA is the same in each cell and it does not change throughout a persons lifetime; the DNA in a persons blood is the same as

the DNA found in his saliva, sweat, bone, the root and shaft of hair, earwax, mucus, urine, skin tissue, and vaginal and rectal cells.24 Most importantly, because of polymorphisms in human genetic structure, no two individuals have the same DNA, with the notable exception of identical twins.25 DNA print or identification technology has been advanced as a uniquely effective means to link a suspect to a crime, or to exonerate a wrongly accused suspect, where biological evidence has been left. For purposes of criminal investigation, DNA identification is a fertile source of both inculpatory and exculpatory evidence. It can assist immensely in effecting a more accurate account of the crime committed, efficiently facilitating the conviction of the guilty, securing the acquittal of the innocent, and ensuring the proper administration of justice in every case. DNA evidence collected from a crime scene can link a suspect to a crime or eliminate one from suspicion in the same principle as fingerprints are used.26 Incidents involving sexual assault would leave biological evidence such as hair, skin tissue, semen, blood, or saliva which can be left on the victims body or at the crime scene. Hair and fiber from clothing, carpets, bedding, or furniture could also be transferred to the victims body during the assault.27 Forensic DNA evidence is helpful in proving that there was physical contact between an assailant and a victim. If properly collected from the victim, crime scene or assailant, DNA can be compared with known samples to place the suspect at the scene of the crime.28 The U.P. National Science Research Institute (NSRI), which conducted the DNA tests in this case, used the Polymerase chain reaction (PCR) amplification method by Short Tandem Repeat (STR) analysis. With PCR testing, tiny amounts of a specific DNA sequence can be copied exponentially within hours. Thus, getting sufficient DNA for analysis has become much easier since it became possible to reliably amplify small samples using the PCR method. In assessing the probative value of DNA evidence, courts should consider, inter alia, the following factors: how the samples were collected, how they were handled, the possibility of contamination of the samples, the procedure followed in analyzing the samples, whether the proper standards and procedures were followed in conducting the tests, and the qualification of the analyst who conducted the tests.29 In the case at bar, Dr. Maria Corazon Abogado de Ungria was duly qualified by the prosecution as an expert witness on DNA print or identification techniques.30 Based on Dr. de Ungrias testimony, it was determined that the gene type and DNA profile of appellant are identical to that of the extracts subject of examination.31 The blood sample taken from the appellant showed that he was of the following gene types: vWA 15/19, TH01 7/8, DHFRP2 9/10 and CSF1PO 10/11, which are identical with semen taken

from the victims vaginal canal.32 Verily, a DNA match exists between the semen found in the victim and the blood sample given by the appellant in open court during the course of the trial. Admittedly, we are just beginning to integrate these advances in science and technology in the Philippine criminal justice system, so we must be cautious as we traverse these relatively uncharted waters. Fortunately, we can benefit from the wealth of persuasive jurisprudence that has developed in other jurisdictions. Specifically, the prevailing doctrine in the U.S. has proven instructive. In Daubert v. Merrell Dow,33 it was ruled that pertinent evidence based on scientifically valid principles could be used as long as it was relevant and reliable. Judges, under Daubert, were allowed greater discretion over which testimony they would allow at trial, including the introduction of new kinds of scientific techniques. DNA typing is one such novel procedure. Under Philippine law, evidence is relevant when it relates directly to a fact in issue as to induce belief in its existence or non-existence.34 Applying the Daubert test to the case at bar, the DNA evidence obtained through PCR testing and utilizing STR analysis, and which was appreciated by the court a quo is relevant and reliable since it is reasonably based on scientifically valid principles of human genetics and molecular biology. Independently of the physical evidence of appellants semen found in the victims vaginal canal, the trial court appreciated the following circumstantial evidence as being sufficient to sustain a conviction beyond reasonable doubt: (1) Appellant and his wife were living in the house of Isabel Dawang together with the victim, Kathylyn Uba; (2) In June 1998, appellants wife left the house because of their frequent quarrels; (3) Appellant received from the victim, Kathylyn Uba, a letter from his estranged wife in the early morning on June 30, 1998; (4) Appellant was seen by Apolonia Wania and Beverly Denneng at 1:00 p.m. of June 30, 1998 near the kitchen of the house of Isabel Dawang, acting strangely and wearing a dirty white shirt with collar; (5) Judilyn Pas-a saw appellant going down the ladder of the house of Isabel at 12:30 p.m., wearing a dirty white shirt, and again at 1:30 p.m., this time wearing a black shirt; (6) Appellant hurriedly left when the husband of Judilyn Pas-a was approaching; (7) Salmalina Tandagan saw appellant in a dirty white shirt coming down the ladder of the house of Isabel on the day Kathylyn Uba was found dead; (8) The door leading to the second floor of the house of Isabel Dawang was tied by a rope; (9) The victim, Kathylyn Uba, lay naked in a pool of blood with her intestines protruding from her body on the second floor of the house of Isabel Dawang, with her stained pants, bra, underwear and shoes scattered along the periphery; (10) Laboratory examination revealed sperm in the victims vagina (Exhibit "H" and "J"); (11) The stained or dirty white shirt found in the crime scene was found to be positive with blood; (12) DNA of slide, Exhibit "J" and "H", compared with the DNA profile of the appellant

are identical; and (13) Appellant escaped two days after he was detained but was subsequently apprehended, such flight being indicative of guilt.35 Circumstantial evidence, to be sufficient to warrant a conviction, must form an unbroken chain which leads to a fair and reasonable conclusion that the accused, to the exclusion of others, is the perpetrator of the crime. To determine whether there is sufficient circumstantial evidence, three requisites must concur: (1) there is more than one circumstance; (2) facts on which the inferences are derived are proven; and (3) the combination of all the circumstances is such as to produce a conviction beyond reasonable doubt.36 In an attempt to exclude the DNA evidence, the appellant contends that the blood sample taken from him as well as the DNA tests were conducted in violation of his right to remain silent as well as his right against selfincrimination under Secs. 12 and 17 of Art. III of the Constitution. This contention is untenable. The kernel of the right is not against all compulsion, but against testimonial compulsion.37 The right against selfincrimination is simply against the legal process of extracting from the lips of the accused an admission of guilt. It does not apply where the evidence sought to be excluded is not an incrimination but as part of object evidence. We ruled in People v. Rondero38 that although accused-appellant insisted that hair samples were forcibly taken from him and submitted to the National Bureau of Investigation for forensic examination, the hair samples may be admitted in evidence against him, for what is proscribed is the use of testimonial compulsion or any evidence communicative in nature acquired from the accused under duress. Hence, a person may be compelled to submit to fingerprinting, photographing, paraffin, blood and DNA, as there is no testimonial compulsion involved. Under People v. Gallarde,39 where immediately after the incident, the police authorities took pictures of the accused without the presence of counsel, we ruled that there was no violation of the right against self-incrimination. The accused may be compelled to submit to a physical examination to determine his involvement in an offense of which he is accused. It must also be noted that appellant in this case submitted himself for blood sampling which was conducted in open court on March 30, 2000, in the presence of counsel. Appellant further argues that the DNA tests conducted by the prosecution against him are unconstitutional on the ground that resort thereto is tantamount to the application of an ex-post facto law.

This argument is specious. No ex-post facto law is involved in the case at bar. The science of DNA typing involves the admissibility, relevance and reliability of the evidence obtained under the Rules of Court. Whereas an ex-post facto law refers primarily to a question of law, DNA profiling requires a factual determination of the probative weight of the evidence presented. Appellants twin defense of denial and alibi cannot be sustained. The forensic DNA evidence and bloodied shirt, notwithstanding the eyewitness accounts of his presence at Isabel Dawangs house during the time when the crime was committed, undeniably link him to the June 30, 1998 incident. Appellant did not demonstrate with clear and convincing evidence an impossibility to be in two places at the same time, especially in this case where the two places are located in the same barangay.40 He lives within a one hundred (100) meter radius from the scene of the crime, and requires a mere five minute walk to reach one house from the other. This fact severely weakens hisalibi. As to the second assignment of error, appellant asserts that the court a quo committed reversible error in convicting him of the crime charged. He alleges that he should be acquitted on reasonable doubt. Appellants assertion cannot be sustained. Generally, courts should only consider and rely upon duly established evidence and never on mere conjectures or suppositions. The legal relevancy of evidence denotes "something more than a minimum of probative value," suggesting that such evidentiary relevance must contain a "plus value."41 This may be necessary to preclude the trial court from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty conclusions. Evidence without "plus value" may be logically relevant but not legally sufficient to convict. It is incumbent upon the trial court to balance the probative value of such evidence against the likely harm that would result from its admission. The judgment in a criminal case can be upheld only when there is relevant evidence from which the court can properly find or infer that the accused is guilty beyond reasonable doubt. Proof beyond reasonable doubt requires moral certainty of guilt in order to sustain a conviction. Moral certainty is that degree of certainty that convinces and directs the understanding and satisfies the reason and judgment of those who are bound to act conscientiously upon it. It is certainty beyond reasonable doubt.42 This requires that the circumstances, taken together, should be of a conclusive nature and tendency; leading, on the whole, to a satisfactory conclusion that the accused, and no one else, committed the offense charged.43 In view of the totality of evidence appreciated thus far, we rule that the present case passes the test of moral certainty.

However, as a matter of procedure, and for the purpose of meeting the requirement of proof beyond reasonable doubt, motive is essential for conviction when there is doubt as to the identity of the culprit.44 Pertinently, it must be noted that Judilyn Pas-a, first cousin of the victim, testified that she last saw the victim alive in the morning of June 30, 1998 at the house of Isabel Dawang.45 She witnessed the appellant running down the stairs of Isabels house and proceeding to the back of the same house.46 She also testified that a few days before the victim was raped and killed, the latter revealed to her that "Joel Yatar attempted to rape her after she came from the school."47 The victim told Judilyn about the incident or attempt of the appellant to rape her five days before her naked and violated body was found dead in her grandmothers house on June 25, 1998.48 In addition, Judilyn also testified that when her auntie Luz Dawang Yatar, wife of appellant, separated from her husband, "this Joel Yatar threatened to kill our family."49 According to Judilyn, who was personally present during an argument between her aunt and the appellant, the exact words uttered by appellant to his wife in the Ilocano dialect was, "If you leave me, I will kill all your family and your relatives x x x."50 These statements were not contradicted by appellant. Thus, appellants motive to sexually assault and kill the victim was evident in the instant case. It is a rule in criminal law that motive, being a state of mind, is established by the testimony of witnesses on the acts or statements of the accused before or immediately after the commission of the offense, deeds or words that may express it or from which his motive or reason for committing it may be inferred.51 Accordingly, we are convinced that the appellant is guilty beyond reasonable doubt of the special complex crime of rape with homicide. Appellant sexually assaulted Kathylyn Uba, and by reason or on the occasion thereof, in order to conceal his lustful deed, permanently sealed the victims lips by stabbing her repeatedly, thereby causing her untimely demise. The following are the elements constitutive of rape with homicide: (1) the appellant had carnal knowledge of a woman; (2) carnal knowledge of a woman was achieved by means of force, threat or intimidation; and (3) by reason or on the occasion of such carnal knowledge by means of force, threat or intimidation, appellant killed the woman.52 However, in rape committed by close kin, such as the victims father, step-father, uncle, or the common-law spouse of her mother, it is not necessary that actual force or intimidation be employed.53 Moral influence or ascendancy takes the place of violence and intimidation.54 The fact that the victims hymen is intact does not negate a finding that rape was committed as mere entry by the penis into the lips of the female genital organ, even without rupture or laceration of the hymen, suffices for conviction of rape.55 The strength and dilatability of the hymen are invariable; it may be so elastic as to stretch

without laceration during intercourse. Absence of hymenal lacerations does not disprove sexual abuse especially when the victim is of tender age.56 In the case at bar, appellant is the husband of the victims aunt. He is seven years older than the victim Kathylyn Uba. Before he and his wife separated, appellant lived in the house of his mother-in-law, together with the victim and his wife. After the separation, appellant moved to the house of his parents, approximately one hundred (100) meters from his mother-in-laws house. Being a relative by affinity within the third civil degree, he is deemed in legal contemplation to have moral ascendancy over the victim. Under Article 266-B of the Revised Penal Code, the penalty of death is imposed when by reason or on the occasion of the rape, homicide is committed. Although three (3) Justices of this Court maintain their position that R.A. 7659 is unconstitutional insofar as it prescribes the death penalty, they nevertheless submit to the ruling of the majority that the law is not unconstitutional, and that the death penalty can be lawfully imposed in the case at bar. As to damages, civil indemnity ex delicto of P100,000.00,57 actual damages incurred by the family of the victim that have been proved at the trial amounting to P93,190.00,58 and moral damages of P75,000.0059 should be awarded in the light of prevailing law and jurisprudence. Exemplary damages cannot be awarded as part of the civil liability since the crime was not committed with one or more aggravating circumstances.60 WHEREFORE, in view of the foregoing, the Decision of the RTC of Bulanao, Tabuk, Kalinga, Branch 25 in Criminal Case No. 35-98, sentencing appellant Joel Yatar alias "Kawit" to Death for the special complex crime of Rape with Homicide is AFFIRMED with the MODIFICATION that he be ORDERED to pay the family of the victim Kathylyn Uba civil indemnity ex delicto in the amount of P100,000.00, P93,190.00 in actual damages and P75,000.00 in moral damages. The award of exemplary damages is DELETED. Upon the finality of this Decision and in accordance with Art. 83 of the Revised Penal Code, as amended by Sec. 25 of Rep. Act No. 7659, let the records of this case be forthwith forwarded to the President of the Philippines for the possible exercise of the pardoning power. Costs de oficio.SO ORDERED. EN BANC [G.R. No. L-14257. July 31, 1959.]

THE PEOPLE OF THE PHILIPPINES, petitioner, vs. HON. BIENVENIDO A. TAN as Judge of the Court of First Instance of Manila, Br. XIII, PACITA MADRIGALGONZALES, ANGELITA CENTENO, JULIA CARPIO, CALIXTO HERMOSA, and CRISPULA R. PAGARAN alias PULA, respondents. Assistant Fiscal Apolinar Tolentino, Prosecutors Norberto J. Quisumbing and Antonio Villegas for petitioner. Gonzalo W. Gonzales and Bausa, Ampil & Suarez for respondent Pacita M. Gonzales. Estanislao A. Fernandez for the other respondents. SYLLABUS 1. EVIDENCE; ADMISSIBILITY OF DUPLICATE ORIGINAL WITHOUT THE PRODUCTION OF ORIGINAL. If the documents or papers to be introduced in evidence were produced by the use of carbon sheets, and which thereby produced a facsimile of the originals including the figures and the signatures on the originals, they are regarded as duplicate originals and may be introduced as such, even without accounting for the non-production of the other originals. DECISION LABRADOR, J p: In Criminal Case No. 36885 of the Court of First Instance of Manila, respondents Pacita Madrigal-Gonzales and others are charged with the crime of falsification of public documents, in their capacities as public officials and employees, by having made it appear that certain relief supplies and/or merchandise were purchased by Pacita Madrigal-Gonzales for distribution to calamity indigents or sufferers, in such quantities and at such prices and from such business establishments or persons as are made to appear in the said public documents, when in fact and in truth, no such distributions of such relief and supplies as valued and supposedly purchased by said Pacita Madrigal Gonzalez in the public and official documents had ever been made. In order to prove the charge of falsification, the prosecution presented to a witness a booklet of receipts, which was marked Exh. "D", containing blue invoices numbered 101301 to 101400 of the Metro Drug Corporation, Magallanes corner Jakosalem, Cebu City. The booklet contained the triplicate copies, and according to said witness the original invoices were

sent to the Manila office of the company, the duplicates to the customers, so that the triplicate copies remained in the booklet. Witness further explained that in preparing receipts for sales, two carbons were used between the three sheets, the original, the duplicate and the triplicate, so that the duplicates and the triplicates were filled out by the used of the carbons in the course of the preparation and signing of the originals. The witness giving the testimony was the salesman who issued the triplicates marked as Exh, "D-1". As the witness was explaining the figures or words appearing on the triplicates, Hon. Bienvenido M. Tan, then presiding in the court below, interrupted the proceeding holding that the triplicates are not admissible unless it is first proven that the originals were lost and can not be produced. Said the court: "Triplicates are evidence when it is proven first that the original is lost and cannot be produced. But as the witness has alleged that the original is in the Manila Office, why not produce the original?" Another witness, accountant of the Metro Drug Corporation in Manila, was also called by the prosecution to testify. He declared that sales in the provinces were reported to the Manila office of the Metro Drug Corporation, and that the originals of the sales invoices are transmitted to the main office in support of cash journal sheets, but that the original practice of keeping the original white copies no longer prevails as the originals are given to the customers, while only the duplicate or pink copies are submitted to the central office in Manila. Testifying on certain cash journal sheets, Exhs, "A", "A-1", to "A-10" he further declared that he received these from the Metro Drug Corporation, Cebu branch, and that the said cash journal sheets contained the sales made in the Cebu branch. After the cross-examination of this last witness, the prosecution again went back to the identification of the triplicate invoice, Exh. "D-1", already above referred to. It was at this stage that the judge below told the prosecution that the law applicable is Section 46, Rule 123 of the Rules of Court, which requires the production of the originals. In response to the above ruling, the special prosecutor claimed that the evidence of the prosecution the originals on account of their loss. In view of the above circumstances, the prosecution announced its intention to file a petition for certiorari against the ruling of the court below to which the court below agreed. Hence this petition.

It is alleged that the invoice sought to be introduced, which were produced by the use of carbon sheets, and which thereby produced a facsimile of the regarded as duplicate originals and may be introduced as such, even without accounting for the non-production of the originals. The decision of the question is far from difficult. The admissibility of duplicates or triplicates has long been a settled question and we need not elaborate on the reasons for the rule. This matter has received consideration from the foremost commentator on the Rules of Court thus: "When carbon sheets are inserted between two or more sheets of writing paper so that the writing of a contract upon the outside sheet, including the signature of the party to be charged thereby, produces facsimile upon the sheets beneath, such signature being thus reproduced by the same stroke of the pen which made the surface or exposed impression, all of the sheets so written on are regarded as duplicate originals and either of them may be introduced in evidence as such without accounting for the nonproduction of the others.' (Moran, 1952 ed., p. 444.) It has also been decided in favor of the petitioner by Us in the case of People vs. Quinones, 44 Off. Gaz., No. 5, 1520, 1525, thus: "It is argued in the second assignment of error that the confession Exhibit B is not admissible because it is merely a carbon copy. The said confession Exhibit B, being carbon copy of the original and bearing as it does the signature of the appellant, is admissible in evidence and possess all the probative value of the original, and the same does not require an accounting for the non-production of the original. (Sec. 47, Rule 123, Rules of Court)". Two principal authors on the law on evidence have sustained the theory of the admissibility of duplicate originals, as follows: "SEC. 386. . . . the best evidence rule is that rule which requires the highest grade of evidence obtainable to prove a disputed fact p. 616. A "duplicate sales slip' (People vs. Stone, 349 Ill. 52, 181 N. E. 648) has been held to be primary evidence, p. 616. "SEC. 420. Duplicate originals. Where letters are produced by mechanical means and, concurrently with the original, duplicate are produced, as by placing carbon paper between sheets of writing on the exposed surface at the same time, all are duplicate originals, and any one of them may be introduced in evidence without accounting for the nonproduction of the other. Citing International Harvester Co. vs. Elfstrom,

101 Minn. 263, 112 N. W. 252. See also 12 L.R.A. (N.S.) 343, People of Hauke, 335 Ill. 217, 167 N. E. 1; State vs. Keife, 165 La. 47, 115 So. 363; Taylor vs. Com. 117 Va. 909, 85 S. E. 499." (Wharton's Criminal Evidence, Vol. I, p. 661). "SEC. 100. Carbon copies, however, when made at the same time and on the same machine as the original, are duplicate originals, and these have been held to be as much primary evidence as the originals. Citing U. S. vs. Manton, 107 Fe. (2d) 834, Cert. denied 309 U. S. 664, 84 L. ed. 1012; O'Shea vs. U. S., 93 F. (2d), 169; Leonard vs. State, 36 Ala. App. 397, 58 So. (2d) 138; State vs. Lee, 173 La. 770, 138 So. 662; Newman vs. State 65 Ga. App. 288, 16 S. E. (2d) 87." (Underhill's Criminal Evidence, 5th ed., Vol. I, p. 168.) We find that the ruling of the court below to the effect that the triplicates formed by the used of carbon papers are not admissible in evidence, without accounting first for the loss of the originals is incorrect and must be reversed. The court below is hereby ordered to proceed in the trial of the case in accordance with this ruling. No costs. So ordered. Bengzon, Padilla, Montemayor, Bautista Angelo, Concepcion, Endencia and Barrera, JJ., concur.

SECOND DIVISION [G.R. No. 173480. February 25, 2009.] PEOPLE OF THE PHILIPPINES, plaintiff-appellee, vs. RUIZ GARCIA y RUIZ, accused-appellant. DECISION BRION, J p: We review in this Decision the conviction of accused-appellant Ruiz Garcia y Ruiz (Ruiz) by the Court of Appeals (CA) in its Decision of May 10, 2006 1 for violation of Section 5, Article II of Republic Act (R.A.) No. 9165 or the Comprehensive Dangerous Drugs Act of 2002. The assailed CA decision fully affirmed the decision of the Regional Trial Court (RTC), 2 Branch 72, Malabon City. EScIAa Ruiz was formally charged and pleaded "not guilty" under an Information that reads: That on or about the 27th day of February 2003, in the Municipality of Navotas, Metro Manila, Philippines, and within the jurisdiction of this Honorable Court, the above-named accused, being a private person, and without authority of law, did then and there, willfully, unlawfully, and feloniously sell and deliver for consideration in the amount of P200.00 to poseur-buyer one (1) piece of printed paper with markings 'RGR-1' containing the following: one (1) small brick of dried suspected Marijuana fruiting tops with a net weight 11.02 gram[s] and Thirteen (13) small white paper[s] with markings 'RGRRPI' through 'RGR-RP13', respectively, which substance, when subjected to chemistry examination gave positive result for Marijuana, a dangerous drug. 3 2009jur In the pre-trial conference that followed, his counsel admitted the following: (1) the identity of Ruiz as the accused in the case; (2) the jurisdiction of the RTC; and (3) Ruiz' lack of authority to possess or sell shabu. 4 The defense counsel also manifested that admissions could be made in the course of the trial concerning the manner and nature of the testimony of the forensic chemist. 5

The prosecution presented a single witness, PO1 Samuel Garcia (PO1 Garcia), who, as poseur-buyer, testified that Ruiz' arrest was made pursuant to a legitimate buy-bust operation where Ruiz sold him marijuana. The parties dispensed with the testimony of the forensic chemist, Jesse Abadilla Dela Rosa, after they entered into stipulations concerning the manner and nature of his testimony. 6 The prosecution also submitted the following evidence: Exhibit "A" - INFOREP dated February 7, 2003 written by

Police Senior Superintendent Oscar F. Valenzuela; Exhibit "B" - the Dispatch Order dated February 27, 2003; - the photocopy of the recovered

Exhibit "C-1" and "C-2" marked money; Exhibit "D"

- the Pre-Operation Report dated February 27,

2003 prepared by PO2 Geoffrey Huertas; Exhibit "E" - the Sinumpaang Salaysay of PO1 Samuel

Sonny Garcia; Exhibit "F" Exhibit "H" - the corpus delicti; - the Request for Laboratory Examination dated

February 28, 2003 submitted by Ferdinand Lavadia Balgoa, Police Inspector Chief SDEU and; Exhibit "G" - the Physical Sciences Report No. D-250-03

prepared by forensic chemist Jesse Abadilla Dela Rosa.

The defense relied solely on the testimony of Ruiz who claimed he was the victim of a police frame-up and extortion. The RTC summarized the prosecution's version of events as follows: On February 27, 2003, at around 2:45 p.m., PO1 Samuel Garcia was with a confidential informer and two other policemen at the back of San Roque Church, Navotas, Metro Manila, waiting for the accused with whom the confidential informer arranged for him (Garcia) to buy marijuana. There were prior Informations [sic] from Camp Crame and the NPDO about the selling of marijuana . . . For this reason, Garcia got in touch with the confidential informer whom [sic] he learned could buy marijuana from the accused. EHTISC It did not take long after the arrival of Garcia and the others at the area of operation for the accused to arrive on board a red scooter. Garcia told the accused that he will buy P200.00 worth of marijuana, as agreed upon between the confidential informer and the accused. The accused in turn gave Garcia the marijuana wrapped in a yellow page of the PLDT directory. Garcia verified the contents thereof and thereafter gave the P200.00, consisting of two P100.00 bills earlier given for him to use as buy-bust money . . . whose serial numbers were listed in the dispatch order . . . Garcia then gave the signal to his companions for them to approach. He also arrested the accused whom he told of his rights and brought him to a lying-in clinic and then to the police headquarters.2009jur According to PO1 Garcia, after the arrest, they brought Ruiz to the DEU 7 office for investigation. He (PO1 Garcia) turned over the seized items to the investigator, who then placed markings on the wrapper. 8 The seized items were thereafter sent to the PNP Crime Laboratory for examination; they tested positive for marijuana. 9 The version of the defense, as summarized by the RTC, is as follows: Accused Ruiz Garcia y Ruiz, on the other hand, maintained that he was riding on a hopper on his way [home] to his wife at Daang Hari, Navotas, Metro Manila, when he saw a jeep with policemen on board. A policeman named Balais stopped the accused and asked

for the papers of the hopper which he, at the same time, searched with nothing illegal found inside its compartment [sic]. The accused then heard someone remarked "ito pala si Ruiz", and he was told to go along with the policemen, who initially brought him to the lying-in clinic, and then to the police headquarters where he was asked to make "tubos" or to "ransom" the hopper; Garcia [Ruiz] was not able to do so because he cannot afford what the policemen were demanding. As a consequence, he was detained and charged in this case which he protested, as nothing was confiscated from him. DEaCSA Ruiz claimed that the case was a trumped-up charge made by the police to extort money from him. 10 In making this claim, he admitted that he did not know PO1 Garcia and that he saw him for the first when he was arrested. 11 He insisted that he knew a certain Balais who arrested suspected pushers/users in their place. 12 The prosecution and the defense thereafter entered into stipulations on the substance of the rebuttal and sur-rebuttal testimonies of PO1 Garcia and Ruiz, which were mainly reiterations of their earlier testimonies. 13 In its Decision of July 27, 2004, the RTC found Ruiz guilty beyond reasonable doubt of the crime charged, and sentenced him to life imprisonment and to pay a fine of P500,000.00 and costs. 14 The CA, on appeal, fully affirmed the RTC's decision. 15 In the present appeal before us, Ruiz faults the CA for believing the testimony of the lone prosecution witness, and for convicting him despite the insufficiency of supporting evidence. He observes that: (a) PO1 Garcia's motive was to impress his superiors who had issued a special order against him; (b) the police officers arrested him to extort money by asking him to ransom his scooter which the police had confiscated; (c) no prior surveillance was conducted before he was arrested; (d) the informant was not presented in court; (e) his arrest was illegal because it was made without a warrant; and (f) there was no compliance with Section 21, R.A. No. 9165 or the chain of custody rule on seized drugs. 16

The People, through the Office of the Solicitor General, maintains that the lower courts correctly found Ruiz guilty of the crime charged. 17 As established through the testimony of PO1 Garcia, his arrest was effected through a legitimate buy-bust operation that was regularly conducted, properly documented, and coordinated with the PDEA. 18 The Office of the Solicitor General also argued that Ruiz failed to present sufficient evidence to substantiate his claim of frame-up; his (Ruiz') evidence also failed to overcome the presumption of regularity in the performance of official duties by the public officers in the case. 19 THE COURT'S RULING After due consideration, we resolve to ACQUIT Ruiz, as the prosecution's evidence failed to prove his guilt beyond reasonable doubt. Specifically, the prosecution failed to show that the police complied with paragraph 1, Section 21, Article II of R.A. No. 9165, and with the chain of evidence requirement of this Act. Every criminal case starts with the constitutionally-protected presumption of innocence in favor of the accused that can only be defeated by proof beyond reasonable doubt. The prosecution starts the trial process by presenting evidence showing the presence of all the elements of the offense charged. If the prosecution proves all the required elements, the burden of evidence shifts to the accused to disprove the prosecution's case. Based on these presentations, the court must then determine if the guilt of the accused has been proven beyond reasonable doubt. It may happen though that the prosecution, even before the presentation by the defense, already has failed to prove all the elements of the crime charged, in which case, the presumption of innocence prevails; the burden of evidence does not shift to the accused, who no longer needs to present evidence in his defense. SEIDAC In a prosecution for the illegal sale of a prohibited drug, the prosecution must prove the following elements: (1) the identity of the buyer and the seller, the object, and the consideration; and (2) the delivery of the thing sold and the payment therefor. All these require evidence that the sale transaction transpired, coupled with

the presentation in court of the corpus delicti, i.e., the body or substance of the crime that establishes that a crime has actually been committed, 20 as shown by presenting the object of the illegal transaction. In the present case, the object is marijuana which the prosecution must present and prove in court to be the same item seized from the accused. It is in this respect that the prosecution failed. The requirements of paragraph 1, Section 21 of Article II of R.A. No. 9165. A buy-bust operation gave rise to the present case. While this kind of operation has been proven to be an effective way to flush out illegal transactions that are otherwise conducted covertly and in secrecy, 21 a buy-bust operation has a significant downside that has not escaped the attention of the framers of the law. It is susceptible to police abuse, the most notorious of which is its use as a tool for extortion. In People v. Tan, 22 this Court itself recognized that "by the very nature of anti-narcotics operations, the need for entrapment procedures, the use of shady characters as informants, the ease with which sticks of marijuana or grams of heroin can be planted in pockets of or hands of unsuspecting provincial hicks, and the secrecy that inevitably shrouds all drug deals, the possibility of abuse is great. Thus, courts have been exhorted to be extra vigilant in trying drug cases lest an innocent person is made to suffer the unusually severe penalties for drug offenses." Accordingly, specific procedures relating to the seizure and custody of drugs have been laid down in the law (R.A. No. 9165) for the police to strictly follow. The prosecution must adduce evidence that these procedures have been followed in proving the elements of the defined offense. The first procedural safeguard that the police failed to observe (and which both the RTC and the CA failed to take into account) is that provided under paragraph 1, Section 21, Article II of R.A. No. 9165. This provision states: 1) The apprehending team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of

the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof. [Emphasis supplied.] DHSCEc The Implementing Rules and Regulations of R.A. No. 9165 further elaborate on the legal requirement by providing, under its Section 21 (a), that: (a) The apprehending office/team having initial custody and control of the drugs shall, immediately after seizure and confiscation, physically inventory and photograph the same in the presence of the accused or the person/s from whom such items were confiscated and/or seized, or his/her representative or counsel, a representative from the media and the Department of Justice (DOJ), and any elected public official who shall be required to sign the copies of the inventory and be given a copy thereof: Provided, further that non-compliance with these requirements under justifiable grounds, as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items. [Emphasis supplied.] The records utterly fail to show that the buy-bust team complied with these procedures despite their mandatory nature as indicated by the use of "shall" in the directives of the law and its implementing rules. The procedural lapse is plainly evident from the testimony of PO1 Garcia. ITcCSA Testifying on the handling of the seized marijuana, he stated that: Q: After he handed to you the one pack and then you handed to him the P200.00, what happened next? A: After verifying the contents and after convincing myself that the same is marijuana, I handed to him the money and raised my hand as a pre-arrange[d] signal.

xxx

xxx

xxx

Q: After you had arrested the person of the accused, what happened next? A: We brought him for medical examination and [thereafter] brought him to our office. ATaDHC xxx xxx xxx

Q: So what happened to the pack of marijuana that you were able to buy from the accused? A: I turned it over to our investigator and then he placed markings on the wrapper. xxx xxx xxx

Q: I am handing to you now the improvise [sic] wrapper. Is this the marking that you placed? A: xxx Yes, sir, RP-1. xxx xxx

Q: What happened after you have seized the item from the accused or after you have recovered this and placing [sic] markings? A: It was sent to the PNP Crime Laboratory for laboratory examination. 23 Thus, other than the markings made by PO1 Garcia and the police investigator (whose identity was not disclosed), no physical inventory was ever made, and no photograph of the seized items was taken under the circumstances required by R.A. No. 9165 and its implementing rules. We observe that while there was testimony with respect to the marking of the seized items at the police station, no mention whatsoever was made on whether the marking had been done in the presence of Ruiz or his representatives. 24 There was likewise no mention that any representative from the media

and the Department of Justice, or any elected official had been present during this inventory, or that any of these people had been required to sign the copies of the inventory. 25 In People v. Orteza, 26 the Court, in discussing the implications of the failure to comply with Paragraph 1, Section 21, Article II of R.A. No. 9165, declared: In People v. Laxa, where the buy-bust team failed to mark the confiscated marijuana immediately after the apprehension of the accused, the Court held that the deviation from the standard procedure in anti-narcotics operations produced doubts as to the origins of the marijuana. Consequently, the Court concluded that the prosecution failed to establish the identity of the corpus delicti. The Court made a similar ruling in People v. Kimura, where the Narcom operatives failed to place markings on the seized marijuana at the time the accused was arrested and to observe the procedure and take custody of the drug. CDHSac More recently, in Zarraga v. People, the Court held that the material inconsistencies with regard to when and where the markings on the shabu were made and the lack of inventory on the seized drugs created reasonable doubt as to the identity of the corpus delicti. The Court thus acquitted the accused due to the prosecution's failure to indubitably show the identity of the shabu. [Emphasis supplied.] We reached the same conclusion in People v. Nazareno 27 and People v. Santos, Jr., 28 and recently, in the cases of People v. Dela Cruz 29 and People v. De la Cruz 30 where we again stressed the importance of complying with the prescribed procedure. We also held that strict compliance is justified under the rule that penal laws shall be construed strictly against the government, and liberally in favor of the accused. 31 In addition, we also note that PO1 Garcia testified that he marked the confiscated items when he returned to the police station after the buy-bust operation. This admission additionally shows that the marking was not done immediately after seizure of the items, but only after a significant intervening time had lapsed, i.e., after the

buy-bust team had taken Ruiz to a lying-in clinic for a medical examination, 32 and from there, to the police headquarters. Significantly, Ruiz confirmed in his testimony that the buy-bust team first took him to the San Jose Lying-in Center, before proceeding to the police headquarters. 33 In People v. Sanchez, 34 we held that in case of warrantless seizure (such as a buy-bust operation) under R.A. No. 9165, the physical inventory and photograph of the items shall be made by the buybust team, if practicable, at the place they were seized, considering that such interpretation is more in keeping with the law's intent of preserving the integrity and evidentiary value of the seized drugs. 35 The prosecution, in the present case, failed to explain why the required inventory and photographing of the seized items were not practicable and could not have been done at the place of seizure. ECTAHc We further note, on the matter of identifying the seized items, that the lower courts overlooked the glaring inconsistency between PO1 Garcia's testimony vis--vis the entries in the Memorandum dated February 28, 2003 (the request for laboratory examination of the seized items) 36 and Physical Science Report No. D-250-03 dated February 28, 2003 issued by the PNP Crime Laboratory with respect to the marking on the seized items. 37 PO1 Garcia testified that he had marked the seized item (on the wrapper) with the initial "RP-1". 38 However, an examination of the two documents showed a different marking: on one hand, what was submitted to the PNP Crime Laboratory consisted of a single piece telephone directory paper containing suspected dried marijuana leaves fruiting tops with the marking "RGR-1" and thirteen pieces of rolling paper with the markings "RGR-RP1" to "RGR-RP13"; on the other hand, the PNP Crime Laboratory examined the following items with the corresponding markings: a printed paper with the marking "RGR-1" together with one small brick of dried suspected marijuana fruiting tops and thirteen pieces of small white paper with the markings "RGP-RP1" to "RGP-RP13". SacTCA

PO1 Garcia's testimony is the only testimonial evidence on record relating to the handling and marking of the seized items since the testimony of the forensic chemist in the case had been dispensed with by agreement between the prosecution and the defense. Unfortunately, PO1 Garcia was not asked to explain the discrepancy in the markings. Neither can the stipulated testimony of the forensic chemist now shed light on this point, as the records available to us do not disclose the exact details of the parties' stipulations. To our mind, the procedural lapses in the handling and identification of the seized items, as well as the unexplained discrepancy in their markings, collectively raise doubts on whether the items presented in court were the exact same items that were taken from Ruiz when he was arrested. These constitute major lapses that, standing unexplained, are fatal to the prosecution's case. 39 To be sure, Section 21 (a), Article II of the IRR offers some flexibility in complying with the express requirements under paragraph 1, Section 21, Article II of R.A. No. 9165, i.e., "non-compliance with these requirements under justifiable grounds as long as the integrity and the evidentiary value of the seized items are properly preserved by the apprehending officer/team, shall not render void and invalid such seizures of and custody over said items." In Sanchez, we clarified that this saving clause applies only where the prosecution recognized the procedural lapses, and thereafter explained the cited justifiable grounds. 40 We also stressed in Sanchez, that in such case, the prosecution must show that the integrity and evidentiary value of the evidence seized have been preserved. 41 These conditions were not met in the present case, as the prosecution, in the first place, did not even recognize the procedural lapses the police committed in handling the seized items. Had the prosecution done so, it would not have glossed over the deficiencies and would have, at the very least, submitted an explanation and proof showing that the integrity and evidentiary value of the seized items have been preserved. EAICTS The chain of custody requirement

In Lopez v. People, 42 we explained the importance of establishing the chain of custody of the confiscated drugs, as follows: As a method of authenticating evidence, the chain of custody rule requires that the admission of an exhibit be preceded by evidence sufficient to support a finding that the matter in question is what the proponent claims it to be. It would include testimony about every link in the chain, from the moment the item was picked up to the time it is offered into evidence, in such a way that every person who touched the exhibit would describe how and from whom it was received, where it was and what happened to it while in the witnesses' possession, the condition in which it was received and the condition in which it was delivered to the next link in the chain. These witnesses would then describe the precautions taken to ensure that there had been no change in the condition of the item and no opportunity for someone not in the chain to have possession of the same. While testimony about a perfect chain is not always the standard because it is almost always impossible to obtain, an unbroken chain of custody becomes indispensable and essential when the item of real evidence is not distinctive and is not readily identifiable, or when its condition at the time of testing or trial is critical, or when a witness has failed to observe its uniqueness. The same standard likewise obtains in case the evidence is susceptible to alteration, tampering, contamination and even substitution and exchange. In other words, the exhibit's level of susceptibility to fungibility, alteration or tampering without regard to whether the same is advertent or otherwise not dictates the level of strictness in the application of the chain of custody rule. [Emphasis supplied.] cCESTA The chain of custody requirement is essential to ensure that doubts regarding the identity of the evidence are removed through the monitoring and tracking of the movements of the seized drugs from the accused, to the police, to the forensic chemist, and finally to the court. 43 It is important enough as a concern that Section 1 (b) of Dangerous Drugs Board Regulation No. 1, Series of 2002 44 (which implements R.A. No. 9165) specifically defines chain of custody.

b. "Chain of Custody" means the duly recorded authorized movements and custody of seized drugs or controlled chemicals or plant sources of dangerous drugs or laboratory equipment of each stage, from the time of seizure/confiscation to receipt in the forensic laboratory to safekeeping to presentation in court for destruction. Such record of movements and custody of seized item shall include the identity and signature of the person who held temporary custody of the seized item, the date and time when such transfer of custody were made in the course of safekeeping and used in court as evidence, and the final disposition;2009jur In the present case, while PO1 Garcia duly testified on the identity of the buyer and seller, on the consideration that supported the transaction, and on the manner the sale took place, 45 the prosecution's evidence failed to establish the chain that would have shown that the marijuana presented in court was the very item seized from Ruiz at the time of his arrest. (a) The first crucial link in the chain of custody

to the PNP Crime Laboratory, this piece of evidence does not establish the latter's identity as the police inspector to whom PO1 Garcia turned over the marijuana, and who subsequently made the corresponding markings on the seized items. (c) The subsequent links in the chain of custody

The evidence on record relating to the subsequent links in the chain of custody from the police inspector to the PNP Crime Laboratory did not identify the person who submitted the seized marijuana to the PNP Crime Laboratory for examination. Whether it was the Police Inspector Chief SDEU is not clear from the evidence that only shows that he signed the request for the laboratory examination of the seized marijuana to the PNP Crime Laboratory. At the same time, the identity of the person who had the custody and safekeeping of the seized marijuana, after it was chemically analyzed pending its presentation in court, was also not disclosed. cDIHES In this regard, Sections 3 46 and 6 47 (paragraph 8) of Dangerous Drugs Board Regulation No. 2, Series of 2003 48 require laboratory personnel to document the chain of custody each time a specimen is handled or transferred until the specimen is disposed. The board regulation also requires the identification of the individuals participating in the chain. The available records in the case fail to show compliance with this regulation. Given the procedural lapses pointed out above, serious uncertainty hangs over the identification of the seized marijuana that the prosecution introduced into evidence. In effect, the prosecution failed to fully prove the elements of the crime charged, creating a reasonable doubt on the criminal liability of the accused. As we pointed out in the opening statement of our Ruling, this brings the case to a situation where the defense does not even need to present evidence as it has no viable case to meet. We need not therefore discuss the specific defenses raised. Nor do we need to discuss the lower courts' misplaced reliance on the presumption of regularity in the performance of official duties, except to state that the presumption only arises in the absence of contrary details in the

The first crucial link was from the time the marijuana was seized by PO1 Garcia to its delivery to the police investigator at the police headquarters. Only PO1 Garcia testified to this link. From his own testimony, he did not mark the seized marijuana after it was handed to him by Ruiz; he only marked it at the police station when he turned it over to the investigator. In the interim, he and the rest of the buy-bust team had taken Ruiz to a lying-in clinic for medical examination. The evidence does not show who was in possession of the marijuana during the ride from the crime scene to the lying-in center, and from the lying-in center to the police station. DTEHIA (b) The second link in the chain of custody

The second link in the chain of custody of the seized marijuana is from PO1 Garcia to the police investigator. The identity of this police investigator to whom the custody of the seized marijuana was turned over was not disclosed. Although a reading of the Memorandum dated February 28, 2003 shows that a certain Ferdinand Lavadia Balgoa, as Police Inspector Chief SDEU, prepared the request for the laboratory examination of the seized marijuana

case that raise doubt on the regularity in the performance of official duties. Where, as in the present case, the police officers failed to comply with the standard procedures prescribed by law, there is no occasion to apply the presumption. 49 We close with the thought that this Court is not unaware that in the five years that R.A. No. 9165 has been in place, the rate of cases that resulted in acquittals and dismissals was higher than the rate of conviction. 50 Under PDEA records, the dismissals and acquittals accounted for 56% because of the failure of the police authorities to observe proper procedure under the law, among others. 51 A recent international study conducted in 2008 showed that out of 13,667 drug cases filed from 2003 to 2007, only 4,790 led to convictions (most of which were cases of simple possession); the charges against the rest were dismissed or the accused were acquitted. 52 The present case is now an added statistic reflecting our dismal police and prosecution records. Without casting blame, we call the attention of the authorities to exert greater efforts in combating the drug menace using the safeguards that our lawmakers have deemed necessary for the greater benefit of our society. We cannot afford to fail either in combating the drug menace or in protecting the individual rights and liberties we have enshrined in our Constitution. Either way, the consequences of continued failure are hard to imagine. IcCEDA WHEREFORE, premises considered, the Decision dated May 10, 2006 of the Court of Appeals in CA-G.R. CR.-H.C. No. 00954 is REVERSED and SET ASIDE. Accused-appellant Ruiz Garcia y Ruiz is hereby ACQUITTED for failure of the prosecution to prove his guilt beyond reasonable doubt. He is ordered immediately RELEASED from detention, unless he is confined for any other lawful cause. Let a copy of this Decision be furnished the Director of the Bureau of Corrections, Muntinlupa City for immediate implementation. The Director of the Bureau of Corrections is directed to report to this Court within five days from receipt of this Decision the action he has taken. Copies shall also be furnished the Director General, Philippine

National Police, and the Director General, Philippine Drugs Enforcement Agency, for their information. IHDCcT The Regional Trial Court is directed to turn over the seized marijuana to the Dangerous Drugs Board for destruction in accordance with law. SO ORDERED.

STATE v. TATUM 58 Wn.2d 73 (1961) 360 P.2d 754 THE STATE OF WASHINGTON, Respondent, v. RALPH TATUM, Appellant.* No. 35383. The Supreme Court of Washington, Department Two. April 6, 1961. Moore & Rabideau, for appellant. Roger L. Olson, for respondent.

[ 58 Wn.2d 74 ]

DONWORTH, J. Ralph Tatum (hereinafter called appellant) was convicted of the crime of first-degree forgery and was sentenced to life imprisonment as an habitual criminal. The essential facts of the case are summarized as follows: One William Tousin, of Pasco, received monthly welfare checks from the state of Washington. In February, 1960, Tousin did not receive his check (the checks were generally mailed to a rooming house in Pasco where Tousin resided.) The mail was normally left on a window ledge in the hallway of the rooming house. Appellant resided at the same place. Tousin's February check for $28.90 was endorsed and cashed at Sherman's Food Store in Pasco by someone other than the payee, Tousin. An employee of the store, Caroline Pentecost, testified that although she could not specifically recall the above-mentioned transaction, the initials appearing on the face of the check were hers. She also testified that whenever a check was presented to her for payment at the store, the store manager had instructed her to initial it and then insert it into a "Regiscope" machine. This machine is designed to simultaneously photograph, through two separate lenses, both the check and the person facing the machine. When it was discovered that the endorsement of the payee was a forgery, the Regiscope film of the transaction was sent to the Regiscope distributor in Portland to be developed. The processed film shows both the check and the person of appellant (from his waist up) with the food store in the background. Upon the trial, both the negative and the print therefrom were admitted in evidence, over appellant's objection. This appeal presents two questions for our consideration: (1) Were the Regiscope films (the negative and the print) authenticated sufficiently to warrant their admission into evidence? (2) Did Phillip Dale, the Regiscope distributor, qualify as an expert witness with respect to the filming process despite the fact that he was not a photographer by profession? [ 58 Wn.2d 75 ] [1] At the outset, with respect to the question of the admissibility of the Regiscope films, it should be noted that this court has for many years encouraged the admission and use of demonstrative evidence, including photographs. See Kelly v. Spokane, 83 Wn. 55, 145 Pac. 57 (1914); Norland v. Peterson, 169 Wn. 380, 13 P.2d 483 (1932); Cady v. Department of Labor & Industries, 23 Wn.2d 851, 162 P.2d 813 (1945). There is equally wellestablished precedent for the proposition that the admission or rejection of photographs as evidence lies within the sound discretion of the trial court. See Quayle v. Knox, 175 Wn. 182, 27 P.2d 115 (1933); State v. Hardamon, 29 Wn.2d 182, 186 P.2d 634 (1947); State v. Little,57 Wn.2d 516, 358 P.2d 120 (1961). We have also held that the trial court's discretion

extends to the sufficiency of identification. See Kellerher v. Porter, 29 Wn.2d 650, 189 P.2d 223 (1948), and the cases cited therein. [2] What quantum of authentication do courts require before a photograph may be admissible in evidence? It is simply this that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated. See 9 A.L.R. (2d) 899. The photograph need only be sufficiently accurate to be helpful to the court and the jury. See Hassam v. J.E. Safford Lbr. Co., 82 Vt. 444, 74 Atl. 197 (1909); Blake v. Harding, 54 Utah. 158, 180 Pac. 172 (1919). [3] Witness Pentecost testified that she recognized the background shown in the picture as that of the food store, and, as mentioned previously, she also testified as to the store's standard procedure of "regiscoping" each individual who cashed a check at the store. Phillip Dale testified at length concerning the Regiscope process. The testimony of these two witnesses taken together amounted to a sufficient authentication to warrant the admission of the photograph (both the print and the negative) into evidence. The authentication supplied by the testimony summarized above, of course, did not preclude appellant from [ 58 Wn.2d 76 ] attempting to prove that the individual portrayed was someone other than appellant, that the photograph was inaccurate in one or more respects, that appellant was somewhere else at the moment the photograph was taken, or any other such defense. But these arguments go to the weight rather than to the admissibility of the exhibits in question. In our opinion, the Regiscope exhibits, coupled with the other evidence produced by the state, sufficed to establish a prima facie case of first-degree forgery. [4, 5] The second question (whether or not witness Dale properly qualified as an expert witness respecting the Regiscope process) presents less difficulty. The fact that Dale was not a professional photographer and may have not understood all of the technical details of the process, did not, from an evidentiary standpoint, disqualify him from expressing an opinion in his testimony as to the possibility of altering a given Regiscope print. This court has many times held that the question of whether or not a witness is qualified to express an expert opinion lies within the sound discretion of the trial court. See Wilson v. Wright,52 Wn.2d 805, 329 P.2d 461 (1958); Kelly v. Valley Constr. Co.,43 Wn.2d 679, 262 P.2d 970(1953); and White v. Fenner, 16 Wn.2d 226, 133 P.2d 270 (1943). In view of witness Dale's testimony that he personally had developed "four to five hundred thousand" individual Regiscope films, we hardly think that the trial court abused its discretion in this regard. The judgment of the trial court is affirmed.

FINLEY, C.J., MALLERY, OTT, and HUNTER, JJ., concur.